Of the more than 600 Texas jurists who serve the state, most of them end up making at least one or two controversial decisions during their time on the bench. But in his 36 years as a judge, David Peeples of San Antonio has seemingly made a lifetime of tough calls.
Until his retirement late last year, Peeples spent 21 years as the presiding judge of the Fourth Administrative Judicial Region where he was regularly asked by his superiors to make politically fraught decisions that most jurists would just as soon avoid. He’s handled several cases seeking to remove elected public officials from office and countless rulings over whether his fellow judges should be recused from hearing high-profile civil and criminal cases because of alleged bias.
Because of Peeples’ reputation for handling delicate matters without a hint of politics in his decisions, Texas Supreme Court Chief Justice Nathan Hecht once referred to him as the judicial “gold standard” for handling hot cases.
Peeples still serves as a visiting judge and is still being asked by his judicial superiors to decide sensitive cases. For example, in February he dismissed an inquiry into whether Mclennan County District Attorney Abel Reyna committed perjury in the course of prosecuting the 2015 Twin Peaks restaurant motorcycle gang shootout in Waco, which left nine people dead.
Peeples, who recently joined San Antonio’s Prichard Hawkins Young as of counsel, spoke with Texas Lawyer about his toughest decisions, what lawyers have to prove before they can recuse a judge from their case, and what exactly a retired judge does as of counsel in a private law firm.
Texas Lawyer: I think it’s safe to say that you get called on to make decisions that no other judge wants to make—especially when it comes to removal of public officials and the recusal of your colleagues from important cases. How do you find yourself in this position so often?
Judge David Peeples: Most of those cases came to me after I had two or three decades of judicial experience. Recusals (which are common) and suits to remove public officials (which are rare) are important, and they ought to be decided by judges who have been around for a while.
I respectfully disagree with the suggestion that other judges don’t want to do these cases. Most of the judges I know are glad to get a hard case or a high-profile case once in a while. And retired judges are especially willing to take hard cases because they have experience and they no longer run for election. One reason I have done several of these is that during the 21 years that I was the presiding judge of the Fourth Region, I often assigned myself to recusal motions and to an infrequent suit to remove an officeholder. I did this because these cases are so important and I just thought I should do most of them myself.
I hope people know that judges step aside voluntarily in a lot of the political cases. I am referring to cases involving politics, hot-button issues, prominent or connected individuals that the judge knows personally, that kind of thing. When a high-profile case comes along, it is very common for the local judges to recuse voluntarily. Voluntary recusal usually happens under the radar and out of public view. In removal suits, the local judges are disqualified by statute, so someone from outside the county must be assigned to those cases.
TL: Plenty of Texas officials get in criminal or ethics trouble during the course of a year but few of them ever face removal proceedings. Could you explain legally why it is so difficult to remove them from office?
Peeples: Over the years, I have handled about 10 or 12 of these cases. I have seen several officeholders step down as part of a plea agreement or when they are facing a criminal or ethics case.
Apart from crime and real ethics violations, it should be pretty hard to remove an elected officeholder. In a democracy the right to choose our public officials is fundamental. It is a serious thing for a judge and jury to negate the results of an election. Sometimes it happens and should happen. But remember that there will always be someone who supported the other candidate and would love to see the winner thrown out. That is especially true at this time in our history. If removal of officials is too easy, people who supported the losing side (both Rs and Ds) might file a lot of removal suits.
So our law specifies that an officeholder may be removed for incompetence, official misconduct, or “intoxication on or off duty.” The law also provides two gatekeepers and gives each of them discretion to say yes or no to the removal lawsuit. First, the county attorney (or criminal district attorney) must decide to join the suit and bring it. Second, a judge from outside the county is assigned (by the regional presiding judge) to the case, and that judge decides whether citation should be issued. If either of these gatekeepers says no, the case is over. Our laws strike a reasonable balance, which basically says it should not be very easy to remove elected public officials from office. Obviously, we need the removal procedure, and sometimes judges and other officials have been removed. But statistically it does not happen often.
TL: In 2013, you decided not to remove then-Travis County District Attorney Rosemary Lehmberg after she was arrested for a DWI. There were plenty of politics at play in that case, but why did you ultimately decide she shouldn’t be removed from office?
Peeples: This was a suit to remove Travis County DA Rosemary Lehmberg for a terrible DWI incident. The law says an officeholder “may” be removed for “intoxication on or off duty.” For me there were several salient facts in the Lehmberg case. Even though no one was injured, she was very abusive and disrespectful to the arresting officers, who were simply doing their jobs. The DA is responsible for enforcing the DWI laws, yet this DA had violated those very laws. This was her first and only incident. Two days later, she took responsibility in court, pleaded no contest, and was sentenced to 45 days in jail. With credit for good behavior, under jail policies that apply to everyone, she was released after serving 22 days. She then completed a lengthy detox program in Arizona and returned to work. In a nutshell, she paid society’s penalty in the criminal case and got professional help. I thought that on balance she should not be removed. I was aware that public opinion on the case divided along partisan lines, but that is simply irrelevant to a judicial decision.
TL: Three years later you were tasked with deciding whether to remove then Dallas County District Attorney Susan Hawk over her mental health issues. This seemed to be a tougher call because you were called on to weigh whether Hawk’s struggles with clinical depression prevented her from holding one of the most important lawyer jobs in Dallas. Why did you decide to allow her to keep her job?
Peeples: In her first year as the DA in Dallas, Susan Hawk suffered depression and exhibited strange and erratic behavior. For example, she fired several high-level employees shortly after hiring them. And early in her term she left town and went missing for several weeks to undergo treatment. I was assigned the suit to remove her from office. After a full hearing, I decided not to order citation issued and dismissed the case, basically because the evidence of erratic behavior occurred before she underwent treatment, and there was no evidence of that kind of conduct during the several months after her treatment.
TL: Politics sometimes entered into recusal hearings you handled—most famously in 2014 when you decided to allow Austin state district Judge John Dietz to hear a long-running school finance case after Gov. Greg Abbott’s office accused the judge of favoritism toward parties challenging the alleged unconstitutional funding system. Was that an easy call?
Peeples: Actually, when I was assigned to hear the recusal motion, the judge had already heard the case. A lawsuit was filed in 2013 asserting that the Legislature’s school financing system was unconstitutional. The case was filed in Austin and assigned to Judge John Dietz, who had tried a predecessor school funding case several years earlier. Attorney General Abbott’s office was defending the law. No one tried to recuse Judge Dietz at the start of the case. The state sought to recuse him after a 16-week nonjury trial. The basis for recusal was that during the trial Judge Dietz had ex parte contacts about proposed findings of fact with the lawyers who were challenging the law.
At a daylong recusal hearing, the evidence showed that all parties had agreed during the trial that everyone would be drafting their proposed findings of fact and conclusions of law and submitting them to the court during the case. They were to do this without copying opposing counsel. The evidence at the hearing (emails and orders and discussions in open court) showed that the lawyers knew about this procedure. This was an unusual way of doing things. But everyone knew about it and agreed to it. Judge Dietz did it this way because he wanted everyone to be working on their proposed findings all along, instead of waiting until the last minute. He also wanted them to shelter their thought processes from the opposing lawyers while trying the case. So he said everyone’s proposed findings would go to the judge but not to opposing counsel until the case was over.
The state learned that there had been some back-and-forth discussions between the judge and the plaintiffs about their proposed findings. The state argued that this showed unfairness and justified recusal. It was unusual. But for me the question was not whether this way of doing things was “best practices.” It wasn’t. But this was an enormous case, and Judge Dietz had a lot on his mind. Sixteen weeks of trial, 20,000 exhibits, 1,500 or so findings of fact taking up about 300 pages. With hindsight we can say he should have periodically reviewed with the lawyers the procedure they were following. But the question in a recusal motion is whether the judge’s impartiality might be reasonably questioned. From the evidence, I had no doubt whatsoever that Judge Dietz thought everyone understood the procedure completely and this was a reasonable understanding based on the emails and discussions in court.
TL: You have considered countless recusal motions while serving as presiding judge of the Fourth Administrative Judicial Region of Texas. What in your opinion are the elements a party needs to successfully recuse a judge from sitting on their case?
Peeples: The bottom-line question in any recusal motion is whether the judge’s impartiality might be reasonably questioned. There are a couple of clear areas, and one big gray area.
Rule 18b lists several things that are clear grounds for recusal—for example, personal bias, knowledge of the disputed facts, one of the judge’s relatives has an interest in the case, a close relative is a lawyer in the case. But these are so clear and explicit that judges recuse voluntarily and no one ever hears about it.
There is also one thing that is clearly not enough for recusal. Rule 18a itself says that a judge’s rulings in the case cannot be the sole basis for recusal. This is in the text of the rule itself. Now think about this. In every pretrial hearing, someone likes the ruling and someone doesn’t. One side goes away happy and the other side goes away unhappy. Just imagine a system in which the unhappy side could get a hearing before another trial judge and remove the first judge from the case because of pretrial rulings! So Rule 18a recognizes this and says if bad rulings is all you have, that is not enough.
The gray area is recusal when “the judge’s impartiality might reasonably be questioned.” This is the issue in almost all recusal motions. What does it mean? Well, it depends upon the facts. Maybe the judge has a cozy relationship with the opposing party, or has some bad history with your client that might justify recusal. Or maybe the judge has made careless, indiscreet statements about the case or about a lawyer. I have recused judges who made accusations against lawyers, or derogatory statements about them, which called into question the judge’s impartiality.
What else? Maybe the judge has discussed the merits of the case ex parte with one side. Enormous or disproportionate campaign contributions for or against a judge might be a basis, although the law recognizes the reality that our partisan system of judicial selection requires fundraising, and most of the funding comes from lawyers. I have granted recusal motions when one party’s sister worked for the judge; when a lawyer had represented the adverse party in the judge’s own lawsuit a few years before; and when the judge had complained about the lawyer to the state bar. I once recused a judge from DWI cases while his own DWI case was pending in a different court. But most recusal hearings involve a lot of discretion and could go either way.
The most important feature of our recusal rules is that the judge who is challenged does not decide his own recusal motion. The motion is heard by a second judge, chosen by the regional presiding judge. This second judge procedure takes us a long way toward fairness and transparency.
TL: Last year you stepped down as administrative judge, joined a private law firm in San Antonio in an of counsel position, and still sit as a visiting judge. How does the law firm utilize your services when you are ethically restricted from representing clients?
Peeples: Yes, for 36 years I went to work every day at the Bexar County Courthouse. That ended last summer. I am still a visiting judge and am also of counsel with Prichard Young LLP.
The law lets retired judges associate with a law firm and also sit by assignment as a visiting judge, and that is what I am doing. So, to answer your question, I don’t ever represent clients. I never go to the courthouse as a lawyer. When I go there, it is to help do the judicial work, to do whatever they need that day.
Under the law, I cannot plead or appear in court, and I have no desire to do that. I can’t sign briefs or motions, and I can’t go to court with anyone from the law firm. Judicially, when I am needed at the courthouse I go there as a judge and take whatever trials or hearings they assign to me. In San Antonio, it is mostly family law, and each side can object if they prefer that I not preside over their trial or hearing. I also sometimes get assigned to matters outside San Antonio, usually where a local judge has recused or the case maybe needs someone older who has been around for a while and is away from all the politics.
Concerning the Prichard Young law firm, I have an office to go to in the mornings, and my wife is very much in favor of that. While I am there, someone will occasionally ask for my thoughts on a legal matter, or how I interpret a particular opinion, or which direction I think the case law is trending. Maybe I’ll make suggestions on a brief or a motion, or challenge younger lawyers to consider other issues, or maybe discuss how to argue something. It is a change of pace for me. The senior lawyers there are very good, and I especially like being around the younger lawyers, who are bright and energetic. I also sometimes serve as an arbitrator. And I take more time off and go to the gym and read more.