An administrative judge on July 22 refused to recuse 204th District Judge Lena Levario from a case in which she held Dallas County District Attorney Craig Watkins in contempt, but did not assess a punishment against the DA. Now the case heads back to Levario, presumably so she can assess a fine against Watkins.
In March, Watkins refused to testify in a hearing before Levario in which wealthy Dallas heir Albert G. Hill III sought to have several mortgage fraud indictments against him quashed. Hill alleged the criminal charges were the result of influence allegedly exerted on Watkins by Hill's former civil lawyer Lisa Blue Baron, with whom Hill has a multimillion-dollar attorney-fee dispute. Levario ultimately dismissed the charges against Hill [See "DA Craig Watkins Files Recusal Motion in Contempt Proceeding," Texas Lawyer, July 22, 2013].
Monday's recusal ruling came after a day-long hearing on July 19th in which lawyers representing Watkins put on witnesses including a former Dallas County employee who testified that Levario told her: "I'm going to serve up Craig Watkins to the FBI on a silver platter" while they dined at a fast food restaurant in Fort Worth.
The witness, Jill Reese, also testified that while she sat at a table with two other Dallas County employees who were attending software training in Fort Worth, that Levario stated: "All you have to have is enough money to have the right attorneys with the right relationships to control the outcome of a court case in any courtroom including mine."
Reese also alleged that Levario "demanded" that she be fired and that she lost her job earlier this month.
Robert Hinton, of Dallas' Robert Hinton & Associates who is serving as attorney pro tem in the recusal hearing, called two other Dallas County employees who sat at the table who stated that they didn't hear Levario make those statements.
Jerry Barker, who serves as the court coordinator for Dallas' County Criminal District Court No. 6 who sat at the table with Levario testified: "I can say that she [Levario] never brought up Craig Watkins' name in my presence."
Dana Nixon, who serves as the criminal district court manager for Dallas County who also sat at the table, testified that she also did not hear Levario make any negative statements about Watkins.
Earlier this year, John Ovard, presiding judge of the 1st Administrative Judicial Region of Texas, appointed 30th District Court Judge Bob Brotherton of Wichita Falls to hear whether Watkins should be held in contempt. During a July 15 hearing, Brotherton granted Watkins' plea to the jurisdiction motion because Levario's order was not specific enough.
Heath Harris, Watkin's first assistant, was present during the hearing before Brotherton. During the recusal hearing, Harris testified that Levario went into Brotherton's chambers and tried to explain her ruling to Brotherton.
"At that time it appeared she was trying to influence the judge," Harris testified.
Russell Wilson, a Dallas assistant DA who represents Watkins, argued in the recusal hearing that they'd met their burden to show that Levario was biased against Watkins through their witness testimony.
"The standard is whether a reason person member of the public might think that might be a question. That's easily met," Wilson argued.
But Hinton said they hadn't met their burden, especially through Reese's testimony.
"What evidence do they have?" Hinton asked, pointing to Reese's testimony. "What on earth could Lena Levario have done to her? She [Reese] works for the county commissioners court, not the district courts.''
Ovard, who presided over the recusal hearing, ruled against Watkins.
"I've determined that the burden of proof has not been made by the movant. Consequently, I deny the amended motion to recuse," Ovard said from the bench.
At the conclusion of the hearing, Hinton said he was pleased with Ovard's ruling.
"Now Judge Levario can finish the order and it will be referred to Judge Brotherton I suppose," Hinton says.
"She's already said that's only going to do a fine. The question becomes is it between a penny or $500 and that's about the size of it," Hinton says, referring to the statutory maximum fine a judge can impose for contempt.
Wilson said he respected Ovard's decision and would not appeal the ruling. Rather he says Watkins looks forward to a hearing on the merits over the contempt finding. Watkins has asserted that he has a "prosecutorial discretion" not to disclose the internal workings of his office, including why an indictment is pursued against a defendant.
"What we can't live with is a wrongful finding of contempt. And this case has never been about whether or not there was a fine that was imposed, it's about whether a sitting district attorney, district attorneys throughout the State of Texas and in the United States have a right to assert a privilege that's been asserted since we've had laws," Wilson says. "And so, the fine really isn't our issue. No fine works when there was no crime."
Levario has not yet issued a new contempt order against Watkins.