San Marcos Police Chief Howard Williams says he thinks a local district judge did the right thing by refusing to sign a search warrant to draw blood from a San Marcos solo who on Aug. 30 was detained after a car accident on suspicion of drinking and driving. The lawyer was later released without being charged.

San Marcos is in rural Hays County, and 428th District Judge Bill Henry was the only judge available that night, Williams explains. Police eventually drove attorney Kyle Maysel home without charging him because, without the blood evidence, they felt they couldn't prove a case in court, he explains.

Williams notes that Henry and Maysel are longtime "peers or colleagues." He says about Henry's recusal, "He felt he was not a neutral and detached magistrate in this case. … The judge did precisely what the judge was supposed to do."

William notes that the incident happened during San Marcos' very first "no refusal" weekend, when officers automatically seek a blood-draw warrant if a driver refuses other sobriety tests. He says he's already "fixed" the problem of what happens if the judge signing search warrants must recuse himself because he knows the person suspected of drunk driving.

"We've already got another judge lined up who said he will do it, and he's not going to know a lot of these attorneys we have in town," Williams explains.

Maysel didn't return a telephone call seeking comment. Henry says that judicial ethics rules prevent him from talking about the incident.

Austin solo Lillian Hardwick, who is an expert witness and consultant on judicial ethics, explains that Texas Rules of Civil Procedure 18(b) lays out the grounds for a judge's recusal. A judge must recuse himself if he has a bias in favor of a person or a prejudice against him, or in other situations when the judge's "impartiality may reasonably be questioned."

"For the judge to say, 'Hey, I just can't do this' — that's a phenomenal thing for that judge to do," says Hardwick. She notes that it's more common for a litigant to file a motion asking a judge to recuse himself rather than to have a judge recuse himself on his own initiative.

Fender Bender

An Aug. 30 Texas Peace Officer's Crash Report says that Maysel was driving a Dodge Ram pickup in downtown San Marcos. He was "backing out of an angled parking lot," and he hit a Ford Fusion that was stopped at a traffic light. Maysel, the other driver and the other driver's passenger were not injured. Regarding Maysel, the crash report lists "Backed Without Safety" as the "contributing factor" in the crash and "Had Been Drinking" as a factor that "may have" contributed.

Two police incident reports provide more detail.

San Marcos Officer J. Scott wrote that Maysel was "unsteady on his feet and his speech was slurred" and he had the "odor of an alcoholic beverage on his breath." The officer asked Maysel how much he drank, and he first replied a "couple" but later said "three or four."

Maysel agreed to do a horizontal gaze nystagmus test.

"At first he had a hard time following simple instructions," wrote Scott. "Maysel had a hard time following my finger and said I was trying to trick him. … Maysel then became argumentative and said he was not going to do a 'Dog and Pony show.' "

Maysel refused to complete a one-leg-stand test, and J. Scott handcuffed and put him in the back of his patrol car. Maysel refused to give a breath or blood sample, and Scott called another officer, T. Scott, to explain "the No Refusal Blood Draw program."

"When Ofc. T. Scott explained the Blood Draw Warrant procedures, Maysel asked what judge would be signing it. When Ofc T. Scott said Judge Henry, Maysel said he knew him," wrote J. Scott.

The two officers and Maysel went to the Central Texas Medical Center, and the officers completed a blood draw warrant. J. Scott signed the warrant and "swore to everything" during a telephone call with Henry.

T. Scott then took the warrant to Henry to review and sign.

"Maysel made a comment that he was at a retirement function earlier in the day with Judge Henry," wrote J. Scott.

In a separate incident report, T. Scott wrote that, when he was at the judge's house, Henry confirmed he knew Maysel and that they had both been at a retirement party at the courthouse.

"The Judge denied there being alcohol at the party[.] … Judge Henry stated since he has a working relationship with Maysel and knows about his drinking problem he felt it made him subject to being called as a witness should the case come to trial. Judge Henry decided not to sign the warrant for these reasons," wrote T. Scott.

J. Scott wrote he didn't feel "it was in good faith" to arrest Maysel, citing "numerous issues" in the investigation. He cited the unsigned warrant and a long wait time — two hours and 45 minutes — from the "time of transport." He also cited other factors, including issues with his "Mic," the environment and procedures with the blood draw program

J. Scott escorted Maysel to his vehicle to "gather some items" and took him home.