No Authority

Every morning, Donna Thomson takes in the mountainous Colorado landscape to calm her nerves before diving into what she knows will be an arduous legal battle. The former Bastrop County Justice of the Peace said she moved to the Centennial State two years ago to clear her mind and physically protect herself from being targeted by certain Texas judges. She alleges they were becoming increasingly retaliatory toward her because she openly questioned their actions and rulings.

Although she believes Texas’ judiciary needs to be completely reformed, her main focus is ending the statewide practice of allowing constitutionally unqualified visiting retired judges who fail to file their Oath of Office with the Texas Secretary of State to preside over family, civil, and criminal cases. In 2019, Thomson’s attorney sent Bastrop County officials a letter demanding $4.25 million due to the county clerk’s alleged failure to require two visiting retired judges who presided over cases involving Thomson to file their Oath of Office.

Unlike elected and appointed officials who take the oath at the beginning of political office, visiting retired judges have no home court and so are required to take the oath on the first day of each new assignment.

“The district clerk has a duty to ensure that [the Oaths of Office] for judges in its county of responsibility are on file and reported to the Texas Secretary of State,” the attorney said.

In the letter, Thomson’s lawyer targets two visiting retired judges: David Squier and J.D. Langley.

Bastrop County officials scoffed at the demand, the former JP told me. Thomson added that her attorney’s letter was never about money but rather about sending a message that county leaders should be held accountable for failing to follow state laws.

In 2017, Visiting Retired Judge Squier sentenced Thomson to 15 days in jail after the JP allegedly failed to return several firearms to her ex-husband as part of a divorce agreement, and Langley presided over a case that found Thomson guilty of hitting an unattended car and leaving, a Class C Misdemeanor conviction that Thomson describes as baseless. Thomson is preparing to appeal this conviction through Texas’ Third Court of Appeals in Austin.

Defendants who seek the reversal of rulings by constitutionally unqualified judges face substantial barriers. The former JP knows the relevant case law well. She brought up the issue of Langley’s missing Oath of Office during her misdemeanor trial. If her appeal is successful, the rulings of hundreds of visiting retired judges who failed to take a new Oath of Office with every new case as required by state law could be overturned.

Chapter 25 of the Texas Government Code reads, “A person who is a retired or former judge shall, before accepting an assignment as a visiting judge of a statutory county court, take the oath of office required by the constitution and file the oath with the regional presiding judge. A retired or former judge may be assigned as a visiting judge of a statutory county court only if the judge has filed with the regional presiding judge an oath of office as required by this section”

Based on documents from the Secretary of State’s office, Langley has not filed the Oath of Office since 2014, the year he retired, but has filed his anti-bribery oath four times since then because judges need to file this oath before taking their constitutional Oath of Office. Plus, his most recent anti-bribery oaths (filed in 2018 and 2019) are based on an outdated form that was voided in 2001. Judge Langley did not respond to multiple requests for comment.

These decisions are not little. They involve life and death. In 2019, Langley signed the execution order of Larry Swearingen, a Black man sentenced to death in 2000 for the 1998 rape and murder of Melissa Trotter. Swearingen’s legal team sought to overturn his conviction based on the Department of Public Safety’s acknowledgment that one of its officers provided inaccurate testimony at Swearingen’s trial. Attorneys with the Innocence Project, a nonprofit that works to overturn wrongful convictions, filed a motion with the U.S. Supreme Court seeking to stay his execution, but the court denied the request and Swearingen was executed in mid-2019.

“It is unconscionable that Mr. Swearingen or anyone else should be executed based on science known to be false,” one of Swearingen’s attorneys told reporters at the time.

There is no honest judiciary within Texas’ system for assigning judges, said David Fisher, a government watchdog with a statewide reputation for investigating and toppling judges who fail to meet their offices’ constitutional or statutory requirements.

A recent Tarrant County criminal case is now being appealed based on a visiting retired judge’s failure to file his Oath of Office. In February, a jury found former Tarrant County JP Jacquelyn Wright guilty of three counts of tampering with a government document in a case presided over by Visiting Retired Judge Daryl Coffey, a longtime Tarrant County misdemeanor judge. The state’s constitution required Coffey to file his oath for that trial with the Texas Secretary of State and a spokesperson with that office said Coffey did not file his oath on the first day of Wright’s trial as required by state law. Coffey is far from the only Tarrant County judge who has failed to file the requisite oath before each new case following retirement.

Finding a legal professional willing to go on the record about the consistent failure of visiting retired judges to take their Oath of Office proved a near-impossible task. The Tarrant County Bar Association, SMU School of Law, the local district attorney’s office, and the Texas Commission on Judicial Conduct either ignored my request for comment or said that commenting would constitute giving “legal advice.”

Fisher thinks he knows why few if any legal professionals will acknowledge this flagrant violation of state law and constitutional precedent.

“If defense attorneys speak up, they will not get another court-appointed case,” he alleges, referring to an important source of income for many defense attorneys. “That is the state of Texas, and Texas has an imperial judiciary.”

A possible reason why judges are skipping their Oath of Office may be greed. The retirement system for judges, based on Chapter 837 of the government code, stops paying them once they file the Oath of Office after retirement. Filing sworn affidavits and anti-bribery oaths, which visiting retired judges do readily file, does not halt retirement payments.

“The retirement system shall suspend annuity payments to a retiree [who] takes the Oath of Office,” the government code reads. “Before a retiree takes the Oath of Office for a position as a judicial officer … the retiree shall notify the retirement system in writing of the resumption of office and the projected dates of service.”

Visiting retired judges earn around $500 a day while serving on assignment, so the government code is designed to prevent retired judges from double-dipping. Visiting retired judges may be defrauding taxpayers of millions per year while depriving thousands of defendants of their constitutional right to due process.

*****

Appellate attorneys seeking to overturn criminal convictions rely on rulings by the Texas Court of Criminal Appeals to argue their case. The 1941 ruling in Enloe v. State establishes the requirement that a judge’s ruling is valid only if he or she has filed the current Oath of Office. In early 1940, Judge C.H. Cain presided over the indictment of a defendant listed only by his last name, Enloe. Cain did not retake the oath that was revised in 1938, and due to that error, the Court of Criminal Appeals overturned Enloe’s murder conviction.

In 1951, the Texas Court of Criminal Appeals again ruled in Brown v. State that judges must use the current constitutional oath, or their rulings are void. District attorneys across the state closely follow rulings that can overturn criminal convictions.

For the past few decades, district attorneys across the state have relied on private online forums to share legal insights and advice. On one such forum managed by the Texas District and County Attorneys Association, a DA listed only as Eric queried his colleagues on the issue of expired Oaths of Office.

“If a judge fails to take the constitutional Oath of Office, has everything that occurred in that court been rendered a nullity?” Eric asked in 2002.

“Look at Prieto Bail Bonds v. State,” user John R responded, referring to the 1999 decision by the Texas Court of Criminal Appeals that said retired visiting judges cannot rely on expired oaths of office and so must renew their oaths after retirement before each assignment.

In 1993, Visiting Retired Judge Jerry Woodard of El Paso County ordered bondsmen with Prieto Bail Bonds to forfeit $40,000 because a defendant who held a bond with the company had failed to appear in court when Woodard called roll. Attorneys representing Prieto Bail Bonds appealed the ruling to the nine justices of the Texas Court of Criminal Appeals, whose 1999 decision overturned multiple lower court rulings and found that Woodard’s actions in 1993 were void because the visiting retired judge had not taken the oath after retiring. The ruling forced the county court to return the forfeited $40,000 to Prieto.

“Because Judge Woodard was required to take the constitutional oaths but did not do so, all judicial actions taken by him in the case below were without authority,” the court’s opinion reads.

The Texas Court of Criminal Appeals is equal in authority to the Supreme Court of Texas, meaning that Prieto Bail Bonds v. State carries the weight of a ruling by the highest court in the state. Prieto Bail Bonds v. State reiterated previous appeals court rulings that oaths do not survive the end of a term of office.

“We can see no logic whereby a [visiting retired] judge’s oath would survive an expired term of office,” the court ruled.

Although the state government code and past rulings by the Texas Court of Criminal Appeals are clear that visiting retired judges must take the Oath of Office on the first day of assignment, Texas’ multiple appeals courts, based on my review of related court opinions, place two barriers that make it all but impossible for defendants to successfully overturn their conviction, even when clear evidence of missing oaths is presented to appellate judges. Defendants must raise the issue during their initial trial, a term judges refer to as presenting arguments “prima facie.” Appellate courts also require defendants to submit the full administrative file — alternatively known as the minutes of the court — during the appeals process.

Following Prieto Bail Bonds v. State, several high-profile cases were presided over by visiting retired judges who, like Judge Woodard, failed to take their Oath of Office after retirement. In 2014, 41-year-old Jason Walters fatally shot a teen, Christopher Griffin, in Mineola, Texas. Walters was later cleared of criminal charges by a judge who had failed to take his Oath of Office upon appointment to the case, meaning that it has the potential to be overturned. According to news reports at the time, the murder was preceded by an argument between Walters and Dietrich Flournoy inside an EZ Mart. Walters went to his car, grabbed a pistol, and shot Griffin, possibly mistaking the teen for Flournoy.

Five years later as the trial date was set, District Judge Jeff Fletcher recused himself without disclosing why. Visiting Retired Judge Joe Clayton was assigned to the case, and, in mid-2019, the jury found Walters not guilty. Walters’ defense team never disputed the fact that Walters shot Griffin but argued that the defendant pulled the trigger in self-defense.

The verdict “was wrong,” said Christopher Griffin’s father, James Griffin, to reporters following the verdict. “I do not think justice was served here at all. I pray God will bless this town, this system, and those who want justice for Chris.”

Based on Secretary of State documents, Clayton, who did not reply to my request for comment, has never filed an Oath of Office before beginning an assignment as a visiting retired judge, including in this case.

In 2018, Clayton, again without taking the mandated Oath of Office, signed the death warrant for Randall Mays for the murder of two Henderson County deputies earlier that year. One year later, Clayton halted that order after Mays was diagnosed with schizophrenia. The U.S. Supreme Court has long ruled that prisoners cannot be executed if they do not understand the reason they are being put to death. In 2020, the Texas Court of Criminal Appeals granted Mays a stay of execution that indefinitely protects him from being executed.

Judge Langley, who presided over the execution of Larry Swearingen, is currently assigned to another high-profile criminal case, that of Rodney Reed.

Reed has spent more than two decades on death row for the alleged 1996 rape and murder of Stacey Stites in Bastrop County. Reed was set to be executed in late 2019, but the Innocence Project took up his case and filed motions to overturn his conviction. Administrative Judge Olen Underwood assigned Langley to oversee Reed’s claim of innocence.

Innocence Project attorneys argued that prosecutors involved in Reed’s original trial hid evidence that Reed and Stites were romantically involved and that Stites was heard having loud arguments with her fiancé, Jimmy Fennell, a police officer who was the prime suspect in her murder for nearly a year. In 2021 and after hearing two weeks of testimony, Langley denied Reed’s request for a new trial. Innocence Project lawyers took the case to the state Court of Criminal Appeals, where it has yet to be heard.

“Nationally recognized experts have completely debunked the forensic case against Mr. Reed, and even the state’s pathology expert has agreed that central points at trial were false,” the Innocence Project said at the time. “We hope the Court of Criminal Appeals recognizes that he should be given a new trial.”

Reed remains on death row but without an execution date. The U.S. Supreme Court recently agreed to review when prisoners can enter new DNA evidence into their appeals, a decision that could finally give Reed’s legal team the opportunity to enter new evidence. The Texas Court of Criminal Appeals has previously ruled that Reed waited too long to seek DNA testing.

Watchdog Fisher said he forwarded evidence of Langley’s expired oaths to attorneys with the Innocence Project, but the nonprofit failed to question Langley’s constitutional qualifications during both Swearingen’s and Reed’s appeals.

Another constitutionally unqualified visiting retired judge, J. Manuel Bañales, is currently presiding over a case involving three defendants accused of murdering Breanna Wood in Nueces County in 2016. Bañales has only two anti-bribery oaths on file (dated 2015 and 2021) and no Oath of Office on file since he retired in 2010. Plus, neither anti-bribery oath matches the constitutionally required language adopted by state Congress in 2001. Specifically, the two documents are missing this: “Under penalties of perjury, I declare that I have read the foregoing statement and that the facts stated therein are true.”

Bañales did not respond to multiple requests for comment.

*****

Through her appeal, former JP Wright’s legal team will argue that Visiting Retired Judge Coffey was not statutorily or constitutionally qualified to preside over her case, the former due to his lack of senior judge status and the latter for his failure to file his Oath of Office on the first day of assignment to her case.

“Pursuant to Texas Government Code, the undersigned Presiding Judge assigns the Honorable Daryl Coffey, Senior Judge, to Criminal District Court No. 3,” Tarrant County Judge David Evans wrote on Jan. 19, 2022, even though Coffey has never held or sought the title of senior judge. That distinction can be designated only by Texas Chief Justice Nathan Hecht. A spokesperson for Hecht confirmed that Coffey never sought senior judge status, meaning that, based on rulings by the Texas Court of Criminal Appeal, more than 200 of his decisions since 2015 were without authority.

Wright faced three charges of tampering with a government document. Conversely, the former JP claims she merely failed to update the homestead exemption on one of her homes, something that had never been prosecuted as a crime in Tarrant County.

Representing Tarrant County, prosecutors Tommy Brown and Lloyd Whelchel argued that Wright, by not updating her homestead exemption, had tampered with the form used by the Tarrant Appraisal District, meaning prosecutors paradoxically argued that she tampered with something without touching it. The jury found Wright, who had no previous criminal record, guilty of two misdemeanor charges and one felony. The retired JP maintains that she was targeted by the district attorney’s office for purely political reasons. Wright told me that her appeal, like Thomson’s, aims to compel judges to follow the law.

The Texas Secretary of State and Tarrant County Clerk recorded zero oaths filed by Coffey from 2014 to the present. Coffey’s signed Statement of Officer, commonly referred to as the anti-bribery oath, was not signed on the correct form.

A missing Oath of Office may also void rulings by Robert Brotherton, a local visiting retired judge who has filed only one of two constitutionally required oaths, the anti-bribery one, since Dec. 31, 2018, when he retired. Brotherton, based on documents from the Texas Secretary of State, also requested senior status while still serving as an active judge, which goes against Chapter 75 of the Texas Government Code. Retiring judges have a 90-day window after retirement to request senior judge status from Chief Justice Hecht, who may have disregarded state law when awarding Brotherton the title of senior judge regardless. Brotherton maintains a fairly active schedule as a visiting retired judge.

The appeals process is draining, both financially and emotionally, Thomson told me. The former JP dipped into her retirement to be able to afford legal counsel as she pushes forward with a case that may finally compel visiting retired judges to file the anti-bribery oath and Oath of Office before presiding over civil, family, and criminal court cases.

“If you can solve the oath issue, people will put more faith in the judicial system,” Thomson said. “This is the very system that is supposed to protect your constitutional rights, and judges are choosing visiting judges based on politics and who is friends with whom. It’s a buddy system.”

Lawyers and the general public need to be taught about the importance of the Oath of Office, the former JP continued.

“The more people are educated, the more they can educate their attorneys,” she said. “Or they put the judge on notice. ‘Hey judge, I’m watching you. I’m watching everything you do. Do you have an oath on file? No? Please step down. I need someone who has oaths on file.’ ”

Although the issue of visiting retired judges dodging their oaths hasn’t made statewide news, one day Thomson v. State may be cited by defendants seeking to overturn rulings by judges who were never constitutionally qualified to rule on a case. Thomson said there are defendants who have exhausted their appeals, not knowing that the retired judge who found them guilty had no authority to preside in the first place.

“They are exhausting their appeals,” Thomson said. “Well, they haven’t really exhausted them because they had visiting judges, so they will be starting over again. Maybe they will have the ability to fight their charges with attorneys who aren’t afraid of corrupt judges anymore.”

This article has been updated to correct a reference to Chapter 25 of the Texas Government Code.