by Cris Feldman

Texas Lawyer broke an incredible story on Sept. 11 about how some of the state’s biggest law firms, which have a steady stream of cases before the Texas Supreme Court, subsidize that court’s clerks in what may be a violation of the plain language of the "Bribery and Corrupt Influence" chapter of the state penal code. [See "Bonuses to Judicial Clerks Who’ve Accepted Firm Jobs Questioned," Texas Lawyer, Sept. 11, 2000, page 1.]

It was mind-boggling enough that the state’s leading lawyers and judges have had a longstanding practice that may violate an important ethics law. In an added twist, the high court now suggests that it may seek a way to circumvent this public-interest law instead of halting a practice that further erodes public confidence in Texas courts.

Hiring partners at Vinson & Elkins and Baker Botts — two firms that have brought more than 300 legal issues before the court in recent years — acknowledged in the Texas Lawyer article that they pay advance bonuses worth more than $10,000 to Supreme Court clerks who contract to work for them after their clerkship. The firms also pledge to pay an extra $35,000-a-year "clerk bonus" on top of these clerks’ $115,000 starting salary at the firms.

A judicial employee commits an offense if he "solicits, accepts or agrees to accept any benefit" from a person with an interest in a matter before the tribunal, according to §36.08(e) of the Texas Penal Code. Section 36.09 states that, "A person commits an offense if he offers, confers or agrees to confer any benefit on a public servant that he knows is prohibited by law from accepting." Both offenses are Class A misdemeanors.

Section 36.08(e) expressly prohibits clerks from receiving compensation from future employers who have business before the court. The plain language of §36.09 makes it difficult for anyone to argue that participating firms are not violating the penal code. Partners at some firms admit to subsidizing clerk salaries, effectively eliminating a defense that compensation was provided for an "independent" relationship. The firms could also argue that they do not know the law. However, it would be ironic for these pillars of the legal community to plead a mistake-of-law defense.

In an interesting twist, recent case law holds that the Texas Supreme Court itself could be criminally liable. Ex Parte AISD holds that a governmental entity can be held criminally liable for the misdemeanor acts of its employees under principles of agency.

The penal code prohibition against private subsidization of judicial employees is solid public policy. Clerks are well-positioned to influence litigation, as the court’s own job bulletin makes clear. "Each briefing attorney [clerk] assists their judge with general legal research, study of petitions for review, preparation for oral argument and research, and writing opinions," the bulletin states. "Unlike most appellate courts, the Supreme Court permits briefing attorneys to sit in on its conference deliberations. Sometimes, briefing attorneys will be asked to make oral presentations or answer questions about the law or the facts during conference."

Easy to Read

Despite the plain language of the law, Chief Justice Tom Phillips said in a Sept. 12 Dallas Morning News article that the private subsidies large firms pay to his court’s clerks pass legal muster. Phillips and Justice James Baker say in the Texas Lawyer and Morning News articles that the court periodically reviews the clerk subsidies and that conflicted clerks are isolated from cases involving prospective employers who have paid such benefits.

Contrary to the court’s explanations, these clerk perks do not pass legal muster just because the court says that conflicted clerks are isolated from cases involving their future employers. The clear intent of §36.08 of the "Bribery and Corrupt Influence" chapter of the penal code was to shield the public from even the appearance that private money paid to court employees could throw a case. Violations do not require a quid pro quo. Texas Ethics Commission Advisory Opinion No. 425 directly supports this point.

Travis County Attorney Ken Oden and Texas Ethics Commission general counsel Karen Lundquist said in the Texas Lawyer article that the clerk perks may violate the penal code. Yet Oden, who, according to the Morning News, has been meeting privately with the court to discuss the situation, told a reporter that the law might be changed to allow private subsidization of court employees. No prosecution is expected.

In the wake of this scandal, it still is not clear whether some clerks have participated in the court’s internal deliberations on cases involving a clerk’s future employer. Once again, the credibility of Texas’ judiciary has been marred by the appearance that private money could be influencing court proceedings.

The Texas Supreme Court and the Travis County Attorney’s Office are pursuing the wrong response to the clerk-perk scandal. Rather than altering this law or seeking semantic ways to allow special-interest money to keep flowing to court employees, the court should simply comply with the plain language of the law and halt this practice. To air out its chambers, the court also should disclose all the perks received by its clerks and specify which of these clerks have been recused from which cases.

Other jurisdictions prohibit private subsidies of court employees and still attract excellent clerks. The prestige of clerking for a high court guarantees these public servants lucrative future employment. In order to protect and support its clerks effectively, the court should disallow this practice and seek an increase in salary for  its employees. This would be a much more ethical and prudent course than doing violence to black-letter law.

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Cris Feldman is a National Association for Public Interest Law fellow and tracks campaign contributions in the Texas judicial system. Feldman is the staff attorney for Texans for Public Justice, a nonprofit, nonpartisan advocacy and research organization. His e-mail address is cfeldman@tpj.org.

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