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The University of Houston should "make it a condition of employment for judges on its teaching roster to step out of cases in which UH or a UH official is a party."

Faculty Judges Should Recuse in University Cases
On August 18, 2005, the Faculty Rights Coalition, led by Dr. Wolfgang Hirczy de Mino, addressed the University of Houston Board about the recusal of faculty judges from cases in which the university or a university official is a party.  His presentation is reprinted below.


Wolfgang Hirczy de Mino, Ph.D.

Good morning.  I would like to address the Board on an ethics issue today.

In doing so, I speak on behalf of faculty members who have employment grievances, and on behalf of the general public, which has an obvious interest in public integrity issues.

In December, 2004 we submitted an open records request to the General Counsel's Office requesting that UH identify all judges who worked for the University of Houston and heard cases in which the University was a party.

The General Counsel's Office refused to give us anything, but the Attorney General's Open Record Division eventually ruled in our favor earlier this year, and compelled disclosure of the information we sought (OR2005-01643 and OR2005-03942).

Relevant Facts

The records UH was required to release show that judges who were hearing cases against the University were receiving money from the University through the University of Houston Law Foundation. One judge admitted in open court that the arrangement was put in place to circumvent state law which prohibits them from being paid directly because they are already being paid for full-time work as state officials. He refused to recuse himself.

The records show that federal judges were paid too. One of them recently stated that the $1,000 he had received was not enough to sway him. He too declined to recuse himself, stating that his connection to UH was only moderate.

We beg to differ.

If a private litigant were to offer the judge hearing her case $1,000, she would likely be charged with attempted bribery. One thousand dollars is certainly not de minimis under penal provisions governing corruption in public service. A juror would be disqualified as matter of cause had he or she received even a small amount of money, or a favor, from a defendant.

But even if we were to concede that $1,000 isn't enough to constitute undue influence, where do you draw the line?

In any event, all of the Adjunct Professor-Judges on the list given to us received more than $1,000 because they are paid at least $1,500 to team-teach a class. Many have taught during successive semesters.

How Much is Too Much?

The top beneficiary of the University's largess was paid at total of almost $30,000 in less than six years and sat in multiple cases involving the University of Houston. He was not even listed as an Adjunct Professor.

We believe that judges and justices who are on the University's payroll (or are paid out of a third-party fund) should recuse themselves when the University comes before them as a litigant, whether as a plaintiff, or — which is more common — as a defendant.

We would further submit that judges already have that obligation, at least ethically, if not in the form of legal rule that can be enforced by a litigant, not to mention the general public.

We also believe that such financial ties between the university and local judges should not be concealed from the public. The General Counsel's refusal to release the payment records, and even the names of the judges, is itself indicative that they think this is something that better be covered up.

Public Disclosure

We think that the relationships between universities and judges ought to be exposed. And so does Attorney General Greg Abbott. He ruled in our favor on this issue.

The Justices on the local First and Fourteenth Court of Appeals are already disclosing the law schools they graduated from. Justice George C. Hanks, specifically, states on his official web page that he is an adjunct professor at the University of Houston Law Center. To his credit, he recently recused himself from an appeal involving a UH official.

The trial court judges should do so likewise.

We readily concede that this University has no control over these Adjunct Professors in their capacity as judges. UH does have control, however, over whether they are hired in the first instance, and whether they are reappointed.

To the extent the University is involved in litigation, it also has control over whether it discloses the conflict of interest and suggests recusal or transfer to another court in the cases where this issue arises. It should make that disclosure as a matter of course.

The University's General Counsel is aware of these judicial conflicts because all litigation is handled through her office in conjunction with the litigation division of the AG's Office. Hiring decisions are also reviewed by Counsel, and are subject to Provost approval.

A plaintiff suing the University, by contrast, may not know that the judge hearing his case has accepted something of value from the Defendant University, and thus cannot file a motion to recuse under Rule 18 of the Texas Rules of Civil Procedure. Nor do the judges themselves typically volunteer the information.

A Modest Proposal

To safeguard the integrity of the judicial process in employment litigation, and in other suits involving UH, such as condemnation proceedings and disputes with contractors, we make a very modest and common-sense proposal:

That UH stop hiring judges who have failed to recuse themselves from cases in which UH or a UH official is a party; and

That UH make it a condition of employment for judges on its teaching roster to step out of cases in which UH or a UH official is a party.

Proposed Solution Would Not Unduly Burden the University

Venue for suits by and against the University of Houston is fixed in Harris County and Travis County. See Tex. Educ. Code § 111.33.  UH would thus be free to hire district and county judges from other counties, assuming that doing so does not violate some other law.

Appeals from suits filed in Harris County are heard by the First and Fourteenth Courts of Appeals in Houston. Cases in Travis County go to the Third Court of Appeals in Austin. That would still leave eleven other judicial districts from which UH could recruit justices to teach at its law school.

As for federal courts, the affected judges are those in the Southern District-Houston Division and the Western District-Austin Division. UH would be free to hire judges from the other divisions of the Southern and the Western District, as well as from the other federal districts in Texas, assuming again that doing so does not violate other law.

Request for Attorney General Opinion

We realize that not everyone agrees with us, especially not the judges who have a stake in the matter. Should there be members on this Board of Regents who find it acceptable that the University pay judges who adjudicate cases involving the University (or dismiss them without even reaching the merits), we respectfully request that the Board, or any of its members, ask for an Attorney General's Opinion on the matter.

As members of the public we have a statutory right to obtain information under the Open Records Act, but we have no standing to request an Attorney General's Opinion under Tex. Gov't. Code 402.042 and 402.043.

You do.

Please make use of that authority, and do your part to enhance the perception and reality of integrity of our judicial system in Harris County, not to mention the image of the University of Houston.

Thank you for your attention.


2038 ½ Lexington
Houston, Texas 77098

Note: The above address was taken from http://www.faculty-rights-coalition.com/services.html, accessed 02/08/06.  For additional information and links to documents, see the Faculty Rights Coalition Web site.


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