Brazos judges violated Open Meetings Act on decision to fire probation director

Judges in Brazos County met privately three times last month to plan the firing of probation director John McGuire, reported the Bryan College Station Eagle (Feb. 1):

No criminal charges are expected against the judges who voted to terminate Brazos County's probation director on Friday after discussing the matter in private earlier in the month in admitted violation of the Texas Open Meetings Act.

District Judge Travis Bryan notified Brazos County District Attorney Jarvis Parsons of a possible violation on Tuesday. Bryan said he immediately contacted Parsons after attorneys made him aware of the situation.

After researching the matter and discussing it with attorneys around the state, including former Brazos County District Attorney Bill Turner, Parsons declined to prosecute because no action was taken during the discussions and there did not appear to be a "willful violation."

Instead, he drafted a memo for the judges informing them on the Open Meetings Act "so this never happens again," Parsons said, adding that the previous judges' meetings were "not an intentional or deceptive misstep but one that needed to be corrected." As of Friday evening, Parsons said he had delivered the memos to three of the five judges.

Bryan and District Judge Kyle Hawthorne, along with county court-at-law judges Jim Locke and Amanda Matzke, unanimously voted on Friday to terminate the employment of John McGuire, who had been director of the Brazos County Community Supervision and Corrections Department since 2010. Judge Steve Smith was not in attendance due to a State Bar Rules Committee meeting in Austin that was scheduled in November.

The judges cited a loss of confidence in McGuire following more than a year of complaints as the reason for his dismissal following a public meeting and a 35-minute closed session.

The notice of the meeting was signed by the county clerk just before noon on Tuesday, providing the required 72-hour notice.

Bryan, however, acknowledged Friday that the judges had met three times earlier in the month to discuss McGuire's employment while unaware that their meetings regarding the head of a probation department would be subject to the Open Meetings Act, as noted in a 1996 opinion by then-Texas Attorney General Dan Morales. 

Fascinating. With some frequency over the years Grits has had various judicial candidates approach me to discuss issues, the job, whether they should run, and a variety of other topics. Something I always tell folks running for local criminal courts, particularly people who've never been a judge before, is that one of the most important duties they'll never get credit for is serving as a de facto board of directors member for the probation department. Most candidates are unaware until I say that that such service would number among their duties. And scarce few judges indeed take those duties as seriously as they warrant upon assuming office.

In a past life, your correspondent spent 14 years performing opposition research for political campaigns, including numerous judicial races around the state. It was then that I learned screwups at the probation department - for which judges are responsible but only vaguely aware - could be an excellent source of a blind-side attack to which an incumbent would typically fumble and flounder in reaction.

Since I'm out of the game, here's a pro tip on developing campaign attacks against judges: It can be frustrating as an opposition researcher to vet judicial incumbents' casework for campaign attacks because wannabe judges rightly don't want to risk future recusal by campaigning on issues about which they may later rule. Thus, attacks involving individual decisions or stuff that happened in court typically must be relegated to surrogates, who in turn can be difficult to recruit and even harder to control. Unlike other political candidates, judicial campaigns as a practical matter can't (or shouldn't) address the legal issues over which they'll eventually preside. Judges' policy decisions, however, are fair game, and their role as de facto boardmembers for the probation department is a policymaking function. So if you're looking for areas where a judicial campaign can spend money on direct attacks, critiquing management of the probation department is an area where your candidate can come out and say something specific and critical about an incumbent, like, "They violated the Open Meetings Act!" Or, "They were ignorant of the laws and duties governing their office." etc..

Management of probation departments is one of those dark underbelly areas of government where the press seldom venture and few but the most experienced judges take the responsibility as seriously as they probably should, as evidenced by this episode in Bryan. Nobody in the local judiciary understood the management role they were playing and how it differed from their function in the legal process. They're not alone, I can assure you, they just happened to get exposed.