Bench Blues

The judiciary starts scrambling after state cuts in visiting judges

That created more controversy about accountability -- having local cases heard by a judge who hadn't been selected by the electorate, or who had actually been voted out of office by constituents. Complaints by former district attorney Johnny Holmes led to a general policy of not using defeated judges unless a sitting jurist specifically requested him or her for that court.

"Visiting judges are not responsible to the voters; they are not responsible to anybody, really," says Rosenthal. "Except if they want to get invited back again, they treat the other judges nicely. But I've never understood why anybody allowed defeated judges to be here, anyway."

Defenders of the system say accountability can actually be higher for visiting judges, because their rulings usually get more scrutiny and they aren't invited back if their performance is subpar.

Visiting judges also rule in cases where the local judiciary may have conflicts of interest. Attorneys say there have been instances when an outside judge will be pressed into service to make rulings in controversial or politically sensitive cases, so the elected judges won't have to suffer the fallout from voters or influential sides in the litigation.

Tightening up the visiting judge programs is also expected to have hard financial impacts for some visiting judges who need the income or the time to become vested in the judicial retirement system. The visiting judges could work as little as one day a month and still receive retirement credit for working the entire month (the state paid the rest of the contribution to their retirement for that month). A bill in the last session by state Senator Jon Lindsay proposed to end that setup by requiring judges to make the full contribution for retirement. An aide says the bill died in committee.

Elected judges for Harris County are bracing for the final budget allocations before making any formal adjustments to the visiting judge cutbacks. The state comptroller's office confirmed that the budget's final appropriation for the fiscal year beginning in September includes $3.4 million for visiting judges -- down from last year's $7.3 million (visiting judge funds actually exceeded last year's allotment by nearly $3 million). However, the new budget still must be certified by Comptroller Carole Strayhorn and signed by Governor Rick Perry.

Administrative Judge Davidson says he has heard that funds for about 1,000 days of visiting judges have been designated for the 34-county judicial region that includes Houston. The presiding jurist of this region, Olen Underwood of Conroe, is expected by July to determine how many of those days will be allotted for Harris County, which has about 60 percent of the population of the judicial region.

However, local judges are already preparing for the worst.

"We're just going to have to put our heads together and come up with ways to cover for one another," says Stricklin. "We'll have to come up with a lot more creative ways to deal with it. And we'll have to deal with it -- there's no two ways about it."

Rosenthal says he won't alter his approach to district attorney office operations, although he concedes that the pace of death penalty trials may be slowed down "a little bit" by the lack of visiting judges to handle jury selection.

"The judges are going to have to schedule their docket a little bit differently to allow for their vacations and whatever," Rosenthal says. "But other elected judges can pick up the slack on some of those things. It's just a matter of scheduling it correctly."

Rosenthal also notes that other new legislation -- not mentioned by judges -- may offset the reduction in visiting judges. Lindsay sponsored a new law that allows Harris County's judges to seek approval from Commissioners Court for the creation and funding of magistrate positions to help with special dockets such as drug cases. The magistrates would take pleas and handle some other uncontested or preliminary matters for the regular judges.

The district attorney says the judges, who pushed for the legislation, say only one magistrate would be used, although the bill sets no limit on how many could be appointed -- assuming that commissioners would agree to fund the positions.

Some skeptics see irony in the Republican-controlled state government slashing funds for the all-GOP county judiciary. Is that betrayal?

"I wouldn't put it that way at all," Stricklin says. "I realize that everybody had to have budget cuts. These are just what we wound up with on our end."

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