Commission: County judge's action does not violate suspension order

Judge Tracy Gilbert, 418th Judicial District Court, is sworn in by Judge Craig Doyal during the Montgomery County Ceremony to Administer Oath of Office on Sunday at the Lone Star Convention Center. Despite some critism, the State Commission on Judicial Conduct says the action was not a violation of Doyal's suspension order issued June 28. less Judge Tracy Gilbert, 418th Judicial District Court, is sworn in by Judge Craig Doyal during the Montgomery County Ceremony to Administer Oath of Office on Sunday at the Lone Star Convention Center. Despite some ... more Photo: Michael Minasi, Staff Photo: Michael Minasi, Staff Image 1 of / 3 Caption Close Commission: County judge's action does not violate suspension order 1 / 3 Back to Gallery

A frustrated Montgomery County Judge Craig Doyal responded Tuesday to allegations on social media that he violated his amended suspension order by swearing in 418th state District Court Judge Tracy Gilbert on New Year's Day.

The Woodlands-based attorney Eric Yollick took to Facebook Monday alleging Doyal "defied and violated" the order, issued in August by the State Commission on Judicial Conduct, by participating in the ceremony.

"...Doyal performed a 'judicial function' when he administered the oath of office to 418th District Judge Tracy Gilbert," Yollick stated in a post on his Facebook page. "Chapter 602 of the Texas Government Code lists who may administer oaths in the State of Texas. Although notaries public, peace officers under very limited conditions, and certain others may administer oaths, the power of a County Judge to administer an oath derives from his presiding over the Constitutional County Court, which is a court of record. Craig Doyal administering an oath of office arises from his 'judicial functions' from which the Commission has suspended him.

"Doyal violated the terms of the State Judicial Conduct Commission's suspension by administering the oath, which is a 'judicial function.'"

However, according to the commission, the swearing-in event was ceremonial and did not violate his suspension order that prohibits him from performing any judicial function associated with the office of county judge. The order allows him to perform his non-adjudicated, administrative (and ceremonial) duties.

The original suspension order was issued June 28 following Doyal's June 24 indictment on a charge he conspired to circumvent the Texas Open Meeting Act regarding negotiations surrounding the $280 million road bond approved by voters in November 2015. Also indicted on the same charge were Precinct 2 Commissioner Charlie Riley, Precinct 4 Commissioner Jim Clark and political consultant Marc Davenport. An indictment is a formal charge, not a conviction or indicator of guilt.

On July 26, Doyal along with high-profile Houston defense attorney Rusty Hardin appealed the suspension. The SCJC issued an amended suspension order Aug. 2 allowing Doyal to return to work with pay but still prohibited him from any judicial function.

While some county judges in the state of Texas serve in both an administrative and judicial role, that has not been the case in Montgomery County and Doyal is not involved in the adjudication of any cases.

A March 27 trial date has been set.

"These allegations are from a person that has repeatedly made false claims in attempt to undermine our commissioners court," Doyal said. "While they continue to try and tear down this great county, I will continue my work to help this county prepare for growth that is coming by enacting sound policies and making wise decisions."

According to Doyal, he contacted the County Attorney's Office in mid-December requesting guidance regarding his participation in the swearing-in ceremonies Sunday. A total of 19 newly elected or re-elected officials were sworn in to office Sunday at the Lone Star Convention Center in Conroe. Gilbert was the only official Doyal swore in.

In a memo to Doyal dated Jan. 3, Assistant County Attorney B.D. Griffin outlined the events regarding Doyal's participation in the swearing-in ceremony, noting he contacted the commission for guidance on the issue. The memo stated that Seana Willing, executive director of the SCJC, responded to Griffin's request and stated it is her opinion that Doyal's action to swear in Gilbert is administrative and not judicial.

Griffin stated that while Willing's response is "not an 'official' pronouncement of the Commission, I feel it reasonable to rely upon the opinion of the Executive Director of the Commission that issued the order of the suspension."

"In my opinion," Griffin stated. "The ceremonial administration of an oath of office is 'non-adjudicatory" and would have no reasonable effect on the public's confidence in the judiciary. It also appears that the Executive Director of the Commission clearly sees the issue in the same light."

Willing confirmed she did send the County Attorney's Office a response noting in her opinion that the swearing-in "would not be a violation of the order that is in place." She added that if someone files a complaint with her office, the commission would review it, but it does not have legal authority to say whether the swearing-in is a judicial function.

A person, Willing said, does not have to be a judge to administer oath.

"This was purely a ceremonial function," said Doyal, adding that Gilbert already had taken his oath prior the ceremony.

In fact, before taking the stage and stating the oath, each elected official signs documents with a notary public as the official record of the swearing-in.

"I didn't sign anything," Doyal said.

Nathan Jensen, director of court administration, issued a statement Tuesday regarding Gilbert's swearing-in.

"On January 1, 2017, prior to the public, ceremonial oath administered by County Judge Craig Doyal, 418th District Court Judge Tracy A. Gilbert took his official Oath of Office before Kim Roe, a notary public for the State of Texas," the release stated. "All District and County Court at Law judges in Montgomery County regularly take their official Oath(s) of Office before a notary public in advance of the ceremonial oaths that are administered publicly."

According to the Local Government Code Chapter 602, an oath can be administered by various people including a county judge, a judge or retired judge, a county treasurer and justice of the peace.

Willing said her office has not received any complaints regarding Doyal and the commission was not reviewing the situation.

Doyal, along with Clark, Riley and Davenport were investigated during a six-month grand jury proceeding regarding whether certain members of Commissioners Court violated TOMA during negotiations in August 2015 with members of The Woodlands-based Texas Patriots PAC that led to the $280 million November road bond referendum, which voters passed. An open records request by The Courier showed Davenport communicated with certain members of the court regarding the bond, specific projects and dollar amounts.

A grand jury handed up the indictments June 24

Gilbert did not return calls before press time.

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Sec. 602.002. OATH MADE IN TEXAS. An oath made in this state may be administered and a certificate of the fact given by:

(1) a judge, retired judge, or clerk of a municipal court;

(2) a judge, retired judge, senior judge, clerk, or commissioner of a court of record;

(3) a justice of the peace or a clerk of a justice court;

(4) an associate judge, magistrate, master, referee, or criminal law hearing officer;

(5) a notary public;

(6) a member of a board or commission created by a law of this state, in a matter pertaining to a duty of the board or commission;

(7) a person employed by the Texas Ethics Commission who has a duty related to a report required by Title 15, Election Code, in a matter pertaining to that duty;

(8) a county tax assessor-collector or an employee of the county tax assessor-collector if the oath relates to a document that is required or authorized to be filed in the office of the county tax assessor-collector;

(9) the secretary of state or a former secretary of state;

(10) an employee of a personal bond office, or an employee of a county, who is employed to obtain information required to be obtained under oath if the oath is required or authorized by Article 17.04 or by Article 26.04(n) or (o), Code of Criminal Procedure;

(11) the lieutenant governor or a former lieutenant governor;

(12) the speaker of the house of representatives or a former speaker of the house of representatives;

(13) the governor or a former governor;

(14) a legislator or retired legislator;

(15) the attorney general or a former attorney general;

(16) the secretary or clerk of a municipality in a matter pertaining to the official business of the municipality;

(17) a peace officer described by Article 2.12, Code of Criminal Procedure, if:

(A) the oath is administered when the officer is engaged in the performance of the officer's duties; and

(B) the administration of the oath relates to the officer's duties; or

(18) a county treasurer.