FILED

SCR 21-0003
1/10/2022 5:12 PM
tex-60682233
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK

DOCKET NO. SCR 21-0003

IN RE: § BEFORE THE

§
INQUIRY CONCERNING § SPECIAL COURT OF REVIEW
§
HON. PAUL D. LILLY § APPOINTED BY THE
§
CJC Nos. 19-1767 & 19-1878 § SUPREME COURT OF TEXAS

THE COMMISSION’S POST-SUBMISSION REPLY BRIEF

TO THE HONORABLE MEMBERS OF THE SPECIAL COURT OF REVIEW:

The State Commission on Judicial Conduct (“Commission”) files its Post-Submission

Reply Brief in reply to Judge Paul Lilly’s Post-Hearing Submission Brief filed on December

23, 2021, and in support of the Commission’s allegations against the Honorable Paul D. Lilly

as detailed in its Charging Document filed on August 5, 2021. Because the arguments made in

Judge Paul Lilly’s Post-Hearing Submission Brief are without merit, the Commission, once

again, respectfully requests that the Special Court of Review: (1) impose, at a minimum, a

Public Admonition and Order of Additional Education against Judge Lilly for violations

committed in CJC No. 19-1767; and (2) impose, at a minimum, a Public Admonition and

Order of Additional Education against Judge Lilly for violations committed in CJC No. 19-

1878.

Initially, it should be noted that the bulk of what Judge Lilly’s presents as the facts of

the case – largely comprised from Judge Lilly’s testimony at his hearing before the

Commission 1 – is less a matter of undisputable fact and more a matter of credibility,

1
See Judge Paul Lilly’s Post-Hearing Brief, pp. 6-9 (entitled pp. 1-4).

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 particularly the credibility of Judge Lilly. This is so regardless of whether the Commission

offered any evidence specifically contradicting any or all of Judge Lilly’s testimony at the final

hearing on the merits. The Commission’s decision to not offer evidence attempting to refute

any and every piece of testimony previously provided by Judge Lilly regarding what are

otherwise immaterial facts should not be conflated with the notion that Judge Lilly’s credibility

is therefore somehow enhanced. Judge Lilly’s credibility or lack thereof is a matter for the fact

finder, this Special Court of Review, to determine. That being said, Judge Lilly’s credibility, for

reasons previously established in the Commission’s Post-Submission Brief is, at this point,

highly questionable. 2 Further, the Special Court of Review is free to read into Judge Lilly’s

unwillingness to testify on his own behalf whatever it wishes, including drawing an inference

that Judge Lilly was fully aware he would be unable to resolve the inconsistencies in his

previous statements upon cross-examination and, therefore, would appear less than credible.

I. CJC NO. 19-1767

A. EVIDENCE OF SPECIFIC RELATIONSHIPS OR SPECIFIC INSTANCES OF

BEHAVIOR IS NOT REQUIRED TO PROVE VIOLATIONS OF RELEVANT
ETHICAL STANDARDS

In his argument, Judge Lilly once again attempts to make the standard set by the

relevant ethical provisions a subjective one when he argues that the Commission has failed to

prove specific instances where a relationship of Judge Lilly’s influenced his judicial conduct. 3

Judge Lilly reinforces this notion when he states that “Canon 2B is focused on third parties

2
See The Commission’s Post-Submission Brief, notes 39-42 et. seq. (regarding Judge Lilly having denied multiple
times under oath at his hearing before the Commission that he set the bond on defendant Adam Ben Carter’s motion
to revoke then later acknowledging, at the final hearing on the merits, that he did in fact set the bond and failed to
consider required statutory factors when doing so), note 54 et. seq. (regarding Judge Lilly’s own witness, Carter,
directly contradicting, at the final hearing on the merits, Judge Lilly’s previous testimony at his hearing before the
Commission that he called Carter because Carter did not yet have an attorney at the time).
3
See Judge Paul Lilly’s Post-Hearing Brief, pp. 10-23 (entitled pp. 5-18).

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 and a judge’s relationship with them.” 4 Per Judge Lilly’s rationale, it is not enough for the

Commission to prove that Judge Lilly maintains the full authority of both a commissioned

peace officer and a presiding Constitutional County Court judge and in fact performs services

as both a peace officer and a judge. 5 According to Judge Lilly, in order to satisfy the standard

set by the relevant ethical standards, the Commission must prove a specific relationship of

influence, a specific act of bias, or that each and every act of service as a peace officer

performed by Judge Lilly proven by the Commission to have taken place must also have been

accompanied by a concomitant showing of bias, influence, or partiality from the Commission. 6

Once again, however, Judge Lilly attempts to misdirect. The focus of Canon 2B is not

about “third parties and a judge’s relationship with them” but, instead, something much

broader. The focus of Canon 2B, like the focus of Canon 4A(1) and Article V, Section 1-a(6)A

of the Texas Constitution, is about the impressions created in the minds of members of the

public – whether in individual cases, as was the case with the complainant in this matter, or in

general – and whether such impressions include perceptions of bias, influence, partiality, or

discredit upon the judge or the judiciary itself. This is further supported by the fact that Canon

2 itself is explicitly titled “Avoiding Impropriety and the Appearance of Impropriety in All of

the Judge's Activities.” Thus, once again, the standard is plainly an objective one and not

focused subjectively on any one instance of biased behavior or any one specific relationship.

Judge Lilly goes on to provide several cases – some focusing on relevant ethical

provisions and others focusing on when recusal of a judge is appropriate – purportedly

4
Id., at 11 (entitled p. 6).
5
Id., at 10-11 (entitled pp. 5-6).
6
Id.

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 supporting the argument that only specific instances of bias, influence, or partiality may

establish a violation of relevant ethical standards. 7 Judge Lilly states, “A review of recent of

cases where the Commission has found a violation on [sic] of Canon 4A(1) reveals that the

Commission itself generally requires specific actions or statements in a specific context in

order to ‘cast reasonable doubt’ on a judge’s capacity to act impartially.” 8

However, the cases cited by Judge Lilly are of little to no relevance as they either are in

no way factually similar, do not focus on interpretation of the relevant ethical standards,

address appellate issues which invoke an entirely different burden of persuasion, or involve

matters not at issue in the present case, such as the question of when recusal is appropriate.

More importantly, there is no indication within the holding or dicta of these cases nor within

the language of the relevant ethical provisions themselves that specific instances of conduct

or specific relationships must be a source of bias, influence, or partiality from a judge. The

relevant provisions merely prohibit any conduct which might create the impression that a judge

is subject to bias, influence, or partiality, or which might discredit the judiciary itself, whether

such conduct manifests with specific behaviors or generally through affiliations and

appearances. In other words, just because the cases which Judge Lilly cites happen to involve

specific instances of conduct in no way establishes that specific instances of behavior are

required to constitute violations of relevant ethical standards. Rather, under the language of

the relevant ethical provisions, mere affiliations can constitute violations of relevant ethical

standards since certain affiliations can create the impression of bias, influence, or partiality on

7
Id., at 11-14 (entitled pp. 6-9).
8
Id., at 14 (entitled p. 9).

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 the part of the judge or cast public discredit upon the judiciary itself. Yet, per Judge Lilly’s

rationale, a judge who was, for example, discovered to be a member of the Ku Klux Klan

would be justified in claiming that his membership alone would be insufficient to establish

that his non-judicial conduct created impressions of bias, influence, or partiality or otherwise

cast discredit upon the judiciary itself, and that only specific instances of racist behavior would

be sufficient to prove violations of relevant ethical provisions.

Judge Lilly then closes his argument by stating that the Commission’s position is a

“slippery slope” as the Commission’s rationale could be applied to judges who are former

police officers, prosecutors, or criminal defense attorneys. 9 Judge Lilly’s “slippery slope”

argument would make for an otherwise salient point if it weren’t for the obvious: there is a

stark contrast between former affiliations one has foregone for the sake of some other cause

and current affiliations one refuses to give up despite a prevailing cause. The Commission’s

position – while not enforcing upon but, instead, grounded within underlying principles

comprising the Separation of Powers Doctrine – can largely be summarized by the old adage

that a person cannot serve two masters. It is the Commission’s position that in attempting to

do so, a judge breaches ethical standards. Accordingly, such position is directly contradictory

to any implication by Judge Lilly that the Commission intends to apply its interpretation

towards those who have given up one master for another. This is not a case of Judge Lilly

being sanctioned by the Commission for being a former police officer while presiding as a

judge, this is a case of Judge Lilly being sanctioned for currently serving as a peace officer while

also presiding as a judge. Simply put, the “slippery slope” scenario which Judge Lilly posits

9
Id., at 22 (entitled p. 17).

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 does not reflect the facts of this case and, therefore, is not relevant.

B. JUDGE LILLY’S FOCUS ON PS-2000-1 IS MISPLACED

Similar to his Pre-Trial Submission Memorandum, Judge Lilly once again focuses

heavily on allegations that the Commission treats and relies upon PS-2000-1 (Commission’s

Ex. 1) as legal authority rather than the Canons and Texas Constitution themselves. 10

However, as the Commission adequately discussed in its Post-Submission Brief, Judge Lilly’s

focus on the legal authority or lack thereof of PS-2000-1 and the Commission’s reliance upon

such public statement is misplaced. 11 PS-2000-1 does not serve nor has the Commission ever

indicated that it served as any basis for its legal authority in this matter. 12 Instead, PS-2000-1

is merely a notice to the public – without citation to or discussion of supporting legal authority

– of the Commission’s position that concurrent service as both a commissioned peace officer

and presiding judge constitutes violations of relevant ethical provisions. 13 Accordingly, the

Commission does not consider PS-2000-1 “as an interpretation that is entitled to some sort

of Chevron deference” as Judge Lilly states. 14 Rather, the Commission considers its

interpretations of Canons 2B and 4A(1) and Article V, Section 1-a(6)A of the Texas

Constitution as propounded in its Charging Document and subsequent filings to be entitled

to such Chevron deference. 15

C. TCOLE’S PROCESSES AND PROCEDURES ARE NOT RELEVANT

Judge Lilly discusses the processes and procedures for obtaining and maintaining an

10
Id., pp. 15-18 (entitled pp. 10-13).
11
See The Commission’s Post-Submission Brief, Section IIC2.
12
See Commission’s Ex. 1.
13
Id.
14
Judge Paul Lilly’s Post-Hearing Brief, p. 16 (entitled p. 11).
15
See The Commission’s Post-Submission Brief, Section IIC5. See also Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984).

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 active peace officer’s license as set forth in statutes and rules enforced upon by the Texas

Commission on Law Enforcement (“TCOLE”). 16 Judge Lilly provides this background

because, in his own words, “To become a licensed peace officer is not a simple or easy process

and it is understandable why once obtained, a license holder would not want to allow his

license to go inactive.” 17 In other words, Judge Lilly would like the Special Court of Review

to be aware of how unfair it would be should he have to give up his peace officer license under

statutes and rules enforced by TCOLE if the Commission’s interpretations were adopted.

Even assuming it is the case that Judge Lilly would be forced to let his peace officer

license go inactive in order to ethically serve as a presiding judge, one cannot merely ignore

the fact that Judge Lilly chose to run for an elected office in a different branch of government

than which he already served. Accordingly, any looming injustice from the possibility of having

to let his license go inactive, assuming this is even true, was of his own making and choosing.

In other words, Judge Lilly can hardly be considered the victim in a scenario in which he was

not allowed to have his cake and eat it too.

More importantly, however, as sympathetic a plight Judge Lilly’s may or may not be,

the predominant fact of the matter is that TCOLE’s statutes and rules and how they interpret

such have no bearing as to the Commission’s interpretations of its own statutes and rules. The

injustices which may or may not exist within the processes for maintaining an active peace

officer’s license are irrelevant to a determination as to whether Judge Lilly’s dual service creates

impressions of bias, influence, or partiality on his part or otherwise casts public discredit upon

16
See Judge Paul Lilly’s Post-Hearing Brief, pp. 18-19 (entitled pp. 13-14).
17
Id., at 18 (entitled p. 13).

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 the judiciary itself.

D. ATTORNEY GENERAL LETTER OPINION NO. 92-35 AND THE

EMOLUMENTS CLAUSE ARE NOT RELEVANT

Judge Lilly goes on to argue that there is no Texas statute or regulation prohibiting dual

service, cites to an attorney general opinion from 1992 – Attorney General Letter Opinion

No. 92-35 – opining that a justice of the peace was not prohibited by the Emoluments Clause

or the doctrine of common-law incompatibility from also serving as an unpaid deputy sheriff

or deputy constable in a different county, and provides a detailed analysis of the Emoluments

Clause itself and why it does not apply. 18 However, the Commission has not disputed that the

Emoluments Clause does not necessarily prohibit dual service in all instances. As Judge Lilly

points out, the Emoluments Clause is inapplicable on its face and, therefore, the Commission

has never claimed such provision has any applicability to the present matter. Likewise, the

Commission does not dispute that Attorney General Letter Opinion No. 92-35 suggests that

dual service is not necessarily legally prohibited in all instances. However, such opinion was

issued in context to a justice of the peace and, therefore, is factually distinguishable from this

matter. Further, such opinion provides no interpretation whatsoever of Canons 2B and 4A(1)

and Article V, Section 1-a(6)A of the Texas Constitution, but, instead, focuses on the

Emoluments clause and the doctrine of common-law compatibility. Therefore, it too is

irrelevant.

More importantly, it matters not that the Emoluments Clause and Attorney General

Letter Opinion No. 92-35 suggest that dual service does not necessarily violate legal provisions

18
Id., at 20-21 (entitled 15-16). See also Op. Tex. Att’y Gen. No. LO-92-35 (1992); Article XVI, Section 40 of the
Texas Constitution (Emoluments Clause).

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 because the commission has not alleged that Judge Lilly’s conduct constitutes legal violations.

In fact, the Commission has not even alleged that Judge Lilly’s dual service in this specific case

constitutes a direct violation of the Separation of Powers Doctrine itself. None of this is

relevant, however, because as the Commission noted in PS-2000-1, “an act that is legal is not

necessarily an act that is ethical.” 19

The Commission’s legislative mandate is to enforce relevant ethical standards, and only

the Commission has the authority to enforce upon the relevant ethical standards (or, by

extension, Special Courts of Review such as this). Under such authority, the Commission

applies interpretations with intent to enforce the plain meaning of the ethical standards set

forth in the Texas Constitution and/or the Texas Code of Judicial Conduct. In this particular

case, it is the Commission’s interpretation that Judge Lilly’s dual service conveyed the

impression of bias, influence, or partiality on his part or otherwise cast public discredit upon

the judiciary itself. Its interpretation is based on the same principles as the Separation of

Powers Doctrine, but such doctrine is not the vehicle or authority upon which the

Commission enforces its interpretation, nor is PS-2000-1, despite Judge Lilly’s claims to the

contrary. Instead, such vehicle or authorities are those relevant ethical provisions the

Commission as invoked within its Charging Document, specifically Canons 2B and 4A(1) and

Article V, Section 1-a(6)A of the Texas Constitution. Thus, the Commission is both acting

upon its legislatively granted authority and enforcing upon relevant ethical standards with an

interpretation that is both reasonable and not in conflict with the plain language of such

provisions, grounded in the principles of the Separation of Powers Doctrine as it is.

19
Commission’s Ex. 1.

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 Further, in regard to the Commission’s interpretation of these provisions, the Office

of the Attorney General itself cited to PS-2000-1 in Attorney General Opinion No. GA-0348

and acknowledged that “the question as to whether, under other judicial canons, a municipal

judge holding the position of county commissioner would ‘undermine[ ] the public’s

confidence in an impartial and independent judiciary’ is a question we must leave to the State

Commission on Judicial Conduct.” 20 Thus, the Office of the Attorney General would also

seem to agree that the Commission’s interpretations of the relevant ethical provisions are

indeed owed Chevron deference. 21 Such being the case, unless the Commission’s interpretations

are patently unreasonable and in conflict with the plain language of the statute, they must be

deferred to. 22 Accordingly, this Court should defer to the Commission’s interpretations and

impose, at a minimum, the sanction of a Public Admonition and Order for Additional

Education against Judge Lilly for violations committed in CJC No. 19-1767.

II. CJC NO. 19-1878

A. FAILURE TO CONSIDER REQUIRED STATUTORY FACTORS FOR SETTING

BAIL

Judge Lilly has acknowledged that this violation occurred. 23

B. E X P ARTE COMMUNICATIONS

Judge Lilly maintains that his communications with defendant Adam Ben Carter

20
Op. Tex. Att’y Gen. No. GA-0348 (2005) (quoting and citing to PS-2000-1).
21
See supra note 15.
22
Thompson v. Tex. Dep’t of Licensing & Reg., 455 S.W.3d 569, 571 (Tex. 2014). See also Red Lion Broad. Co. v.
F.C.C., 395 U.S. 367, 380-86, 89 S. Ct. 1794, 1801-1804, 23 L. Ed. 2d 371 (1969) (providing that construction of
statute by a state agency should be followed unless there are compelling indications that it is wrong, especially when
Congress has refused to alter administrative construction); Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 107,
99 S. Ct. 1601, 1612, 60 L. Ed. 2d 66 (1979) (“ . . . the agency’s interpretation of the statute ordinarily commands
considerable deference.”).
23
Judge Paul Lilly’s Post-Hearing Brief, p. 23 (entitled p. 18) (“As to the charge that Judge Lilly did not properly
consider the statutory factors in setting bail, Judge Lilly concedes that he erred in that. He is willing to accept the
decision of the Court as to what sanction, if any, is proper and appropriate for this mistake.”)

10

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 (“Carter”) did not constitute impermissible ex parte communications because such did not

concern “the merits of a pending or impending judicial proceeding.” 24 In his Post-Hearing

Brief, Judge Lilly states the following:

“In this case, Judge Lilly had a communication with Adam Carter but it was
not a prohibited ex parte communication. Judge Lilly was instead responding
promptly to a 30 day old request from Carter to let him know he was not being
ignored. He contacted the jail to ask about Carter’s status, and during that call
spoke to Carter to let him know he was being appointed an attorney, his case
was being set for a hearing in the next few days and he would be brought over
to Brown County for that purpose. Lilly did not discuss the merits of the case
or any substance of a contested matter with Carter.” 25

Judge Lilly provides an almost complete summary of the relevant facts within this one

paragraph but conveniently leaves out a few key topics of discussion between Carter and Judge

Lilly, topics which have already been stipulated to in the Agreed Stipulations. 26 Specifically,

Judge Lilly leaves out the fact that he directly asked Carter if, as Carter had stated in his letter,

he “truly wanted to plead true and accept time served” if he were to be brought back to Brown

County for a motion to revoke hearing. Based on his own statement, Judge Lilly essentially

wanted to preview over the phone how Carter intended to plead at the hearing. 27 Simply put,

communications between a judge and a party do not get more meritorious than discussing

how that party intends to plead at a hearing. Such being the case, Judge Lilly’s communications

with Carter were undoubtedly ex parte and impermissible under the relevant ethical provisions.

Since Judge Lilly has acknowledged that he failed to consider required statutory factors

24
Id., at 23-24 (entitled pp. 18-19).
25
Id., at 24 (entitled p. 19).
26
See Agreed Stipulations, Stipulation No. 10 (“While the motion to revoke remained pending, Judge Lilly, in
response to a letter from Carter requesting to plead true to the motion to revoke for time served, called Carter directly
in the Runnels County Jail to confirm these were his intentions. Judge Lilly also spoke to a Runnels County jailer
about Carter’s conduct in jail.”).
27
Id.; see also The Commission’s Post-Submission Brief, notes 48-53.

11

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 for setting bail on Carter’s motion to revoke, and since Judge Lilly undeniably engaged in

impermissible ex parte communications with Carter, this Court should impose, at a minimum,

the sanction of a Public Admonition and Order for Additional Education against Judge Lilly

for violations committed in CJC No. 19-1878.

III. CONCLUSION AND PRAYER

The Commission respectfully request this Honorable Special Court of Review to (1)

affirm the Commission’s decision; (2) impose, at a minimum, the sanction of a Public

Admonition and Order for Additional Education against Judge Lilly for violations committed

in CJC No. 19-1767; and (3) impose, at a minimum, the sanction of a Public Admonition and

Order for Additional Education against Judge Lilly for violations committed in CJC No. 19-

1878.

Dated: January 10, 2022

Respectfully submitted,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

SHAWN E. COWLES
Deputy Attorney General for Civil Litigation

ELIZABETH BROWN FORE

Chief, Administrative Law Division

12

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 /s/ Glen Imes
Glen Imes
State Bar No. 24084316
Assistant Attorney General
Ted A. Ross
State Bar No. 24050363
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
ADMINISTRATIVE LAW DIVISION
P. O. Box 12548, Capitol Station (MC-018)
Austin, Texas 78711-2548
Telephone: (512) 936-1838
Facsimile: (512) 320-0167
Glen.Imes@oag.texas.gov
Ted.Ross@oag.texas.gov
ATTORNEY FOR THE STATE COMMISSION ON
JUDICIAL CONDUCT

13

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 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and forgoing document
has been served by electronic mail on the 10th day of January 2022, on the following:

Jon Mark Hogg

State Bar No 00784286
JACKSON WALKER LLP
136 W. Twohig Ave., Suite B
San Angelo, Texas 76903
Telephone: (325) 481-2560
Facsimile: (325) 481-2585
jmhogg@jw.com

ATTORNEY FOR JUDGE PAUL LILLY

/s/ Glen Imes

Assistant Attorney General

14

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 Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below:

Jessica Yvarra on behalf of Glen Imes

Bar No. 24084316
jessica.yvarra@oag.texas.gov
Envelope ID: 60682233
Status as of 1/10/2022 10:14 PM CST

Associated Case Party: State Commission on Judicial Conduct

Name BarNumber Email TimestampSubmitted Status

Jeff Lutz jeff.lutz@oag.texas.gov 1/10/2022 5:12:38 PM SENT

Ted Ross ted.ross@oag.texas.gov 1/10/2022 5:12:38 PM SENT

Jessica Yvarra jessica.yvarra@oag.texas.gov 1/10/2022 5:12:38 PM SENT

Jacqueline Habersham jacqueline.habersham@scjc.texas.gov 1/10/2022 5:12:38 PM SENT

Glen imes glen.imes@oag.texas.gov 1/10/2022 5:12:38 PM SENT

Michael GGraham Michael.Graham@scjc.texas.gov 1/10/2022 5:12:38 PM SENT

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Katherine Cheng Katherine.Cheng@scjc.texas.gov 1/10/2022 5:12:38 PM SENT

Associated Case Party: Hon. Paul Lilly

Name BarNumber Email TimestampSubmitted Status

Carey Edwards cledwards@jw.com 1/10/2022 5:12:38 PM SENT

Jon MarkHogg jmhogg@jw.com 1/10/2022 5:12:38 PM SENT

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