Just the facts:
On the 29th of August I got in the mail the State’s Motion to Disclose Experts in a case set for trial next Tuesday.
The same day the District Clerk’s office notified me that the judge had granted the State’s motion.
Here’s a portion of Texas Disciplinary Rule of Professional Conduct 3.05:
A lawyer shall not…except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter.
Here’s Texas Code of Judicial Conduct Canon 3(B)(8):
A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding.
Here’s the email I sent the judge (and her lawyer, the judges’ staff attorney—in hindsight was probably a little much) on the 29th:
Dear Judge ,
Please stop granting the State’s motions (for example, to disclose experts) without notice to the defense and an opportunity to respond.
Here’s the message my receptionist took on the 30th:
[Court Coordinator] re [client] Mtns Hrg Monday 9am. Your client DOES have to appear in court also.
My client was not due in court until the following week. Monday would have been Labor Day.
On the 31st I saw on the District Clerk’s website that the case was set on the day after Labor Day.
My client and I were there at 9am on that day. I asked to approach; the judge had other business to take care of first:
Me: I don’t think we have any business. There are no motions pending.
Judge: We have some business.
When the judge got to us, I asked that a record be made. Here is the judge’s defense:
By way of history on the case, the State filed a State’s Motion to Disclose Experts on August 29th, 2012. It was presented to the Court. At that time the Court held it for 24 hours to discuss with [Prosecutor] whether or not there were any objections from the defense. [Prosecutor] went out of town, so the Court asked another prosecutor in the court whether or not the defense had been made aware of the motion, and implicit in that request was whether or not there were any objections.
It was represented to the Court that the defense had been notified. The Court interpreted that to mean that there were no objections, just as if the State filed a motion to amend and the defense wasn’t present. The Court would have requested whether or not there were any objections from the defense. So, after that communication with the State and it being the Court’s belief that not only had the defense been given notice but there were no objections to a Motion to Disclose Experts under 39.14(b), the Court signed the motion on August 29th, 2012.
What do you think?