Austin attorney says campaign contributions skewed judge's impartiality, wants Floyd's recusal

David Yates Mar. 9, 2009, 12:16pm


The campaign contributions Judge Donald Floyd collected from a local law firm has influenced his rulings and made it impossible for plaintiffs in a toxic fume case to receive a fair trial, says one Austin attorney.

During a March 9 recusal hearing held in the 172nd District Court, attorney Ronnie Jones told visiting Second Administrative District Judge Olen Underwood the thousands of dollars the Orgain, Bell & Tucker law firm gave Floyd in 2001 has affected the judge's impartiality – grounds for his recusal under Texas and U.S. law.

"We don't think we can get a fair trial from Judge Floyd," Jones said. "It's undisputable he has taken money from the (defendants') law firm … we believe the payment is a violation of due process."

Even though Jones argued 20 percent of Floyd's 2001 campaign contributions came from the defendants' firm, Underwood denied the recusal motion, ruling that Floyd's impartiality had not been compromised.

In September 2008, Jones, representing more than 320 Port Arthur residents, filed a class action suit against TPC Holdings, alleging that the company and its partners were responsible for a Oct. 17, 2007, pipeline explosion.

According to the suit, the blast, which occurred at U.S. 69 and 60th Steet in Port Arthur, spewed "hazardous and toxic substances" into the atmosphere, exposing the nearby plaintiffs to harmful chemicals.

On Oct. 28, 2008, attorney Jack Caroll of the Orgain, Bell & Tucker law firm filed an answer on behalf of TCP Holdings and Texas Petrochemicals, asserting there was no negligence on his clients' part that caused the explosion.

A month later, after Floyd had recently made a discovery ruling in the defendants' favor, Jones researched and learned of the campaign contributions Orgain, Bell & Tucker donated to the judge during his 2001 election bid.

In his motion to recuse, Jones wrote that according to the Texas Ethics Commission, Floyd received at least one $1,000 donation from the firm in 2001.

"Plaintiffs will be deprived of a fair trial in violation of the due process clause … (under) Texas Rule of Civil Procedure 18b because the judge's impartiality might be reasonably questioned," the motion states.

On Feb. 23, Floyd denied the motion, forcing Jones to seek a ruling from an out-of-county judge.

In his response to the motion, Caroll wrote it was "unfortunate" that "this court must waste time having plaintiffs' motion to recuse assigned to another judge for ruling."

During the hearing, Caroll said Texas courts have repeatedly rejected notions of campaign contributions influencing a judge's impartiality.

"It's not uncommon … or inappropriate for law firms to support judicial candidates," Caroll said, adding that most Texas lawyers have given money to judges and that "the visiting judge (system) is going to explode" if every judge has to recuse himself.

Both Caroll and Jones brought up a case currently before the U.S. Supreme Court, which centers on Massey Energy CEO Don Blankenship and the $3 million he spent to help elect West Virginia Chief Justice Brent Benjamin in 2004.

In that case, Hugh Caperton, a coal operator who won a $50 million verdict against Massey, appealed to the Supreme Court after the verdict was overturned twice by West Virginia justices.

Caperton argues Benjamin became indebted to Massey after receiving such massive contributions and wrongly refused to recuse himself when hearing his case.

Caroll said the West Virginia case was of an "egregious nature" and did not apply to the issue at hand.

Jones, however, said the case shows a growing "national concern" to whether judges should preside over any case where donated money turns out to be the focal point – adding that some of Floyd's decisions have drawn his concern.

"If (Floyd's) impartiality can be questioned, then the rules require him to recuse himself," Jones said. "We don't understand why Mr. Caroll is fighting so hard to keep him on the case."

In his rebuttal, Caroll called Jones' motion "frivolous" – a side bar remark that earned him a trip to judge's bench after the hearing.

Case No. E182-468

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