ADMINISTRATIVE LAW JUDGES SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE ADMINISTRATIVE JUDICIARY

An independent and honorable administrative judiciary is indispensable to fair and impartial administrative proceedings. An administrative law judge should maintain and enforce high standards of conduct. Adherence to such standards ensures both the decisional independence of the administrative law judge and public confidence in the administrative process. 

ADMINISTRATIVE LAW JUDGES SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

A. An administrative law judge shall respect and comply with the law and at all times should act in a manner that promotes public confidence in the integrity and impartiality of the administrative judiciary.

B. An administrative law judge shall not: allow any relationship to influence the ALJ’s judicial conduct or judgment; lend the prestige of the office to advance the private interests of the ALJ or others; or convey or permit others to convey the impression that they are in a special position to influence the judge. 

C. An administrative law judge shall not knowingly hold membership in any organization that practices discrimination prohibited by law or that would reasonably cast doubt on the judge’s capacity to act impartially with regard to parties or matters likely to come before the agency.

ADMINISTRATIVE LAW JUDGES SHALL PERFORM THE DUTIES OF THE OFFICE IMPARTIALLY AND DILIGENTLY

The judicial duties of an administrative law judge take precedence over all other activities. Judicial duties include all the duties of the office prescribed by law. In the performance of these duties, the following standards apply:

A. Adjudicative responsibilities:

(1) An administrative law judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interest, public clamor, or fear of criticism.

(2) An administrative law judge shall maintain order and decorum in proceedings.

(3) An administrative law judge shall be patient, dignified, and courteous to litigants, witnesses, party representatives, and others with whom the judge deals in an official capacity, including all SOAH employees. An ALJ shall require similar conduct of hearing participants, party representatives, staff members, and others subject to the judge’s direction and control. 

(4) An administrative law judge shall perform judicial duties without bias or prejudice. The ALJ shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice including, but not limited to, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status; and shall not permit staff, participants in a proceeding before the office, and others subject to the judge’s direction and control to do so. This section does not preclude legitimate advocacy by participants in a proceeding when race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, or other similar factors, are issues in the proceeding.

Commentary: An ALJ must refrain from speech, gestures, or other conduct that could reasonably be perceived as bias or prejudice, including sexual harassment, and must require the same standard of conduct of others subject to the judge’s direction and control. Facial expressions and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, the media, and others an appearance of bias. An ALJ must be alert to avoid behavior that may be reasonably perceived as prejudice.

(5) An administrative law judge shall accord to all persons who are legally interested in a proceeding, or their representatives, the right to be heard according to law. Except as permitted by SOAH’s Rules of Procedure or as required for the disposition of an ex parte matter authorized by law, an ALJ shall not directly or indirectly communicate in connection with an issue of fact or law with a state agency, person, party, or representative of those entities, except on notice and opportunity for each party to participate. 

Decisions of an administrative law judge shall be based exclusively on evidence in the record of the proceeding and material that has been officially noticed. An ALJ shall require compliance with this subsection by personnel subject to the ALJ’s direction and control.

This subsection does not prohibit:

(a) communication where the parties to the proceeding have notice of the communication and an opportunity to participate;

(b) communications concerning uncontested administrative or uncontested procedural matters;

(c) conferring separately with the parties during the course of a mediation or mediation evaluation, subject to the requirement that the mediating ALJ be recused from any participation in contested case proceedings in the same matter;

(d) consultation between the presiding administrative law judge and other SOAH ALJs, SOAH legal counsel, or hearings personnel;

(e) consultation between the presiding administrative law judge and another disinterested expert on the law applicable to a proceeding before the ALJ, if the ALJ gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond;

(f) considering an ex parte communication expressly authorized by law.

(7) An administrative law judge shall dispose of all judicial matters promptly, efficiently, and fairly.

(8) An administrative law judge shall abstain from public comment about a known pending or impending proceeding before any judge in the administrative process in a manner which: (a) suggests the ALJ’s probable decision on any particular issue; or (b) might reasonably be expected to affect its outcome or impair its fairness. An ALJ shall require similar abstention on the part of SOAH personnel subject to the judge’s direction and control. This subsection does not prohibit ALJs from making public statements in the course of their official duties or from explaining for public information the hearing procedures of agencies.

(9) An administrative judge shall not disclose or use, for any purpose unrelated to judicial duties, confidential information acquired in a judicial capacity.

B. Administrative responsibilities:

(1) An administrative law judge shall diligently discharge assigned administrative responsibilities, and maintain professional competence in judicial administration, and cooperate with other ALJs and SOAH employees in the administration of agency business.

(2) An administrative law judge shall require staff and other persons subject to the ALJ’s direction and control to observe the standards of fidelity and diligence that apply to the judge.

(3) An administrative law judge with supervisory authority for the judicial performance of other ALJs should take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities. 

(4) An administrative law judge who receives information clearly establishing that another ALJ has committed a violation of this Code or other rules of professional conduct should report the violation to the Chief Administrative Law Judge.

(5) An administrative law judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Rules of Disciplinary Conduct should, after notice and consultation with the Chief Administrative Law Judge or his/her designee, proceed pursuant to State Bar Rule 8.03 (Reporting Professional Misconduct) or take other appropriate action. Likewise, an ALJ who receives information clearly establishing that a non-lawyer party representative has committed the unauthorized practice of law shall report that individual to the Texas Supreme Court’s Unauthorized Practice of Law Committee.

C. Recusal and disqualification:

Administrative Law Judges shall be assigned cases in rotation, under the procedure established by the Chief Administrative Law Judge, based on availability. No available judge shall decline a routine assignment to a case, except by engaging in the recusal and disqualification analysis set out in SOAH’s Ethics Policy for State Employees and this Code, in consultation with their supervising judge. Each ALJ shall maintain a list of matters and parties for which they are disqualified or recused. All case re-assignments or orders on disqualification and recusal shall be separately reported to the Chief Administrative Law Judge for record-keeping purposes.

(1) Disqualification. An administrative law judge shall disqualify himself or herself in all proceedings in which:

(a) the judge has served as a lawyer in the matter in controversy; 

(b) the judge knows that, individually or as a fiduciary, he or she has an interest in the subject matter in controversy; or

(c) either of the parties may be related to the judge by affinity or consanguinity within the third degree.

Commentary: SOAH administrative law judges are subject to Texas Disciplinary Rule of Professional Conduct 1.10, which governs the scope of recusal for government employees. It may be appropriate for a newly hired administrative law judge to adopt a temporary recusal policy for matters handled by members of a private law firm with which the administrative law judge previously practiced, in order to avoid any appearance of impropriety.

(2) Recusal. An administrative law judge shall recuse himself or herself in any proceeding in which:

(a) the ALJ’s impartiality might reasonably be questioned;

(b) the ALJ has a personal bias or prejudice concerning the matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(c) the ALJ has been a material witness concerning it, or has a relationship with a material witness that would create an appearance of impropriety;

(d) the ALJ participated as counsel, adviser or material witness in the matter in controversy, or expressed an opinion concerning the merits of it, while acting as an attorney in government service;

(e) the ALJ knows that he or she, individually or as a fiduciary, or a family member residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(f) the ALJ or his or her spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or

(iii) is to the ALJ’s knowledge likely to be a material witness in the proceeding;

(g) the ALJ or his or her spouse, or a person within the first degree of relationship to either of them, or the spouse of such person, is acting as a lawyer in the proceeding.

(3) An ALJ should inform himself or herself about the ALJ’s personal and fiduciary financial interests, and make a reasonable effort to inform himself or herself about the personal financial interests of family members residing in the ALJ’s household.

(4) The parties to a proceeding may waive any ground for recusal, other than personal bias or prejudice concerning a party, after it is fully disclosed on the record. A party may act through counsel if counsel represents on the record that the party has been consulted and consents.

(5) If an ALJ does not discover that he or she should be recused under subparagraphs (2)(e) or (2)(f)(iii) until after he or she has devoted substantial time to the matter, he or she is not required to recuse himself or herself if he or she or the person related to him or her divests himself or herself of the interest that would otherwise require recusal.

ADMINISTRATIVE LAW JUDGES SHALL REGULATE EXTRA-
JUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL DUTIES

A. Extra-judicial activities in general:

An administrative law judge shall conduct all of the judge’s extra-judicial activities so that they do not:

(1) Cast reasonable doubt on the judge’s capacity to act impartially as an ALJ; 

(2) Demean the administrative-judicial office or the agency; or 

(3) Interfere with the proper performance of judicial duties.

B. Avocational activities:

An administrative law judge may speak, write, lecture, teach, and participate in extra-judicial activities concerning the law, the legal system, the administration of justice, and non-legal subjects, subject to the requirements of this Code.

C. Civic and charitable activities:

An administrative law judge may participate in civic and charitable activities that do not reflect adversely upon impartiality or interfere with the performance of judicial duties. An ALJ may serve as an officer, director, trustee, or advisor of an educational, religious, charitable, fraternal, or civic organization subject to the following limitations:

(1) An ALJ shall not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before SOAH. 

Commentary: Administrative Law Judges are expected regularly to review the activities or organizations in which they are involved, and to cease involvement or activities that would violate this Code as soon as practicable.

(2) An administrative law judge serving as an officer, director, trustee, advisor, member, or otherwise:

(a) May assist such an organization in planning fund-raising and may participate in the management and investments of the organization’s funds, but shall not personally participate in the solicitation of funds or other fund-raising activities, except that an ALJ may:

(i) Solicit funds or membership from individuals over whom the ALJ does not exercise supervisory authority;

(ii) Solicit other persons for funds or membership in the organizations described above if neither those persons nor persons with whom they are affiliated are likely ever to appear before SOAH; and,

(iii) Send a general membership or fund raising solicitation mailing, over the ALJ’s signature, so long as the ALJ’s title and the SOAH seal do not appear on the solicitation.

(b) May make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system, or the administration of justice;

(c) Shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Canon 4C(2)(a), if the membership solicitation is fundamentally a fund-raising mechanism; and

(d) Shall not use or permit the use of the prestige of a SOAH administrative law judge for fund-raising or membership solicitation.

Commentary: Solicitation of funds for an organization and solicitation of memberships similarly involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control. The SOAH letterhead, the administrative law judge’s title, and the SOAH seal may not be used in such solicitations. Use of an organization letterhead for fund-raising or membership solicitation does not violate this canon, provided the letterhead lists only the judge’s name and office or other position in the organization, not any official title.

(3) An administrative law judge should not give investment advice to an organization, but may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.

F. Financial activities:

As employees of the State of Texas in the Executive Department, administrative law judges are subject to the ethical conduct standards set out by Chapter 572 of the Government Code and enacted in SOAH’s Ethics Policy for State Employees. 

With regards to administrative law judges, this Code of Conduct extends the Ethics Policy’s prohibition on improper gifts—which prohibits accepting or soliciting any gift, favor, or service that might reasonably tend to influence the ALJ in the discharge of official duties, or that the ALJ knows or should know is being offered with intent to influence the ALJ’s official conduct—to all members of the ALJ’s household.

The following additional ethical requirements also apply to administrative law judges and their households:

(1) An administrative law judge shall refrain from financial and business dealings that tend to reflect adversely on impartiality, interfere with the proper performance of judicial duties, exploit the judge’s official position or involve the judge in frequent transactions with lawyers or others likely to come before SOAH.

(2) An administrative law judge shall manage his or her investments and other financial interests to minimize the number of cases in which the judge is disqualified or recused pursuant to applicable regulations and laws. As soon as ALJs can do so without serious financial detriment, they shall divest themselves of investments and other financial interests that might require frequent disqualification.

(3) An administrative law judge shall disqualify himself or herself from any proceeding in which the ALJ has a financial interest in the subject of the proceeding or in any party to the proceeding.

E. Service as arbitrator or mediator.

Subject to SOAH’s policy on outside employment, an administrative law judge may act as an arbitrator or mediator provided there is no conflict with the judge’s official duties and the activity is approved by the Chief Administrative Law Judge. An ALJ shall not accept outside employment as an arbitrator or mediator in any matter, or regarding any party, that is reasonably likely to come before SOAH.

Commentary: Service as an arbitrator or mediator as part of an administrative law judge’s official duties is not covered by this provision.

F. Practice of Law.

An ALJ may engage in the practice of law only subject to SOAH’s policy on outside employment. External employment or volunteer/pro bono activities that involve the practice of law are permitted only if the activity would affect neither the independent professional judgment of the ALJ nor the conduct of the judge’s official duties, as determined by the Chief Administrative Law Judge on a case-by-case basis. Notwithstanding this subsection, an ALJ may appear pro se and may, without compensation, give legal advice to and draft or review documents for a member of the ALJ’s family on matters that are not likely to come before SOAH.

Commentary: The Chief Administrative Law Judge is statutorily prohibited from any practice of law, and this subsection cannot modify that statutory bar.

G. Compensation and reimbursement.

An administrative law judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety.

(1) Compensation shall not exceed a reasonable amount nor should it exceed what a person who is not a judge would receive for the same activity.

(2) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the ALJ’s spouse or guest. Any payment in excess of such an amount is compensation.

ADMINISTRATIVE LAW JUDGES SHALL REFRAIN FROM POLITICAL ACTIVITY INAPPROPRIATE TO THE JUDICIAL OFFICE 

A. An administrative law judge shall not act as a leader or hold office in a political organization or party, the principal purpose of which is to further the election or appointment of candidates to political office.

B. A state administrative law judge shall not solicit funds for or be compelled to pay an assessment to a political organization or candidate or purchase tickets for political dinners or other similar functions.

C. A state administrative law judge must avoid any actual or apparent conflicts of interest as a result of running for or holding public office while employed at SOAH.

(1) An ALJ shall notify the Chief Administrative Law Judge before becoming a candidate for elected public office or engaging in conduct that would give the appearance that the judge intends to become a candidate for elected public office.

(2) The Chief Administrative Law Judge will evaluate the proposed candidacy to determine if it will create an actual or apparent conflict of interest or otherwise affect the judge’s work performance or the work of the agency.

(3) If the Chief Administrative Law Judge determines that the candidacy can be accommodated without creating undue conflicts or detriment to the agency, the judge must coordinate any required recusals with his/her supervising ALJ to ensure orderly and appropriate transfer of case assignments.

4. A state administrative law judge should not engage in any other partisan political activity except with the intent to improve the law, the legal system or the administration of justice.

Commentary: Administrative law judges retain the right to participate in the political process as voters and may engage in other political activity not addressed by this Code to the extent such activity does not cast reasonable doubt on the judge’s ability to act impartially as a judge. 

EFFECTIVE DATE OF COMPLIANCE

A person to whom this Code becomes applicable should arrange his or her affairs as soon as reasonably possible to comply with it.

The following terms and phrases have the following meanings, unless the context indicates otherwise:

A. Adjudicative Proceeding - A contested case proceeding in which the rights, duties, or privileges of a party are to be determined by an agency after an opportunity for adjudicative hearing.

B. Alternative Dispute Resolution Proceedings - refers to processes used at SOAH to resolve disputes outside of or in connection with formal contested case hearing processes, including, but not limited to, mediation, mediated settlement conferences, mini-trials, early neutral evaluation, and arbitration. 

C. Administrative Law Judge, Judge, or ALJ - A SOAH employee or other qualified individual assigned to preside over adjudicative or alternative dispute resolution proceedings, and to render a decision or proposal for decision on, or otherwise facilitate resolution of, the dispute. 

D. De minimis - An insignificant interest that could not raise reasonable question as to a judge’s impartiality.

E. Direction and Control – As used in this Code, persons subject to the judge’s “direction and control” refers generally to SOAH employees, interns, contractors, or volunteers over whom the judge has the discretion to give instruction in the performance activities on behalf of, or in direct support of, an administrative law judge’s official duties. A person may be subject to the judge’s “direction and control” without regard to whether the judge is assigned as the person’s manager for organizational purposes. See also, Rules 5.01 and 5.03 of the Texas Disciplinary Rules of Professional Conduct.

F. Ex Parte Communication - “Ex Parte” communication is commonly understood to mean “From or on one side only, with the other side absent or unrepresented.” In form, an ex parte communication is between one party and the judge, without the other side being given the opportunity to respond. In substance, the communication must address the substance of a matter before the judge for adjudication. As noted in this Code, certain communications are excepted from the definition of ex parte communications.

G. Family Member - A spouse, child, grandchild, parent, grandparent or other relative person with whom the judge maintains a close familial relationship.

H. Financial Interest - Ownership of more than a de minimis legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:

(i) ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund or the proceeding could substantially affect the value of the interest;

(ii) an office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;

(iii) the proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

(iv) ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities; and

(v) an interest as a taxpayer or utility ratepayer, or any similar interest, is not a “financial interest” unless the outcome of the proceeding could substantially affect the liability of the judge or his or her family member more than other judges.

I. Knowingly - Actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.

J. Party Representative - A lawyer or non-lawyer who acts on behalf of himself or herself or another person during an adjudicative or alternative dispute resolution proceeding.

K. Require - The rules prescribing that a judge “require” certain conduct of others are, like all of the rules in this Code, rules of reason. The use of the term “require” in that context means a judge is to exercise reasonable direction and control over the conduct of those persons subject to the judge’s direction and control.

L. Shall or Must - Refers to conduct that is required.

M. Should or May - Refers to conduct that is ethically appropriate. 

N. Third Degree of Relationship - The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece.