Monday, March 30, 2009

The presiding judge of the Texas Court of Criminal Appeals, while seeking state aid to defend herself against ethics charges, failed to abide by legal requirements that she disclose nearly $2 million in real estate holdings, according to an analysis of public records by The Dallas Morning News. Read the article at the Dallas Morning News

Judge Keller's disclosures omit nearly $2 million in real estate, public records show

Monday, March 30, 2009
By STEVE McGONIGLE / The Dallas Morning News

The presiding judge of the Texas Court of Criminal Appeals, while seeking state aid to defend herself against ethics charges, failed to abide by legal requirements that she disclose nearly $2 million in real estate holdings, according to an analysis of public records by The Dallas Morning News.

Sharon Keller has sought dismissal of the charges on grounds that it would be "financially ruinous" for her to pay private counsel to fight allegations brought by the state Commission on Judicial Conduct that she violated her duties in a death penalty appeal.

Keller, the state's highest criminal court judge, faces possible removal from office if a special master agrees that she blocked a condemned inmate's last-minute effort to stop his execution in 2007 by refusing to extend the court's 5 p.m. closing time to allow his lawyers to file their plea. The inmate, Michael Richard, was executed within hours.

Keller has denied any wrongdoing in the Richard case. She did not respond to several requests for comment on the property disclosures, made in two calls to her Austin office, as well as via her lawyer.

She has also argued that the charges violate her constitutional right to counsel because the state refuses to allow her current attorney, Chip Babcock, to represent her at taxpayer expense. Babcock has said he would represent Keller for almost nothing, but that he believes state ethics rules prohibit him from doing that. He said he asked the state Ethics Commission for a clarification in Keller's case, but the commission declined to give one.

Babcock, a partner in one of the largest law firms in Texas, said that the proceeding could cost Keller several hundred thousand dollars and that it could consume most if not all of her income and assets.

He said he based his prediction on the resources Keller listed on her latest personal financial report to the state and had not asked to see any other financial statements from his client, a member of a well-known Dallas family.

Sworn statement

The sworn statement Keller was required to file with the Texas Ethics Commission last April reflected income of more than $275,000, including her annual state salary of $152,500. It also showed that she owned at least 100 shares of airline stock, a home in Austin and one commercial property in Dallas. County tax records valued the properties at about $1 million.

Keller's statement did not list her ownership interest in seven other residential and commercial properties in Dallas and Tarrant counties. Those properties are valued collectively by county appraisal districts at about $1.9 million.

Among Keller's unlisted properties are two homes valued together at just over $1 million in the family's compound across from the Dallas Arboretum. Keller is listed as sole owner under Sharon Batjer, her married name. She was divorced in 1982.

The other omissions include two Keller-owned properties valued at about $823,000: a vacant commercial site in Euless and an occupied commercial property next to Keller's Drive-In on East Northwest Highway, a landmark hamburger restaurant operated since 1965 by the judge's father, Jack. Also not disclosed are three properties valued at $114,000 and owned by Keller's 27-year-old son, a law student whom she claims as a dependent.

The Texas Government Code requires state officeholders to disclose "all beneficial interests in real property" held by the official, a spouse or any dependents. Failure to comply could subject the officeholder to civil and criminal penalties.

The Texas Ethics Commission does not routinely check the accuracy or completeness of financial disclosure reports, only that they have been filed, said Tim Sorrells, the commission's deputy general counsel.

The judge's assets

Keller's lawyer, Babcock, said he was not aware of the extent of her holdings until told about them by The News.

Babcock then acknowledged that Keller might be able to sell enough property to pay her legal bills. But he said the amount of Keller's assets should not alter their legal position that she should be allowed to benefit from reduced attorney's fees or be provided his legal services at state expense.

"The argument ought to be the same whether you came to the bench after having amassed substantial assets or you inherited it, or you don't have any assets," he said.

Keller's assets, including those she is not required to disclose to the state, could reveal that she is even wealthier.

Her 2008 statement to the ethics commission did not list about $3 million in real estate held by three family corporations or trusts, in which she has an interest. State law requires that officeholders list any corporations in which they are an officer or director. Keller did not do so for the three family-run entities, although she did acknowledge earning income of at least $25,000 from a trust in her father's name.

State law does not require asset disclosure if the officeholder does not have at least a 50 percent interest. Records do not show Keller's percentage holdings, and neither she nor her lawyer would comment on any details of The News' findings. Keller also did not list two properties worth about $796,000, owned by a family corporation in which her dependent son is an officer, as she is required by law to do.

Officeholders are also required to list outstanding debt over $1,000; Keller listed none on her latest report to the ethics commission.

Last year, Keller bought a residential property in Hunt County, valued on tax rolls at $251,000. She will not have to report that property until this year's filing.

'Extremely outrageous'

Andrew Wheat, research director of Texans for Public Justice, the Austin-based watchdog group that monitors officeholder finances, decried Keller's omissions as an "extremely outrageous" betrayal of the public trust.

"It leaves one speechless to see so much left out of her personal financial statements on the one hand and then on the other hand to see her making her claims that hiring a private attorney would be financially ruinous," he said.

While it is possible that some of the properties might be exempt from disclosure, Wheat said, the majority of omissions appear to fall within the law's requirements.

"Is this an insane amount of carelessness year after year, in which case should this person be our highest criminal judge?" he said. "Is it willful hiding of assets, in which case that person probably isn't fit to be our top criminal judge? I don't know."

The News compiled a list of properties owned solely by Keller, her son, Temple, or in partnership with her parents or siblings and compared them with the sworn financial statements she filed with the state ethics commission between 2005 and 2008.

Keller omitted the same seven properties in each of her sworn reports, the review showed.

Judges, like all other state officeholders, are required to disclose their personal finances to allow the public to know their backgrounds and spot conflicts of interest that may require them to be disqualified from participating in a particular case.

In 1999, Keller transferred her ownership of one commercial property near Keller's Drive-In to another family-run corporation after The Dallas Observer reported the judge was the landlord for a strip club that occupied her property. The property is now occupied by a pawn shop.

One of the commercial properties Keller did not disclose involves a lease to a gas drilling company. The second property is leased to a rental car company. The family businesses in which she has an interest involve a bank in Arlington, a barbecue restaurant in Arlington and a medical clinic in Garland.

Chuck Herring, an Austin lawyer who specializes in legal ethics, said the ethics commission takes seriously the failure to comply with disclosure requirements.

"Sure, that's a problem," he said. "And it potentially can reflect upon the judge's performance of his or her duties and simply the openness of government that we require."