Full opinion text
OPINION BARAJAS, Chief Justice, delivered the opinion of the Review Tribunal, in which BOYD, Presiding Justice, BROOKSHIRE, FARRIS, SMITH, LEE and HOLCOMB, Justices, join. This action results from the recommendation by the State Commission on Judicial Conduct that Respondent, John N. Thoma, be removed as Judge of the County Court at Law No. One of Galveston County, Texas, and further, that he be prohibited from holding judicial office in the future. Respondent has rejected the findings, conclusions, and recommendations of the Commission, and in 28 points of error, challenges the findings and ultimate recommendation that he be removed from office. We affirm the Commission’s recommendation. I. SUMMARY OF THE EVIDENCE The comprehensive record in the instant case reflects that the State Commission on Judicial Conduct adopted the findings of fact which were entered by a Special Master. The Special Master found that Respondent engaged in willful or persistent conduct that is clearly inconsistent with the proper performance of his duties, in violation of Tex. Const, art. V, § l-a(6)A (1993), and further, that Respondent willfully violated various provisions of the Texas Code of Judicial Conduct. See Texas SupReme Court, Code of Judicial Conduct, Amended to April 1,1988, reprinted at Tex.Gov’t Code Ann., title 2, Subt. G, Appendix B (Vernon 1988). Specifically, the Special Master found that Respondent entered into a conspiracy to extort money from a party in an action over which he exercised judicial authority. The Special Master further found that Respondent engaged in ex parte communications with criminal defendants relating to their then-pending criminal proceedings to waive fees, fines, court costs, and attorney’s fees, and conducted ex parte proceedings in making a misleading docket entry, in granting a criminal defendant’s application for restricted driver’s license, in granting a criminal defendant a new trial, in reducing criminal defendants’ sentences and terminating their probation, in waiving requirements of class attendance for D.W.I. defendants, in granting criminal defendants credit for “jail time served” in excess of time actually served, and in waiving and/or reducing fees, fines, and court costs and attorney’s fees for criminal defendants. The above findings and the supporting evidence will be detailed in the discussion of each of Respondent’s points of error. II. PROCEDURAL HISTORY As this is the first formal removal proceeding instituted under Tex. Const, art. V, § 1-a, discussion of the procedural aspects of the process is essential to a full and complete understanding of the action below. Generally, a complaint is received in writing alleging misconduct on the part of a Texas jurist. Alternatively, a complaint may be initiated on the Commission’s own motion. Rules for the Removal or Retirement of Judges, 56 Tex.B.J. 823 (1993), Rule 3. An evaluation and/or preliminary investigation is conducted to determine whether the complaint is within the jurisdiction of the Commission and is of potential merit. Id., Rule 3. If found to be within the Commission’s jurisdiction and to be of merit, a full investigation is commenced with notice being given to the judge. Id., Rule 4. A response from the judge is requested. Id., Rule 4(c). Subsequent to a full investigation, a decision is made to place the matter on the Commission’s regular agenda. Materials are prepared for the Commission and the matter presented for its consideration at an informal hearing at which time the judge may be afforded an opportunity to make an appearance. Id., Rule 6(a). The Commission, after considering all materials presented, including comments from the judge under review if such comments have been requested and received, renders its decision to dismiss the complaint, issue an appropriate informal sanction, or institute formal proceedings. If informal sanctions are imposed, the judge and the complainant are notified. The judge may request review of the informal sanction by a special court of review. Rules for the Removal or Retirement of Judges, Rule 9(a). In the alternative, the Commission may institute formal proceedings in which case notice of formal proceedings are served on the judge in question. Id., Rule 10(a). A verified answer is due by the judge to the Commission within 15 days from the date of service. Id., Rule 10(b). The Commission sets a time and place for its formal hearing, giving notice to the judge and the Texas Supreme Court at least 20 days prior to the scheduled date of the formal hearing. Id., Rule 10(e)(1). The Commission may direct that the formal hearing be before it or before a special master. Id., Rule 10(c)(1). If the Commission directs that the hearing shall be before a special master, it shall make a written request to the Supreme Court to appoint such a special master. Id., Rule 10(c)(2). The Supreme Court is to appoint a special master within 10 days from such a request. Id., Rule 10(c)(2). If a formal hearing is conducted before a special master, the master is to furnish the Commission and the judge its findings and recommendation. Id., Rule 10(h)(1). Objections, if any, to the report of the special master are due within 15 days with additional hearings, if any, to be held on 10 days’ notice. Rules FOR the Removal OR Retirement of Judges, Rule 10(i) and (j). Subsequent to the conclusion of all hearings, the Commission renders its decision to dismiss the complaint, publicly censure the judge, or recommend the removal or the retirement of the judge. Id., Rule 10(m). Upon making a determination to recommend the removal or retirement of a judge, the Commission is to request the Chief Justice of The Texas Supreme Court to appoint a review tribunal, composed of seven justices, selected by lot from the courts of appeals of our state. Id., Rules 1(h); 11; 12(a). Within 90 days from the date the record is filed with the review tribunal, it shall order public censure, retirement, or removal, as it finds just and proper, or wholly reject the recommendation. Id., Rule 12(h). A judge may appeal a decision of the review tribunal to the Texas Supreme Court under the substantial evidence rule. Id., Rule 13. The record in the instant case establishes that on October 6, 1992, Respondent was notified in writing that an investigation was being commenced regarding his alleged acts of judicial misconduct. On November 6, 1992, an informal hearing was conducted at which time Respondent testified in his own behalf. On December 16, 1992, Notice of Formal Proceedings was served on the judge. On January 12,1993, upon request of the Commission, the Texas Supreme Court appointed the Honorable Oliver S. Kitzman, Senior District Judge, as Special Master to hear evidence on the charges and report thereon to the Commission. Following discovery and additional investigation, the judge was served with the Commission’s First Amended Notice of Formal Proceedings which alleged wrongdoing in 14 additional cases then pending before the judge. On June 1 — 4, 1993, a formal hearing on the merits was conducted before the Special Master at the Galveston County Courthouse, Galveston, Texas. On January 13, 1976, the Special Master filed his findings with the Commission in which he concluded that a preponderance of the evidence showed Respondent to have engaged in judicial misconduct, as alleged in the Commission’s First Amended Notice of Formal Proceedings. On December 17, 1993, the Commission agreed with and affirmed the Special Master’s findings of fact. Thereafter, on December 17, 1993, the State Commission on Judicial Conduct filed its findings and conclusions with this Review Tribunal seeking review of its recommendation that Respondent be removed from office, and further, that he be prohibited from holding judicial office in the future. III. DISCUSSION A. Burden of Proof Before Special Master In In re Brown, the Supreme Court of Texas held that judicial disciplinary proceedings are not criminal proceedings, since the function of the Judicial Qualifications Commission, the predecessor of the current State Commission on Judicial Conduct, is not to punish but to maintain the high quality of the judiciary. In re Brown, 512 S.W.2d 317, 319 (Tex.1974), citing In re Laughlin, 153 Tex. 183, 265 S.W.2d 805 (1954); McDaniel v. State, 9 S.W.2d 478 (Tex.Civ.App.—Texarkana 1928, writ refd). While the Texas Code of Judicial Conduct and the Rules for the Removal or Retirement of Judges have both undergone numerous changes since Brown, we nonetheless adhere to the above holding and reaffirm the principle that judicial conduct proceedings are not criminal in nature, not simply because their purpose is not necessarily to punish, but also to maintain the honor and dignity of the judiciary and to uphold the administration of justice for the benefit of the citizens of Texas. See generally In re Brown, 512 S.W.2d at 319; In re Coruzzi 95 N.J. 557, 472 A.2d 546 (N.J.1984), appeal dismissed, 469 U.S. 802, 105 S.Ct. 56, 83 L.Ed.2d 8 (1984); In re Diener, 268 Md. 659, 304 A.2d 587 (Md.1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974); Sharpe v. State, 448 P.2d 301 (Okla.Jud.Ct.1968), cert. denied, 394 U.S. 904, 89 S.Ct. 1011, 22 L.Ed.2d 216 (1969). In that regard, the burden was upon the Examiner for the Texas Commission on Judicial Conduct to establish, before the Special Master, the allegations against Respondent by a preponderance of the evidence. In re Brown, 512 S.W.2d at 319-20; see also In re King, 409 Mass. 590, 568 N.E.2d 588 (1991); In re Littleton, 719 S.W.2d 772, 775 (Mo.1986); In re Lowther, 611 S.W.2d 1, 2 (Mo.1981); Geiler v. Comm’n on Judicial Qualifications, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1 (1973), cert. denied, 417 U.S. 932, 94 S.Ct. 2643, 41 L.Ed.2d 235 (1974). B. Standard of Review on Appeal The procedures established for the initial adjudication of the instant case, i.e., formal proceedings before a special master or the Commission, are to be conducted as nearly as practicable in accordance with established rules of civil procedure. Rules FOR the Removal OR RetiremeNt of Judges, 56 Tex.B.J. 823 (1993), Rule 10(d). Moreover, during the course of any hearing conducted in the furtherance of formal proceedings, whether before a special master or the Commission, only legal evidence is to be received. Id., Rule 10(e). Absent a statement of objections to the report of the special master, the Commission may adopt the findings of the special master as its own. Id., Rule 10(j). Consequently, in reviewing the instant case, we hold the findings of the Special Master, as adopted by the Commission, to be tantamount to findings of fact filed by a trial judge in a trial without a jury, and as a result, are reviewable as such. The extensive record in the instant case includes a statement of facts. Consequently, the Commission’s adopted findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards applied in reviewing the legal and factual sufficiency of the evidence supporting findings in a civil case, either by a trial court or by a jury. See Cullen Ctr. Bank & Trust v. Texas Commerce Bank, 841 S.W.2d 116, 121 (Tex.App.—Houston [14th Dist.] 1992, writ denied); Green Tree Acceptance, Inc. v. Holmes, 803 S.W.2d 458, 461 (Tex.App.—Fort Worth 1991, writ denied); First Nat’l Bank v. Kinabrew, 589 S.W.2d 137, 146 (Tex.Civ.App.—Tyler 1979, writ ref'd n.r.e.). A factual insufficiency point requires us to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. See generally In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 836 (Tex.App.—Amarillo 1993, writ denied); Davis v. McQueen, 842 S.W.2d 376, 385 (Tex.App. — Beaumont 1992, writ denied). As in civil appeals, this Review Tribunal cannot substitute its findings for those of the Commission. If there is sufficient competent evidence of probative force to support the findings and recommendation, they must be sustained. See Oechsner v. Ameritrust Texas, N.A., 840 S.W.2d 131, 136 (Tex.App. — El Paso 1992, writ denied). It is not within the province of this Tribunal to interfere with the Commission’s resolution of conflicts in the evidence or to pass on the weight or credibility of the witnesses’ testimony. See Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). Where there is conflicting evidence, the findings of the Commission on such matters will be regarded as conclusive. See Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947); Oechsner, 840 S.W.2d at 136. In considering a “no evidence” legal insufficiency point, we consider only the evidence that tends to support the Commission’s findings and disregard all evidence and inferences to the contrary. See Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). If there is more than a scintilla of evidence to support the questioned finding, the “no evidence” point fails. Worsham Steel Co. v. Arias, 831 S.W.2d 81 (Tex.App. — El Paso 1992, no writ). C. Issues Presented 1. Admissibility of Audio Tapes and Corresponding Transcripts In Points of Error Nos. One and Two, Respondent asserts that the Special Master abused his discretion in admitting various tape recordings in evidence, as well as written excerpts of portions of those tape recordings. The evidence in the instant case shows that in late October and early November of 1991, Officer Joe Haralson of the Texas Rangers received information that Respondent had agreed to take money in exchange for some leniency or dismissal in sentencing in a case involving a D.W.I. probation. This information was provided by Hollis Mathews, the probationer in that case. After receiving this information, Officer Haralson met with Mathews and initiated an investigation of these allegations. After his preliminary inquiries, Officer Haralson concluded that the matter warranted further investigation and contacted Investigator Felix Mares of the Galveston County District Attorney’s Office. From there, the investigation into the alleged misconduct of Respondent became a joint effort between Officer Haralson and Investigator Mares. The evidence in the instant case shows that the audio cassette tapes which were introduced into evidence were “duplicates” from a reel-to-reel recorder properly identified as a Nagra SNS. This Nagra SNS recorder is a portable tape recording device that was used in the investigation by Officer Haralson and Investigator Mares to record the meetings and conversations between Mathews and Respondent. The recorder was concealed from Respondent by placing it on the body of Mathews during these meetings. A “back-up” to the Nagra SNS was also used, that “back-up” being a one-way body transmitter whose signal was to be recorded by a listener using a second tape recorder. Copies of the Nagra SNS reel-to-reel tapes, in cassette form, were made by Felix Mares, Chief Investigator, Galveston County Criminal District Attorney’s Office and were offered as “duplicates” of the original reel-to-reel tapes pursuant to Tex.R.Civ. Evid. 1003. Respondent made no objection to the admission of the audio cassette tapes into evidence as “duplicates,” but rather, limited any objection to the authenticity of the tapes. The Special Master admitted the “duplicates” of the audio tapes over Respondent’s objections. The original recordings made from the aid transmitter, i.e., the one-way body transmitter, were neither offered nor admitted in evidence. Respondent, on review by this Tribunal, contends that a proper predicate for the admission of the above tapes was not laid in that proper identification of the individuals whose voices were recorded was not specifically made and that there is no evidence that the operator of the tape recorder was competent to operate such a device. In Seymour v. Gillespie, the Texas Supreme Court adopted the seven-prong approach to the admissibility of audio recordings. In order for a tape recording to be admissible, the offeror must show or establish: (1) that the recording device was capable of taking testimony; (2) that the operator of the device was competent; (3) the authenticity of the correctness of the recording; (4) that changes, additions, or deletions have not been made; (5) the manner of the preservation of the recording; (6) the identification of the speakers; and (7) that the testimony elicited was voluntarily made without any kind of inducement. Seymour v. Gillespie, 608 S.W.2d 897, 898 (Tex.1980); see also Cummings v. Jess Edwards, Inc., 445 S.W.2d 767 (Tex.Civ.App.—Corpus Christi 1969, writ ref'd n.r.e.); Interest of T.L.H., 630 S.W.2d 441, 447 (Tex.Civ.App.—Corpus Christi 1982, writ dism’d w.o.j.). Moreover, the trial court may infer some of the above elements, and therefore, the proponent need not establish each of them in detail. Seymour v. Gillespie, 608 S.W.2d at 897; see also Edwards v. State, 551 S.W.2d 731 (Tex.Crim.App.1977). When a proper predicate is laid and there are no fundamental problems, the trial court can, in its discretion, admit tape recordings into evidence. See In re Bates, 555 S.W.2d 420, 423 (Tex.1977); Drake v. State, 488 S.W.2d 534, 538 (Tex.Civ.App.—Dallas 1972, writ ref'd n.r.e.). The record in the instant case shows that, at the hearing before the Special Master, the Examiner attempted to lay the predicate for the admission of the cassette tapes into evidence through the testimony of Chief Investigator Mares. Investigator Mares described the Nagra SNS recorder and the number of times it had been used and rated its quality for recording sound as “very good.” Investigator Mares also testified that he was competent and knew how to operate the device and that Hollis Mathews was also competent to operate the recorder. Investigator Mares further testified that he had listened to the recordings and that they had fine quality sound and appeared to be correct and authentic recordings. As to the preservation of the recordings, the record shows that Investigator Mares testified that there are.no indications that the recordings had been tampered with or altered, that there was no reasonable opportunity for others to tamper with them, and that the recordings had been in his office since the time he took possession of them from Hollis Mathews. Finally, Investigator Mares testified that he could personally identify the speakers on the tapes and he described characteristics of the voices and how each might be distinguished; he further testified that the statements on the recordings were made voluntarily. We find the above testimony of Investigator Mares sufficient to establish the admissibility into evidence of the duplicate audio cassette tapes to the same extent as the original Nagra SNS recordings. See Tex. R.Crv.EviD. 1003. Additionally, in considering Respondent’s assertion that there is “no evidence” that the operator of the tape recorder was competent to operate such a device, we have considered only the evidence tending to support the Commission’s findings and have disregarded all evidence and inferences to the contrary, and conclude that there is more than a scintilla of evidence to support the questioned finding. Respondent’s “no evidence” point fails, and Point of Error No. One is overruled in its entirety. In Point of Error No. Two, Respondent complains of the admission into evidence of the written excerpts from the audio tapes. The general rule is that a transcript made from a recording or re-recording is obviously not an “original,” and because it is the product of human agency it is not a “duplicate,” as those terms are defined in Rules 1001(3) and (4) of the Texas Rules of Civil Evidence. Consequently, we hold the Special Master erred in admitting the written excerpts, having previously admitted the audio tapes themselves. However, we find the error in admitting the written excerpts of the recordings into evidence to be harmless. See Tex.R.App.P. 81(b). The record in the instant case clearly shows that the Special Master listened to the entirety of each of the audio tapes previously admitted into evidence, paying special attention to context and audibility. The substance of the written excerpts is completely contained in the audio tapes themselves; therefore, the written excerpts are merely cumulative of the evidence previously considered by the Special Master. Accordingly, Respondent’s Point of Error No. Two is overruled. 2. Definition of “Willful” Misconduct In Point of Error No. Five, Respondent contends that the Commission improperly interpreted the term willful in its findings of fact and conclusions. Specifically, Respondent maintains that the Commission interpreted the definition of willfulness in its broadest terms, finding that Respondent’s actions were willful in that he intentionally engaged in such actions. Respondent argues that a judge can be sanctioned only when the actions are done in bad faith or the equivalent, not when they are merely intentional. We note at the outset that Respondent does not challenge as unconstitutionally vague the phrase “willful or persistent conduct that is clearly inconsistent with the proper performance of his duties.” Tex. Const, art. V, § l-a(6)A. Rather, Respondent simply suggests that a mere finding of “willful” is insufficient, absent a finding of “bad faith,” and by implication, asserts that the evidence is legally and factually insufficient to support a finding of willful misconduct. As noted earlier, this proceeding was initiated pursuant to Tex. Const, art. V, § 1-a. Section l-a(6) reads in part as follows: (6)A. Any Justice or Judge of the courts established by this Constitution or created by the Legislature as provided in Section 1, Article V, of this Constitution, may, subject to the other provisions hereof, be removed from office for willful or persistent violation of rules promulgated by the Supreme Court of Texas, incompetence in performing the duties of the office, willful violation of the Code of Judicial Conduct, or willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary or administration of justice.... [Emphasis added]. Although Texas courts have previously decided cases using the “willful” standard provided by Article V, § 1-a of the Constitution, they have never specifically defined the term “willful” misconduct. In re Davila, 631 S.W.2d 723, 726 (Tex.1982) (twenty-six acts of nepotism and leaving the scene of an accident constitutes willful misconduct); In re Carrillo, 642 S.W.2d 105, 111 (Tex.1976) (misuse of funds by judge constitutes willful misconduct); In re Brown, 512 S.W.2d at 317, 324 (judge willfully committed misconduct by authorizing electronic eavesdropping of an accused defendant and his attorney, but the judge did not engage in willful misconduct by being excessively absent, too readily finding persons in contempt of court, lecturing the county and district attorneys concerning the conduct of their offices, and conducting hearings in the absence of the accused person’s counsel). It is well established that a reasonable construction should be given constitutional provisions, and a provision will not be construed so as to lead to absurd conclusions, great public inconvenience or unjust discrimination, if any other interpretation can be reasonably indulged. Railroad Comm’n v. St. Louis Southwestern Ry. Co., 443 S.W.2d 71, 74 (Tex.Civ.App.—Austin 1969, writ ref'd n.r.e.) citing Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147 (1942). Furthermore, when the meaning of a written law is doubtful, it should have that construction that seems best calculated to promote the public interest, upon the theory that its framers so intended. State v. De Gress, 72 Tex. 242, 11 S.W. 1029, 1030 (1888). It is within these confines that we determine the definition of the term “willful,” as applied to the facts of the instant case. Respondent, relying on authorities from other jurisdictions, contends that a judge can be sanctioned for acting willfully only when it is shown that the judge has acted in bad faith or the equivalence thereof. In re Sheffield, 465 So.2d 350, 357 (Ala.1984); In re Haddad, 128 Ariz. 490, 627 P.2d 221, 228 (1981); Gubler v. Comm’n on Judicial Performance, 37 Cal.3d 27, 207 Cal.Rptr. 171, 182, 688 P.2d 551, 562 (1984); Wenger v. Comm’n on Judicial Performance, 29 Cal.3d 615, 175 Cal.Rptr. 420, 630 P.2d 954, 957, n. 4 (1981); Spruance v. Comm’n on Judicial Qualifications, 13 Cal.3d 778, 119 Cal.Rptr. 841, 532 P.2d 1209, 1221 (1975); Nicholson v. Judicial Retirement and Removal Comm’n, 562 S.W.2d 306, 310 (Ky.1978); In re Inquiry Concerning Garner, 466 So.2d 884 (Miss.1985); In re Kelly, 225 Neb. 583, 407 N.W.2d 182, 185-86 (1987); In re Nowell, 293 N.C. 235, 237 S.E.2d 246, 255 (1977); In re Edens, 290 N.C. 299, 226 S.E.2d 5, 9 (1976); In re Complaint of Gustafson, 305 Or. 655, 756 P.2d 21, 24 (Or.1988). We agree with Respondent to the extent that the term “willful,” as applied in Tex. Const, art. V, § 1-a(6)A, requires a showing, but not necessarily a finding, of bad faith. See In re Kelly, 407 N.W.2d at 182. Moreover, we specifically hold that the term “willful,” as applied in Tex. Const, art. V, § l-a(6)A, is the improper or wrongful use of the power of his office by a judge acting intentionally, or with gross indifference to his conduct. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, corruption, misuse of office, or bad faith generally, whatever the motive. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority may in and of itself constitute bad faith. See generally In re Nowell, 293 N.C. 235, 237 S.E.2d 246, 255 (1977); In re Edens, 226 S.E.2d at 5, 9; Spruance, 119 Cal.Rptr. at 841, 843, 532 P.2d at 1209, 1221; Geiler v. Comm’n on Judicial Qualifications, 110 Cal.Rptr. at 211, 515 P.2d at 11; In re Haggerty, 257 La. 1, 39, 241 So.2d 469, 478 (1970). We now apply the above definition of willful in considering Respondent’s remaining points of error asserting by implication that the evidence is insufficient to support the Commission’s finding of willful or persistent conduct that is clearly inconsistent with the proper performance of Respondent’s duties. 3. Conspiracy to Extort In Point of Error No. Twenty-eight, Respondent contends that the Commission erred in concluding that he conspired with Danny Mendez to extort money from Hollis Mathews. Specifically, Respondent maintains that the Special Master’s Findings of Fact on Specific Allegations contain no finding on conspiracy and further, that there is. no evidence of any such conspiracy. We disagree. The Commission, in its findings, conclusions, and recommendations, concluded that Respondent’s actions between July 10, 1991 and March 16,1992 in conspiring with Danny Mendez to extort money from Hollis Mathews constituted willful conduct clearly inconsistent with the proper performance of his duties in violation of Tex. Const, art. V, § 1-a(6), as charged in Item 1 — Charge 12. The above conclusions by the Commission are premised on the Special Master’s Findings of Fact on Culpability, entered on August 19, 1993, in which the Special Master specifically found as follows: d. Between July 10, 1991 and March 16, 1992, Respondent conspired with Danny Mendez to extort money from Hollis Mathews. Consequently, we hold that contrary to Respondent’s assertions, the record in the instant case does indeed reflect that the Special Master made a specific finding on the conspiracy charge. Respondent next asserts that there is no evidence of any such conspiracy. As noted, the Commission’s First Amended Notice of Formal Proceedings alleged that Respondent entered into a conspiracy with Danny Mendez to extort money from Hollis Mathews. An actionable civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983), citing Great Nat’l Life Ins. Co. v. Chapa, 377 S.W.2d 632, 635 (Tex.1964) and State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 650, 559 (1937). The essential elements are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. Massey, 652 S.W.2d at 934; see also Central Sav. & Loan Ass’n v. Stemmons Northwest Bank, N.A., 848 S.W.2d 232 (Tex.App. — Dallas 1992, no writ). The gist of a civil conspiracy is the damage resulting from the commission of a wrong that injures another and not the conspiracy itself. Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp., 435 S.W.2d 854, 856 (Tex.1968). Thus, proof of intent to participate in a conspiracy is a necessary factor of the “meeting of the minds” element. Id. at 857; Times Herald Printing Co. v. A.H. Belo Corp., 820 S.W.2d 206 (Tex.App. — Houston [14th Dist.] 1991, no writ). The record in the instant case establishes that on January 9, 1992, a conversation took place in the stairwell of the Galveston County Courthouse between Hollis Mathews and Respondent in which the following was discussed: Judge: What you got? Mathews: I got this— Judge: Is it from the probation department? Mathews: Yeah. Judge: Yeah, uh, Danny talked to me about this yesterday as a matter of fact, a few days ago. Mathews: Well, he called me Sunday and I just got that Saturday— Judge: Um-hm. We’ll take care of this. I don’t — what the — it should have been in the first place. Apparently what happened is that — you got— Mathews: —? Judge: Yeah, you got credit for all this and what happened is I’ll bet— Mathews: None of this has been paid. Judge: Oh, yeah, that’s what I’m saying is that this apparently what happened is that it was on the docket sheet but it didn’t get transferred over to the, you know, judgment papers and that’s what the probation department gets. This happens all the time where they get— they fill in the judgment and its different from what the [sic] actually occurs in the courtroom on the docket sheet. So what your, what’s your phone number? Mathews: 948-2841. Judge: 2481. Mathews: 2841. Judge: 28— Mathews: Danny called Sunday I don’t know what he wanted I called him back Monday and he never did return my call— Judge: Well, he talked to me about it, he figured something was going on. Mathews: Where do my other $500 go, do I just give that to Danny, give it to you or what? Judge: Well, I guess give that to Danny and then we’ll take care of this. I mean, this will be taken care of today. Mathews: Be taken care of today? Judge: Yeah. Mathews: I was getting worried about it. Judge: Yeah, ignore that, they gotta come through me to do it. So don’t worry about it. You see Danny, he figured something was going on that’s why he called me on it. And uh and I’ll pull it and send a copy of the docket sheet over to the probation department so they know that you’re clear. Mathews: What about the 27th? Do I still come up here on the 27th? Judge: You won’t need to come back on this at all, period. O.K.? Mathews: O.K. Judge: O.K. goodbye The record further establishes that on January 17, 1992, a conversation took place at Efren’s Paint & Body Shop, located in Texas City, Texas, among Respondent, Danny Mendez, and Hollis Mathews in which the following was discussed: Judge: So, ah what we’re going to do is I’m going to get old Dave Cook to file an early termination. O.K. now you’re scheduled to come on what, next week or week after? Mathews: The 28th but he said not to. Judge: O.K. we’re going to, we’re going to work something to get you off probation. Let’s get them dismissed get it taken off your record. I’m going to appoint, I’m going to get Cook to file a motion have a hearing to have what I don’t think we’ll do, because all Pacheco wanted to do was just get you to come in and say hey, here I am. You did that, made him feel, you know, fucked him all up so he feels real good so he’s happy. We just had a big change of administrations at the D.A.’s office, makes a big, big difference. So probably next week outside two weeks you’ll be dismissed, be off probation, be off your record. We gotta go in the back. Cause we got to help Efrem I got a case in the back. Judge: I just — I just told Hollis, said hey look he was just like you know like hey man I got that son of a bitch come crawling to me. That’s all he wanted to do. Mathews: Now he called me. Judge: Huh— Mathews: He called me. Judge: That’s what I’m saying. He got to — you went in and talked with him— oh, shit— Mathews: I just, uh— Judge: You know he got to dump on you. You know made you feel like a shithead. That’s all he wanted to do. So we’re going to waive all fees we’re going to dismiss the probation. Mendez: How bout that, how bout that D.W.I. class we’re taking? Judge: He does not have to do that shit— Mendez: He gave him a letter did you show it to him? Mathews: No, not in here. Mendez: Oh, O.K. See he was worrying about it, you know— Mathews: I — -I— Mendez: Man I don’t know what I— Judge: So I’ll take care of all that stuff— Mathews: It’s just all had me worried cause I been kinda in the dark I don’t know what— Judge: Oh, you know what they want to do is feel good you know to make sure that they got you under their thumb, he showed you that he could get you under thumb, their thumb, that’s all he needs. So the probation department’s taken care of. Now we get Cook to file a motion for early termination. O.K. We do that Tuesday cause Monday the courthouse is closed. Or whenever Cook shows up. We’ll get him to file a motion and then they’ll scream, holler and yell about it but— Mendez: They don’t wanta [sic] they can’t go over you can they John? Judge: No! absolutely not. That’s my case. There’s nothing that they can do to go over me. So you have nothing to worry about. Mendez: See he won’t have to go over to that D.W.I. class or nothing. Judge: I’ll waive that, so he’s got no problem— Mendez: He was worrying about it, I said Goddamn I said, you know, let me see what we can come up with— Judge: We, uh— Mendez: I don’t understand— Judge: — Mendez: I understand, Goddamn, I ain’t that — , man you know what I done, it was cold this morning and I was putting that goddamn— Someone: I think you sure — Mexico, bom in Mexico, you know— Mendez: Hey this guy is good as blood man he just can’t jump up I’m telling you he told you he’s the man that’s got all the power in the world. That fucking goddamn what-do-you-call-it— Mathews: Probation officer? Mendez: He ain’t got dick over him. He says nope I’m waiving and that’s it. Mathews: I know Danny, still, if you’s [sic] in my position you would be too. Mendez: Yeah, I know yeah. Mathews: You know, I got into this but, you know, I — not really knowing you and not knowing anybody really— Mendez: Yeah, well we’re not going to fuck you I promise you. I been, you know, your deal is straight, that’s why I’m saying hey just come off with the money that makes me even look better, you know I’m just telling you my opinion. You know what I mean. Mathews: We can take care of that tonight or in the morning— Mendez: You’re not going to get fucked— Judge: I’m fixing to get you straight so you just— Mathews: I just you know like I was telling you I don’t you know until I come back from Vegas I didn’t know Danny and I didn’t know what was going on— Judge: Danny’s problem is that Danny doesn’t know what the shit’s — I mean he says all these things and he don’t know what he’s talking about and he gets people already committed and involved and — and he really doesn’t know what he’s doing so I mean he’s a super guy, he’s one of my best friends— Mathews: Yeah— Judge: But he’s he just — you need to take him and kick his ass every once in a while— Mathews: I just really got to the point, well now, her’s — between all that sheet-rock and stuff on his house and I already spent — I already gave him $500 and I got that other money coming in from my uncle, it’s shit probably here now, I don’t know. Judge: Super guy, good guy but he just doesn’t know what he’s talking about a lot of the time anyway — your [sic] in good shape, guarantee it. What we, we’ll do is you’ll be getting a call from a guy. I got the phone number, the one you gave the 948 number. And ah, ah I’m going to see next time — I see Cook Tuesday, I’ll tell him that, you know, he’s going to file a motion, you have to get the probation dismissed get it taken off the records for you. Mathews: That call will be an answering machine I been trying to get some work over there at Missouri City and I haven’t had no luck yet. Judge: That’s O.K. Just remember the name David Cook. David Cook. Man he’s another crazy son of a bitch. Mathews: Well that other, that something, that money will be here tonight or this evening, it’s probably already here— Mendez: Well, if it is, come by the house and I’ll get it to you in the morning. Judge: Whatever Danny, he tells you, blow it off, talk to me first. O.K.? Mendez: Well I mean he’s got to worry about, John, I understand the man he ain’t got nobody to look to— Judge: I guess so if he told me what was happening, shit I’d be worried about it too. Goddamn, I tell you shit man your nuts are going to jail man some big nigger going to be fucking you in the ass for the next two years— Mathews: Now that’s when they get me on the murder charge. Go out this door or that one? ■ Mendez: No, I saw— Judge: Where you parked? Mathews: Right there. Judge: Go out that door— Finally, the record in the instant case shows that on January 28, 1992, a private conversation took place in Respondent’s chambers in the Galveston County Courthouse among Respondent, Danny Mendez, and Hollis Mathews in which the following was discussed: Judge: What we’re going to do is on those two charges you got. Mathews: Yeah, that was what my son-in-law filed that on me. Judge: So what about that stuff. That the only reason you’re still on probation right now because they — they got those two charges pending until we get ’em rid of them, dismiss that — would he come in and sign a statement that he don’t want to prosecute? ■ Mathews: No, cause he’s an asshole. I mean there’s no way there. Judge: But he doesn’t want to prosecute it does he? Mathews: I don’t know, I didn’t do nothing anyway. Judge: I mean, here’s the problem, if he doesn’t come in and they’ll set it, reset, we’ll set it up so we need to sit down and either just get — get it over with real quick between the next month we’ll get you off probation. What I’m gonna do is talk to Cook, I haven’t seen that son of a bitch in a week and get him on, appointed on the case. You’re still not working, right? Mendez: Naw, he ain’t — -very little. Judge: O.K. appoint him. And we’ll just set it down for trial and we can have a trial like that we’ll take him out and we can see what evidence — that once we got that case disposed of then you can get off probation on the other one. Mendez: Uh, John, the man, he said that, that he had — he had to pay that 500 and something dollars probation. Mathews: That’s what I was— Judge: No, that all can be waived, you’re not working. Mendez: That’s what he can’t understand, I promised that he didn’t have to pay ho money or nothing. Judge: You’re not working, you [sic] don’t, you can’t, you don’t pay it, guarantee it. Mathews: Where I’s coming from is, you know, he told me that by the 28th to have that money there and to be there in his office the 28th or he would have me put in jail. Judge: He can’t do it. I’m the only one that can do it. Mathews: And then, you know, then I was figuring, you know, I did that work for Danny and I gave you that 500 and then Danny told me that you wanted the other 500 before you— Judge: That’s all, guarantee you, I guarantee you, you, nothing’s gonna happen. Now he can tell you anything he wants to but you’re not working now; you’re not making any money. Mendez: Let me ask you something, John, can you give him something for him that you waive that in the meantime you know as far as the money and all that— Judge: Well, here’s what we’ll do, we’ll get Cook appointed on you, you come in here we’ll have a. hearing on that in open court and everything like that and you’re not working and I’ll waive it and nobody can say a damn thing. That way it’s all over with, I’m talking about the probation part now, then you’re off the hook on that. Cause this happens, you know, this happens all the time, we do this fifty times a month. Mathews: I thought you couldn’t do it because of those other charges. Judge: No, no, no, I’m talking about waiving— Mendez: The money. Mathews: Oh the money. Judge: You’re not working; we waive this all the time. Waive the court costs, probation fees, fine, the whole thing. On the probation, getting you early termination, we can’t get you off until you can resolve these threats or whatever, these other charges. Mathews: Yeah, that I understand. Judge: O.K. So this is two different things and I, uh, you want to do it on the 28th, that’s like tomorrow. Mathews: 28th of February. At first I was supposed to be in here the 28th of January. Mendez: You got plenty of time. Judge: Uh, if you want us to do it that way, we can resolve this other case before the 28th. You can come in and maybe get a, get off probation at the same time too. We’ll just have a hearing, waive the fees and terminate the probation, just do it all in one boom, one swoop. Mathews: They don’t have a case, what if his word overrides mine and I end up being guilty. Judge: Trust me. I’ve handled million of those kinda in-law eases and family eases and 99— Mendez: Well see he don’t, he don’t know, that he don’t really know that’s why he’s kinda — I told him, I said man, we’re good as gold— Judge: Nothings gonna happen to you, and, you know, especially since it’s just all family. And it’s bullshit. We have carefully reviewed the evidence in the instant case that tends to support the Commission’s findings and have disregarded all evidence and inferences to the contrary. The evidence, as detailed above, clearly shows that at the time Respondent privately met with Danny Mendez, Hollis Mathews was on misdemeanor probation as well as a defendant in a then-pending criminal proceeding. The object sought to be aceom-plished in the discussions between Respondent and Mendez was to effect the transfer of $500 from Mathews for the purpose of “taking care” of pending criminal matters. The conversations of January 9, 17, and 28, 1992 in which Respondent was an active participant reveal an understanding between the parties as to the course of action to be taken. The acts of Respondent were overt, unlawful, and sought to do damage to Hollis Mathews as well as to the judicial system that Respondent is charged to preserve. We hold that there is more than a scintilla of evidence to support the questioned finding, i.e., that Respondent conspired with Danny Mendez to extort money from Hollis Mathews between July 10, 1991 and March 16, 1992. Consequently, Respondent’s “no evidence” point must fail. Respondent, in Point of Error No. Twenty-eight, has elected not to question the factual sufficiency of the evidence. Nonetheless, in the interest of justice, this Tribunal has examined all of the evidence in order to determine whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In so doing, we find that there is sufficient competent evidence of probative force to support the finding. Accordingly, we overrule Respondent’s Point of Error No. Twenty-eight in its entirety. 4. Ex parte Communications In Points of Error Nos. Six through Twenty-seven, Respondent asserts that the Commission erred in interpreting the law concerning ex parte communications with probationers. See Tex.Code CRIM.PROC.Ann. art. 42.12(ll)(a) (Vernon Supp.1994). In Point of Error No. Six, Respondent contends that the Commission erred in finding and concluding that Respondent’s discussions with Hollis Mathews, without notice to and outside the presence of the District Attorney’s office, constituted willful violations of Canons 1, 2, and 3A(5) of the Texas Code of Judicial Conduct. It is axiomatic that an independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should observe high standards of conduct so that the integrity and independence of the judiciary is preserved. See Texas Supreme Couet, Code of Judicial Conduct, Canon 1, Amended to April 1,1988, reprinted at Tex.Gov’t Code Ann., title 2, Subt. G, Appendix B (Vernon 1988). A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Id., Canon 2A. In that regard, a judge should not allow family, social, or other relationships to influence judicial conduct or judgment; nor should a judge lend the prestige of the office to advance the private interests of the judge or others. Id., Canon 2B. Every effort must be made to avoid conveying or permitting others to convey the impression that they are in a special position to influence the judge. Id. The Texas Code of Judicial Conduct further provides that, except as authorized by law, a judge shall not directly or indirectly initiate, permit, or consider ex parte or other private communications concerning the merits of a pending or impending judicial proceeding. Texas SupReme Court, Code of Judicial Conduct, Canon 3A(5). Ex parte communications are “those that involve fewer than all of the parties who are legally entitled to be present during the discussion of any matter. They are barred in order to ensure that ‘every person who is legally interested in a proceeding [is given the] full right to be heard according to law.’ ” JEFFREY M. Shaman, et al., Judicial Conduct and Ethics, § 6.01 at 145 (1990). The principle underlying such prohibition, as it regards the disposition of criminal matters is quite simple: the disposition of criminal matters is the public’s business and ought to be conducted in public in open court. See Tamminen v. State, 644 S.W.2d 209, 217 (Tex.App. — San Antonio 1982), aff'd in part and rev’d in part, 653 S.W.2d 799 (Tex.Crim.App.1983); Tex.Code CrimProcAnn. art. 1.24 (Vernon 1977). Private adjudications fly in the face of our judicial system’s abiding commitment to providing public access to civil and criminal proceedings and records. See Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Our form of government is rooted in a recognition of the importance of open and public proceedings. Subjecting judicial proceedings to public scrutiny accomplishes two important goals. First, it provides the public with an opportunity to exercise its right to monitor and evaluate its judicial system. Second, and equally important, a judge’s knowledge that his or her actions are not shrouded in secrecy fosters a stronger commitment to strict conscientiousness in the performance of judicial duties. Our courts have recognized that secret tribunals exhibit abuses that are absent when the public has access to judicial proceedings and records. See Express-News Corp. v. Spears, 766 S.W.2d 885, 890 (Tex.App. — San Antonio 1989, orig. proceeding [leave denied]) (Cadena, C.J. dissenting). The judiciary has no special privilege to suppress or conduct in private proceedings involving the adjudication of causes before it. In fact, such secrecy frustrates the judiciary’s responsibility to promote and provide fair and equal treatment to all parties. Individual judges are charged with the task of adjudicating claims in a manner that protects the rights of both parties. A judge’s private communications with either party undermine the public’s right to evaluate whether justice is being done and removes an important incentive to the efficient resolution of cases. The record shows that Hollis Mathews appeared in Respondent’s court on August 28, 1991 and pleaded nolo contendere to the charges of driving while intoxicated in Cause Nos. 116856 and 120568. Mathews was sentenced by Respondent to 3 days in jail and a $100 fine in the first case and 2 years in jail, probated for 2 years, and a $1,000 fine in the second case. Mathews testified that shortly after his appearance in court, he talked to Respondent at Efren’s Paint & Body Shop in Texas City. Mathews further testified that during this conversation, at which only he, Respondent, and Danny Mendez were present, Respondent told him “not to worry about it, that he [Respondent] would take care of it in two or three months,” and that “he would have it all waived, dismissed.” As noted in our discussion of Points of Error Nos. One and Two, the record shows that several more conversations about the status of Mathews’ probation took place between Mathews and Respondent. These conversations were tape recorded, and duplicates of the original recordings were admitted into evidence and were listened to and considered by the Special Master. As extensively addressed in Respondent’s Point of Error No. Twenty-eight, the taped conversations included discussions held January 9, 1992, January 17,1992, and January 28,1992. Further, the record shows that on March 6, 1992, a conversation took place in Respondent’s chambers at the Galveston County Courthouse between Danny Mendez and Respondent, in the presence of Hollis Mathews, in which the following was discussed: Mendez: Mr. John Thoma— Judge: —Did you go by and talk to Mr. Pacheco? Mendez: Yes, sir. I went by and talked to, not to Pacheco, this is a new guy, and I talked to him and I told him what you said and he said O.K., no problem. He said to give him a call. Judge: Goudeau— Mendez: I told him that you were waiving the fees and, you know, he’s a good old guy. What we gonna do [sic] the weekend John? Judge: I gotta go to Austin. To take Eve up there to college. Mendez: I thought you meant you were going to get your head examined. Judge: Maybe. Mendez: Heeee— Judge: [On telephone] Mr. Goudeau, please. Bernard, this is Judge Thoma at the courthouse. Oh, pretty good. Uh, listen, did, we’ve got a fellow that’s on probation, been on for a while, by the name of Hollis Mathews. Oh, O.K. then, I just double checking to see if he had come, come over, there. Uh, I know his old employer and would follow him and this guy is just down on his luck. Is there any problem with me waiving the fees to give him a chance to get back up again? Uh-huh. Sure, no problem. Yeah, I’m at 233. Uh-huh, O.K., no problem. Judge: He’s going to check with his supervisor said no problem, so we can do that today. Mendez: Well what you want, you want us to hang around here. Judge: If you want to, there’s no reason to. Mendez: Well you know what, what I was going to do is get the sheet, you know, where you waived everything. Judge: Yeah, uh, why don’t you come on out here and get Carolyn to bring that up— Additionally, on March 21, 1992, a conversation took place at Efren’s Paint & Body Shop between Hollis Mathews and Respondent in which the following was discussed: Mathews: How you been? Judge: I’ll tell you what — after today. This is the third day in a row I’ve not drawn a sober breath. Setting this thing up — tomorrow just stay home, turn the T.V. on. Mathews: Kick back, forget about it. Judge: Eat some oatmeal— Mathews: —Danny— Judge: Yeah— Mathews: I didn’t want to keep bugging you; I just, you know, I got all upset about that deal and I want [sic] make sure that Danny gave you that money and everything. Did he? Judge: Uh, yeah, that parts done, then, then. You’re straight with him, Danny? Mathews: Yeah, yeah. Judge: O.K. Mathews: But he gave you that other 500 that I gave him the other day? Judge: Everything is waived, and everything is, you’re O.K., right? Mathews: Yeah. Judge: O.K. Mathews: See, I’ve got, the reason I want to make sure, see, is I’ve gotta go back in front of you the 30th. On that son-in-law matter. Judge: Yeah, listen. Let me ask you something; is he gonna continue to press charges? Mathews: Yeah. Judge: You’re still not working, right? Mathews: I’m working some, yeah, now. Judge: What would you say you’re making a month? Mathews: It varies; when it’s good, I make good money,— Judge: But when you’re not, you don’t. Mathews: When I’m not, I don’t make nothing. Sometimes I might make, uh, might make a 1,000 dollars in 3 or 4 days; then I might go 30 days and not make a penny. Judge: Well, when you’re there the 30th let’s see how it’s going because I what uh, uh, if you’re not then we need to appoint you an attorney and let him take care of it, cause, uh, you don’t, you don’t want to handle that yourself. At each of the above conversations, Mathews and Respondent openly discussed what steps they would take to get the fines, fees, and costs of Mathews’ probation waived and the case dismissed. It is úndisputed that the District Attorney’s office had no knowledge of any of the above meetings, discussions, and arrangements between Mathews and Respondent, and further, that a representative from the District Attorney’s office was never present during any of these discussions. The record clearly establishes that Respondent permitted, participated in, and considered private communications concerning the merits of Hollis Mathews’ pending, as well as impending, judicial proceeding, i.e., the ongoing probationary period as well as the prospective waiver of monetary conditions of probation and the ultimate dismissal of the criminal matter. Thus, the question presented is not whether any such discussions took place, but rather, whether the above discussions were authorized by law. Respondent correctly describes the relationship that exists between a trial judge and a probationer as contractual in nature, in that the judge agrees with the criminal defendant that clemency by way of probation will be extended if the defendant will agree to perform certain requirements and conditions. Espinoza v. State, 486 S.W.2d 315, 316 (Tex.Crim.App.1972) citing McDonald v. State, 442 S.W.2d 386 (Tex.Crim.App.1969) and Glenn v. State, 168 Tex.Crim. 312, 327 S.W.2d 763, 764 (1959). Moreover, on review, both the Commission and Respondent concede that a trial judge having continuing jurisdiction over a probationer may at any time during the period of probation alter or modify the conditions of such probation. Tex.Code CRiM.PROC.ANN. art. 42.12(ll)(a) (Vernon Supp.1994). Respondent, however, goes further by contending that a judge is statutorily authorized to modify or alter conditions of probation at any time and at any place, to the exclusion of all other parties who may have an interest in the proceedings. We strongly disagree. The citizens of Texas, and especially the parties who may have an interest in the proceedings, are entitled to see and hear what goes on in the courts of our state. See Tex.Code CRIM.Proo.ANN. art. 1.24. A modification of probation, although administrative in nature, is nonetheless a facet of a criminal proceeding in which society has an interest. It is a proceeding to which a probationer and the District Attorney are entitled to notice and, if desired, an opportunity to be present and heard, if a hearing is not otherwise waived or required. As noted in response to Point of Error No. Twenty-eight, the evidence clearly shows that at the time Respondent privately met with Hollis Mathews, Mathews was on misdemeanor probation, and later was a defendant in a then-pending criminal proceeding. The discussions were not communications concerning uncontested administrative or uncontested procedural matters, but rather, were designed to “take care” of pending criminal matters. The acts of Respondent were overt, unlawful, willful, and ultimately sought to do damage to Mathews as well as the citizens of Texas by depriving the parties of their day in court. Furthermore, Respondent’s disposition of Criminal Cause No. 120568 outside the courtroom when court was not in session improperly removed the proceeding from the public domain where it belonged and made it instead a private matter between him and a probationer/defendant. It is for that reason that in the instant case we cannot concur with Respondent’s assertion that a judge may unilaterally and without notice to the District Attorney, modify the terms and conditions of probation at any time and in any place, including paint and body shops, stairwells, private office spaces, and barbecues. Respondent’s ex parte communication and ultimate resolution of a criminal matter out of court, serves to suggest to the citizens of our state that judges, who are sworn to impartiality, are entitled to implement an “open door policy,” which may be available to a select predetermined constituency. An “open door policy,” or the disposition of any case for reasons other than an honest and open appraisal of the facts and law as disclosed by the evidence and the advocacy of both parties, undermines the integrity of the courts, breeds skepticism and distrust, and thwarts the principles on which the judicial system is based. See Sun Exploration & Prod. Co. v. Jackson, 783 S.W.2d 202, 206 (Tex.1989) (Spears, J. concurring). Given the above, we find that Respondent’s private communications with Hollis Mathews concerning the merits of his then-pending probation and its conditions, as well as his impending modification of such conditions of probation, to be ex parte communications, not authorized by law. Accordingly, Respondent’s Point of Error No. Six is overruled. In Point of Error No. Seven, Respondent asserts that the Commission erred in finding and concluding that the ex parte communications between Mathews and Respondent on November 12, 1991, January 9, 1992, January 28, 1992, March 6, 1992, and March 21, 1992 constituted persistent conduct in violation of Article V, § l-a(6)A of the Texas Constitution. Unlike the contention in Point of Error No. Twenty-eight, Respondent does not challenge the definition of the word “persistent,” as applied to the facts of the instant case. “Persistent,” in its common usage, means continuing or inclined to continue in a course without a change in function or structure. WebsteR’s Ninth New Collegiate DICTIONARY, 877 (1984). Whether or not a continuing course of conduct is persistent is a question of fact. The evidence in the instant case clearly establishes that at the time Respondent privately met with Hollis Mathews on January 9, 1992, January 17, 1992, January 28, 1992, March 6,1992, and March 21, 1992, Mathews was on misdemeanor probation and was a defendant in a then-pending criminal proceeding. The discussions were not communications concerning uncontested administrative or procedural matters, but were instead designed to “take care” of pending criminal matters. On November 12, 1991, Mathews was on misdemeanor probation and met privately with Respondent about the loss of his driver’s license. Mathews testified that at the time of the discussions, no member of the District Attorney’s office was present, nor was there any such representative present at the time his license was granted. We have examined all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. We hold that there is sufficient competent evidence of pr