Former Houston Appellate Justice Takes Aim and Fires at Fort Worth Court’s ‘Unethical’ Opinion

Not one to tilt at windmills, nevertheless Murry Cohen would not give up.

Three justices on the Fort Worth Court of Appeals were wrong, he believed: Not necessarily on the law in the personal-jurisdiction case in which he submitted an amicus brief. But he believed strongly they went too far in their further aside that ExxonMobil, as a mainstay of the vital Texas energy economy, deserved protection even if the company lost in their analysis that out-of-state defendants Exxon wanted to depose before suit in Texas lacked “sufficient” contacts with Texas to be deposed.

As Cohen framed his issue: “Does it violate the Texas Code of Judicial Conduct for an appellate court in an opinion to ‘confess to an impulse to safeguard an industry that is vital to Texas’s economic well-being’ and describe the blessing” of being “a conservative panel on a conservative intermediate court in a relatively conservative part of Texas”?

”I don’t care whether review is granted,” he told the Texas Supreme Court in his brief, “what rule of law controls this case, or who wins. I care whether this Court will publicly condemn [that] language from Second Court of Appeals’ opinion.”

The court of appeals had just held against ExxonMobil in its effort to depose, by a Rule 202 motion, a host of California entities the energy giant suspected of thwarting its free-speech rights in City of San Francisco v. Exxon Mobil Corporation in June 2020. But in an opinion section titled “Some Final Thoughts,” the panel let its thoughts be known. And Cohen, a justice on Houston’s First Court of Appeals for almost 20 years, cried foul.

“The ‘Final Thoughts’ are a political advertisement misplaced in a judicial opinion. They violate multiple Canons of the Code of Judicial Conduct, discredit the judiciary, and should generate meritorious motions to recuse these justices by litigants opposing oil industry parties in the Second Court of Appeals.”

The court, Cohen wrote, “’confessed’ its prejudice in favor of the Texas oil industry, effectively apologized for ruling against the Texas oil industry and Exxon, reassured the public of its conservative bona fides, and described the ‘blessing’ of being conservative.”

Cohen deferred questions on his brief. “I prefer it to stand on its own.”

“In almost five decades as a lawyer,” Cohen concluded, “I’ve read plenty of bad opinions. In almost two decades as an appellate judge, I surely wrote some. None was near this offensive. None of the distinguished lawyers, law professors, and former judges I consulted in Texas and elsewhere had seen or imagined anything like it.”

Cohen was joined in the amicus by longtime Houston lawyer Kenneth Marks.

Cohen, now a solo arbitrator and appellate advocate after retiring in 2018 from Akin Gump, filed a complaint with the state Judicial Conduct Commission and, when the commission dismissed the complaint, Marks stepped in to seek reconsideration. Reconsideration was denied.

The amicus brief to the Supreme Court, submitted Monday, included an affidavit by former Cornell Law professor Charles Wolfram. Wolfram drafted the Restatement of the Law Governing Lawyers.

“But if they didn’t know what they were doing and the Commission on Judicial Conduct won’t tell them,” Cohen said, “this Court should.”