dissenting.
I respectfully and hurriedly file this dissent.
This matter was tried before this Special Court of Review on September 18, 1992. Section 33.034(h), Tex.Gov’t Code Ann. (Vernon 1988) allows only 60 days for this Court to issue a written decision. The majority opinion was not received in my office until November 6, 1992. That opinion was not actually received by me until November 12, 1992, allowing five days to file this dissent. This should in no way be considered a reflection on Justice Cohen or Justice Mirabal for their diligence has been absolute. I simply raise this issue for leg*583islative consideration of amending § 33.-034(h) to allow at least a 90 day period of time for issuance of an opinion. Enough on that.
Perception is a right belonging solely to the perceiver. Three justices sat in the trial of this cause but this justice walked away with diametrically opposing perceptions of the evidence.
The oral testimony came through four witnesses, Lieutenant Manuel Longoria, Robert F. Lipo, Jr., Judge Tony Jimenez and Melissa Barlow. In a nutshell, most of this testimony was directed toward trying the conduct of Officer Michael Heim, as opposed to the conduct of Judge Jimenez. From the record before us and as evidenced by the majority opinion, Officer Heim has been tried in absentia many times since October 2, 1991 without ever having his day in court.
From the beginning, Judge Jimenez has sought to justify the advancement of his private interest against Officer Heim by contending that he was pursuing a matter of public interest. The evidence does not support this contention. Judge Jimenez, in response to questions as to why he wrote the second letter of October 29, 1992, stated, “... I was obviously biased against the officer, ...” Is this pursuit of a matter of public interest?
In the opinion of this writer, it was at the very moment that Judge Jimenez became aware of personal bias, that further pursuit of the issue became violative of Canon 2 B which states, “A judge should not lend the prestige of his or her office to advance the private interest of himself or herself or others.” From the evidence, I conclude that in fact Judge Jimenez was advancing his private interest and not that of the public.
Counsel for the State Commission on Judicial Conduct posed the following question to Judge Jimenez, “If I would ask you to state a couple of words that you would believe would be hallmarks of what is expected of a judge, what would those words be?” Judge Jimenez responded, “integrity, fairness.” When personal bias prevails over integrity and fairness, the end result is exactly the case we have before us.
When Judge Jimenez heard through his court clerk, Mr. Trevino, the alleged statement of Officer Heim, would not fairness dictate the right of Officer Heim to be heard? Judge Jimenez immediately held an ex parte hearing, placed Trevino under oath, and found Officer Heim guilty without any awareness by Officer Heim that such a proceeding had occurred. Somewhere entwined in the meaning of fairness exists the concept of due process. More is required of judges than self-labeling ourselves as “fair.” We must indeed and in fact, be fair and yes, even when our personal feelings are involved, we must demand due process for all.
Based upon Mr. Trevino’s sole testimony, Judge Jimenez considered holding a “contempt hearing” directed toward Officer Heim. The record is unclear as to whether Judge Jimenez intended to allow Officer Heim to be present.
Next, in pursuit of his personal bias, Judge Jimenez, unbeknownst to Officer Heim, sent the October 10, 1991 letter to Chief of Police, William Gibson, with copy to Steve Hilbig, District Attorney. The majority has referenced only one paragraph of this letter. Suffice it to say, the October 10 letter focused on Officer Heim’s alleged statement to Trevino about Judge Jimenez’s ruling at the suppression hearing and how Officer Heim’s professionalism should be called into question. Again, Officer Heim is on trial without notice.
The majority states, “It is important to note that the Commission has never alleged that Judge Jimenez’s accusations against Officer Heim were false in any respect.” I respectfully, but forcefully disagree with this position. The Commission offered and had admitted into evidence the “Charging Document,” exhibits and attachments. Among these exhibits under label “D” is a letter, set forth hereafter, which I believe clearly suggests the falsity of Judge Jimenez’s accusations against Officer Heim. I should make it clear that I have not considered exhibit “D” for truth therein contained but rather as an absolute denial to *584Judge Jimenez’s accusation against Officer Heim. Nevertheless, the Commission’s only burden was to prove by a preponderance of the evidence that Judge Jimenez had violated Canon 2B. Proof on that issue requires no allegation nor proof as to the falsity of Judge Jimenez’s accusations against Officer Heim. The only proof required is evidence of the advancement of Judge Jimenez’s private interest.
Judge Jimenez’s letter of October 10, 1991 received no response from Chief Gibson. Evidence shows that Judge Jimenez was not satisfied with this lack of response and on October 29, 1991, directed another personal attack upon Officer Heim by means of a second letter to Chief Gibson, copy to Steve Hilbig. Note, Officer Heim was again given no notice.
It is this October 29, 1991 letter which furnishes for me that evidence and proof, even beyond the preponderance requirement, that Judge Jimenez was in pursuit of his own personal and private interest against Officer Heim. On October 29, 1991, Judge Jimenez then accused Officer Heim of dishonesty and racism and in that letter stated, “this was a very different and personal decision to make.” (emphasis mine.)
It is apparent that having failed to receive the expected response to his October 10, 1991 letter, Judge Jimenez became dissatisfied with the San Antonio Police Department’s handling of the matter. In an effort to make his personal position more demanding, Judge Jimenez decided that additional allegations of dishonesty and racism would add more fuel to the flame. I perceive that Judge Jimenez well knew the impact these allegations of dishonesty and racism would have against, in his words, this “anglo” police officer. In response to direct questions from his attorney, Mr. Mark Stevens, Judge Jimenez made the following statement:
“San Antonio is a multi-cultured — cultural city. If you polarize this community, and as a judge who runs county wide, the effect of that is damaging to me, because you would have a hispanic judge complaining of an anglo police officer in a multi-cultural city.”
Historically Judge Jimenez began his law practice in Texas in 1976. His first judicial experience was as municipal judge for the City of Elmendoff, Texas, south of San Antonio. Judge Jimenez took over the County Court at Law bench of Bexar County in 1985. Thus, Judge Jimenez, an elected official, well knew the effect that charges of dishonesty and racism would have in Bexar County. The best that I can determine from the evidence, these unsubstantiated charges against Officer Heim did exactly what Judge Jimenez foresaw or should have foreseen that they would do, i.e., create a polarization in this multi-cul-tural community.
Judge Jimenez took no precaution for making either of his two letters confidential. The evidence is lacking as to how or by whom these letters ended up in the possession of the news media. The resulting effect of these letters reaching the media was newsworthy to say the least. Headlines became “Judge Labels Arresting Cop a Liar,” “Judge Picking on Officer, Wife Says,” “Judge Testifies in DWI Proceeding.” This news was also covered by television and radio stations.
The majority states, “Evidence showed that Judge Jimenez was surprised and displeased when his letters became public and he attempted to find out who passed them to the media.”
Judge Jimenez need look no further than himself. Judge Jimenez made no effort whatsoever to prevent these letters from reaching the hands of anyone. These letters were simply open letters with no restriction as to use, originals to Chief Gibson, copies to Mr. Steve Hilbig. Judge Jimenez testified that he intended the letters to be confidential which I view as merely an after the fact effort of explaining away his lack of concern for confidentiality.
Judge Jimenez continued his personal pursuit toward Officer Heim by then accepting invitations from the television and radio media to appear publicly. I can only view this as evidence of Judge Jimenez’s *585unwillingness to allow proper authority to handle matters relating to Officer Heim. This is additional proof of Judge Jimenez’s continued and unyielding pursuit of his private animosity against Officer Heim. Further, evidence shows that Judge Jimenez began his own private investigation of Officer Heim.
By this time, Officer Heim had been tried many times in absentia. The first trial was held in Judge Jimenez’s courtroom on the sole testimony of Mr. Trevino. The second and third trials were the October 10th and 29th letters. The fourth trial of Officer Heim was in the media and the fifth trial of Officer Heim occurred before this Court. Yet, Officer Heim has still not had his day.
Even though Officer Heim has heretofore gone hence without day, we do have before us, exhibit “D”, a letter dated January 10,1992, directed to the Commission on Judicial Conduct, constituting a complaint against Judge Jimenez, filed by Barbara Woodward Heim, wife and attorney for Officer Heim. This letter initiated the investigation of the conduct of Judge Jimenez. Lengthy though it be, I set it forth only to show that possibly there exists another side to the heretofore one sided story advanced by Judge Jimenez. The letter is as follows:
To Whom It May Concern:
Bexar County Court at Law No. 7 Judge Tony Jimenez is attempting to use his position to ruin the reputation of a San Antonio police officer, Officer Michael Heim. Officer Heim was a Bexar County Sheriff’s Deputy for five years and has been a San Antonio police officer for over twelve years. Often, a law enforcement officer’s only asset is his good name and reputation for fairness.
Judge Jimenez’ efforts began in October, 1991 with two letters sent to San Antonio Police Department Chief William Gibson questioning Officer Heim’s professionalism, integrity and objectivity in the enforcement of the law. Enclosed herewith are copies of these letters.
This series of events was initiated by a ruling by Judge Jimenez on a Motion to Suppress hearing questioning the probable cause for the stop, in which Officer Heim was the arresting officer/witness. Officer Heim is assigned to the San Antonio Police Department’s D.W.I. Enforcement Unit. The Defendant in this case was arrested for D.W.I. and D.W.L.S. after being stopped for driving at 10 MPH in a 30 MPH residential area at 8:30 A.M. (a suspicious person/vehicle which was impeding traffic — case law: 1976 Greer v. State majority of probable cause — driving too slowly). The front right passenger also was not wearing a seat belt. The vehicle was stopped by Officer Heim. He found the driver to be intoxicated, arrested him for D.W.I. (0.18 BAC) and driving while license suspended. On October 2, 1991, following the Motion to Suppress hearing, the case was dismissed by Judge Jimenez. This particular Defendant was on probation for D.W.I. in Judge Jimenez’ Court at the time of the hearing and has subsequently been arrested again for D.W.I.
When Officer Heim learned of the Judge’s decision by telephone from the Judge’s court co-ordinator, Abel Trevino, Officer Heim expressed shock, great surprise and disappointment. It was later reported by Abel Trevino to Judge Jimenez that Officer Heim had described his decision as “chicken shit.” These were not any words used by officer Heim. Officer Heim did not use any profanity in his telephone conversation with Abel Trevino.
Officer Heim has appeared many times in Judge Jimenez’ Court over the past six to eight years. Never before, to Officer Heim’s-knowledge, has any question concerning Officer Heim’s job performance or demeanor been raised by Judge Jimenez or any other Judge in Bexar County. Since October 2, 1991, Officer Heim has not appeared in County Court No. 7, having received no subpoenas requiring his presence as a witness, nor does he wish to be part of any proceeding in a court where the Judge does not follow the law based on his personal prejudices, whims or biases.
Officer Heim is known as an uncompromising enforcer of the law, especially *586the D.W.I. statutes since he has been a member of the San Antonio Police Department D.W.I. Task Force as of March, 1986. He will arrest and has arrested any motorist found to be driving while intoxicated, regardless of who they are, who they know, their occupation or their ethnic origin. Officer Heim’s main concern is public safety through strict enforcement of existing laws.
Judge Jimenez due to his personal biases is refusing to handle the business of his Court in a fair and impartial manner. He did not bother to find out that Officer Heim was assigned to a heavily Hispanic part of San Antonio before deciding not to hear his cases and claiming his stops were racially biased. If Judge Jimenez was unable to be a fair and impartial judge in this case in regard to Officer Heim’s testimony, why did he continue to hear the case?
The letters from Judge Jimenez to Chief Gibson containing the unsubstantiated allegations adversely reflecting upon Officer Heim’s character were released by Judge Jimenez to a reporter from a San Antonio newspaper. Judge Jimenez is exerting pressure on those in power (Bexar County District Attorney and San Antonio Police Department Chief of Police) to have Officer Heim neutralized as a credible witness in D.W.I. cases (Officer Heim has filed over 3,000 cases in the last eight to ten years). After six years of testimony in Judge Jimenez’ Court by Officer Heim, Judge Jimenez now presents these allegations.
Michael Heim’s effectiveness as an impartial officer of the law has been seriously attacked by a group of politicians, including defense attorneys, in an attempt to silence him and prevent him from arresting anyone and everyone found to be D.W.I. in the course of his duties.
By characterizing Officer Heim’s official activities as racially motivated, Judge Jimenez pushes every political panic button on the local scene. Any fair examination of the facts would reveal that the area of his assignment (the Southwest quadrant of San Antonio) for the past ten years is heavily populated, predominantly Hispanic (not a minority in this city), with a very large concentration of bars and alcohol retailers as well as a very high number of alcohol-related accidents, injuries, fatalities and property damage statistics. A recent study found that the typical person arrested for D.W.I. in Bexar County was an Hispanic single male, 30 years old.
Anyone familiar with the elements of the offense of D.W.I. knows that the person arrested must be driving or operating a motor vehicle. Probable cause for a stop must be present (usually a traffic violation) and the operator must show combined signs and symptoms of intoxication. The operator would be arrested and offered a breath test by a certified intoxilyzer operator. Unless these conditions exist (and the language describing these events tends to be the same or similar), there can be no effective case filed for D.W.I.
Subsequent to these letters, Judge Jimenez asked Officer Heim’s Sergeant if officers in his unit were assigned to work any particular area of town. Judge Jimenez asked his Sergeant why more “northsiders” (San Antonio’s north side has more Anglo concentration) were not seen in his Court. Officer Heim is not responsible for the number of “northsid-ers” appearing or not appearing in Court. The Judge appears to have a problem with racial background of the persons appearing in Court. Officer Heim’s racial background is Anglo so I additionally question whether the Judge has a problem dealing with an Anglo officer arresting non-Anglo’s.
I respectfully request that your Commission investigate Judge Jimenez’ conduct in these matters, and inform me of your findings.
Yours truly,
/s/Barbara Woodward Heim
Barbara Woodward Heim
BWH/gr
cc: San Antonio Police Department Chief
William Gibson
Bexar County District Attorney
Steve Hilbig
*587If it be true that Officer Heim performed his duties in a predominately Hispanic area of San Antonio, we could perhaps take judicial notice of the fact that most D.W.I. contacts and arrests would be as to Hispanic males. Judge Jimenez, in his letter of October 29, states as a fact, “Further, and even more troubling, is the fact that his initial stops appear to be selectively directed against minorities, specifically Hispanic males, who are arrested under the same or similar circumstances.” (emphasis mine.) How, under such circumstances, would Judge Jimenez suggest that Officer Heim do his job? Must Officer Heim cease in arresting Hispanic males?
There is no evidence in the record of civil rights complaints against Officer Heim for the performance of his duties. I can only glean from the evidence before us that Judge Jimenez unilaterally determined without supportive basis, that Officer Heim was guilty of racism and that it was incumbent upon Judge Jimenez to represent all the people in righting this alleged wrong.
Judge Jimenez testified of his personal bias against Officer Heim. This personal bias was further made evident through statements of counsel for Judge Jimenez. “He thought it over, and he came to the conclusion — the conclusion that he was now biased, irreparably biased against Michael Heim, and that he could no longer be fair to the State of Texas and Mr. Heim in his court.”
It is when Judge Jimenez’s personal bias evidenced itself that Judge Jimenez should have backed off and allowed proper authority to take control of the matter. Judge Jimenez did not back off, but continued, more as an attorney representing a cause, than as a judge concerned in avoiding impropriety and the appearance of impropriety in all his actions, as is the prefaced command under Canon 2 of the Code of Judicial Conduct.
Counsel for Judge Jimenez defends his client’s actions as, “He had a public duty to come forward and speak the truth, and that is exactly what the First Amendment and the Texas Constitution protect, and not only protect, but require of him to do as a judge and require in the public’s interest.”
I can but wonder as to the concern Judge Jimenez gave to Officer Heim’s rights under the First Amendment and the Texas Constitution to criticize Judge Jimenez’s decision, if in fact he did, to suppress the evidence in the ease of The State of Texas v. John A. Ramos. When we as judges become so personally involved in matters before us that we elevate our protected rights and freedoms above all others, the system begins to derail. Do judges have greater rights under the First Amendment than other people? Even though Mrs. Heim, in her complaint of January 10,1992, denies on behalf of Officer Heim, the statement alleged by Mr. Trevino to have been made, wouldn’t such comment be protected under the First Amendment to our United States Constitution? Shouldn’t we as judges, diligently seek to protect all individual freedoms of expression even when such views call into question our own decisions? Certainly, if the First Amendment protects the burning of our American Flag, it must be broad enough to protect an individual's questioning of a judge’s decision. When we as judges engage in that personal pursuit of challenging every confirmed or unconfirmed disagreement with our rulings, then no time shall be left for the performance of our intended function.
I would find as a fact from the evidence before us that Judge Jimenez sought to advance his private interest through personal pursuit of that interest in an effort to bring Officer Heim to public disdain and humiliation. I would further find that had Officer Heim openly admitted making the statement testified to by Mr. Trevino, that Judge Jimenez had no cause, no right, no reason and no justification for bringing about community upheaval, simply because his ruling was challenged. It is clear to this writer that Judge Jimenez undertook to personally handle those jobs belonging to other authorities. This is precisely what Canon 2 B seeks to avoid.
The State Commission on Judicial Conduct found that Judge Jimenez had violated Canon 2 B and issued a private admonition. *588Under the facts of this case, the Commission was more than lenient. Since my opinion is minority, I find no need to express the sanction which I would impose against Judge Jimenez.
My closing concern is for the message sent forth by the majority’s opinion. The message is that if we as judges do not like what someone thinks or allegedly thinks of our decisions and opinions, we may then engage in our own personal vendetta against that person to any limit we so desire. Furthermore, we need not concern ourselves with due process in so doing.
We can only speculate as to the effect of Judge Jimenez’s loosely used words like racism and dishonesty may have, not only upon Officer Heim as he drives the streets of San Antonio but also upon other law enforcement officers. When a judge makes public accusations of racism, such accusation carries the weight of Judicial Declaration, and to many it carries the weight of Law. It is not Judge Jimenez who must now go forth onto the highways, the by-ways, the streets and dark alleys of San Antonio, wearing the label “dishonest — racist.” No, Judge Jimenez may sit comfortably and safely behind bench or in chambers evaluating the conduct of law enforcement officers in the performance of their duties.
In today’s society the mere word racism carries a highly volatile stigma. Too many times its use is for public affect rather than depiction of truth. We as Judges, above all others must use extreme care and caution before using labels of such destructive potential.
Last but not least, judges must not advance their private interest in causes for we see before us the result.
It is saddening to think that all this might have been avoided by a telephone call from Judge Jimenez to Officer Heim asking him to drop by and discuss the ruling. Is there room for humility in the Judiciary?