Dianne Hensley v. State Commission on Judicial Conduct

Supreme Court of Texas
══════════
No. 22-1145
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Dianne Hensley,
Petitioner,

v.

State Commission on Judicial Conduct et al.,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════

JUSTICE BLACKLOCK, joined by Justice Devine, concurring.

We could have all but ended this regrettable case today. We
should have done so by holding that the Judicial Conduct Commission
lacks the lawful authority to sanction Judge Hensley or any other Texas
judge who politely declines to perform same-sex marriages but
respectfully refers same-sex couples to a nearby officiant who will gladly
do so. Judge Hensley’s eminently reasonable policy honored her
personal convictions and showed courtesy to same-sex couples, who the
U.S. Supreme Court has said are entitled to a marriage—not to a
particular marriage officiant, and especially not to an officiant with
religious objections to participating in the ceremony.
Judge Hensley’s actions were not unethical, unconstitutional, or
illegal in any way. Politely declining to participate in a same-sex
wedding for religious reasons does not demonstrate bias or prejudice
against gay people. Nor does it demonstrate an inability to impartially
judge their lawsuits. Of course, rudely or derisively declining to
participate in a same-sex wedding might demonstrate bias, but rude and
derisive treatment of anyone is conduct beneath a judge. There is no
allegation that Judge Hensley was ever anything other than polite,
respectful, and forthright with the same-sex couples who crossed her
path. Nor is there an allegation that any of those couples ever had any
trouble obtaining a marriage because of Judge Hensley’s policy.
In fact, the record contains no indication that any same-sex couple
ever complained to anyone about Judge Hensley’s respectful but
principled treatment of them. And that is to their credit. By all
accounts, these couples were treated courteously by Judge Hensley and
her staff, and they were politely directed down the street to another
officiant happy to perform their marriage. Judge Hensley even arranged
for nearby private wedding officiants to charge the cheaper government
rate to the same-sex couples she referred. Imagine a couple in that
situation trying to coerce the courteous and helpful Christian judge to
violate her convictions for their convenience, when other local officiants
are happy to accommodate. What purpose could that possibly serve—
other than to prove that adherents to the old orthodoxy will be made to
bend the knee to the new one? I find it encouraging that we have no
indication any same-sex couple even considered handling the situation
that way. What decent person would? Judge Hensley treated them

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respectfully. They got married nearby. They went about their lives.
Judge Hensley went back to work, her Christian conscience clean, her
knees bent only to her God. Sounds like a win-win.
Indeed, it sounds just like what the Fifth Circuit envisioned,
when it directed Texas to provide same-sex marriages because of
Obergefell v. Hodges but cautioned that “controversies involving the
intersection of” the ancient rights of religious freedom and free speech
and the new right of same-sex marriage were not resolved by Obergefell
but instead remained open to “the robust operation of our system of laws
and the good faith of those who are impacted by them.” De Leon v.
Abbott, 791 F.3d 619, 625 (5th Cir. 2015) (following Obergefell v. Hodges,
576 U.S. 644 (2015)). By all accounts, Judge Hensley and the same-sex
couples of the Waco area navigated the intersection of their rights just
as we would expect of responsible adults in a heterogenous society.
Before this case became a public spectacle, the real people in Waco
actually impacted by the intersection of their potentially conflicting
rights admirably treated each other with respect and good faith, just as
the Fifth Circuit hoped. So far, so good.
Enter the Texas Judicial Conduct Commission. Apparently after
combing the newspapers for juicy targets, the Commission decided, on
its own initiative, to subject Judge Hensley to a lengthy private
inquisition and then to publicly humiliate her. It claimed that her
marriage-referral policy “cast[s] doubt on her capacity to act impartially
to persons appearing before her as a judge due to the person’s sexual
orientation”—even though she offered to immediately recuse herself if
litigants in her court ever thought she might not treat them fairly

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because of her marriage policy (there is no indication any litigant ever
did).
Several years later, here we are. There are no victims. There was
no crime. We have a Christian justice of the peace in a small Texas city
doing her best to navigate her duties to God and to the public. We have
no real people even claiming to be harmed by her actions. We certainly
have no same-sex couples denied a marriage—or anything even close to
that. There is no good reason for this case to exist.
But it does exist. It exists because of the Judicial Conduct
Commission, which veered far outside its proper lane by self-initiating
this victimless but politically and emotionally charged case. The
Commission misinterpreted the Code of Judicial Conduct and violated
Judge Hensley’s religious-freedom rights by publicly sanctioning her
and by continuing to hold over her head the threat of a future, harsher
sanction should she resume her marriage-referral policy. To her credit,
Judge Hensley did not capitulate. And for the last several years, the
Commission has doubled down again and again on this misbegotten
case, all the way to the Texas Supreme Court.
The irony is this. By going out of its way to take sides in a
contentious moral and political debate about conflicts between the right
to same-sex marriage created by Obergefell and the rights of religious
dissenters long enshrined in our founding documents—an ongoing
debate that Obergefell itself acknowledged would continue—the
Commission has done far more, in the eyes of many Texans, to
undermine public confidence in Texas’s judicial branch than a lone
justice of the peace in Waco ever could. It is too bad this case does not

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end today. But it will end some day, and if Judge Hensley sticks to her
guns, I am confident the Commission will lose.
***
I agree with the Court that Judge Hensley’s claims may go
forward as a procedural matter. In addition to the procedural questions
the Court resolves, the parties have also presented for our decision the
substantive question of whether the Commission’s actions violated
Hensley’s legal rights. The Court remands the case for the lower courts
to answer the merits questions. I would instead resolve them now, as
we often do when deciding appeals of jurisdictional rulings in similar
procedural postures. The Commission’s actions did violate Hensley’s
legal rights, and the procedural quirks of this case do not prevent this
Court from saving everyone a lot of time and trouble by saying so now.
When a plaintiff’s ultra vires claim against government officials
is dismissed on jurisdictional grounds, as happened below, appellate
courts commonly address the merits of the parties’ competing
interpretations of the law in order to determine whether the plaintiff
has stated a valid claim sufficient to bypass the government’s immunity.
See, e.g., Phillips v. McNeill, 635 S.W.3d 620, 631 (Tex. 2021) (“We also
hold that . . . the Inspector General’s failure to provide the hearing was
ultra vires and thus not shielded by sovereign immunity. Accordingly,
the trial court erred in granting the plea to the jurisdiction.”); Hall v.
McRaven, 508 S.W.3d 232, 243 (Tex. 2017) (holding that an ultra vires
claim was properly dismissed on sovereign immunity grounds after
examining the merits of the claim); Hous. Belt & Terminal Ry. v. City of
Houston, 487 S.W.3d 154, 169 (Tex. 2016) (reversing dismissal of an

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ultra vires claim on governmental immunity grounds after examining
the merits of the claim).
This case is eligible for the same treatment. 1 Judge Hensley’s
Second Amended Petition invokes “the ultra vires doctrine recognized in
City of El Paso v. Heinrich” and seeks “an injunction that will prevent
the Commissioners from investigating or sanctioning judges or justices
of the peace who recuse themselves from officiating at same-sex
weddings on account of their sincere religious beliefs.” The question, at
this stage of the case, is whether the courts have jurisdiction over this
claim for prospective relief. Whether the courts have jurisdiction over
the claim depends, in part, on whether Hensley’s petition alleges
threatened actions by the Commissioners that are truly ultra vires—
that is, truly outside the Commissioners’ authority. See
Chambers–Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339,
344–45 (Tex. 2019). The Commissioners’ plea to the jurisdiction, from
which this appeal arises, raised this merits issue by arguing that
Hensley’s ultra vires claims do not allege any ultra vires conduct by the
Commissioners. In similar circumstances, we often take the opportunity
in appeals like this one to answer disputed merits questions about the
legality of the government’s actions. See, e.g., Phillips, 635 S.W.3d

1 By my reading of the parties’ pleadings in the district court and the

way this appeal has been postured, there are likely multiple pathways by
which the Court could validly address the merits of some or all of Hensley’s
claims if it chose to do so. I focus on the ultra vires claim because, at least in
my mind, it provides the simplest and most well-worn avenue.

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at 631; McRaven, 508 S.W.3d at 243; Hous. Belt & Terminal Ry.,
487 S.W.3d at 169; Chambers–Liberty Cntys., 575 S.W.3d at 354–55. 2 F

The Court declines to do so here, even though both sides
adequately briefed the merits and we could expedite the case’s
resolution by addressing them. I disagree with that choice, although I
do not think the Court errs, as a formal matter, by declining to reach the
merits. The court of appeals did not reach the merits because it ruled
against Hensley on purely procedural grounds, and this Court always
has the prerogative to decline to reach questions the court of appeals has
not yet reached. Whether to reach the merits today is ultimately a
prudential question, so the Court’s reticence is not legally erroneous or
altogether unjustifiable, although I disagree with it. As I see it,
prudence dictates moving this case along. The merits are adequately

2 The Commission argues that the ultra vires claims fail for the
additional reason that section 33.006 of the Government Code grants
“immunity from liability” to the Commissioners that is “absolute and
unqualified.” TEX. GOV’T CODE § 33.006. If this argument were correct, then
we would not need to reach the merits of the ultra vires claims. In my view, it
is not correct. As we said in City of El Paso v. Heinrich and have repeated since
then, the use in ultra vires claims of nominal defendants in their official
capacity as stand-ins for the governmental entity is merely a “technical
matter,” because “the suit is, for all practical purposes, against the state.”
284 S.W.3d 366, 372–73 (Tex. 2009); see also Chambers–Liberty Cntys.,
575 S.W.3d at 348–49. Although the Commissioners are nominal defendants,
they face no genuine personal liability by virtue of this litigation, so
section 33.006 does not apply. Yet even if I am wrong about section 33.006,
then as indicated above, other procedural avenues available to the Court make
it possible to address the merits now, including through the TRFRA claim
against the Commission itself. I do not analyze those avenues in detail
because, in my mind, the ultra vires claim provides a valid basis to reach the
merits.

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presented, the case has already been pending for many years, and it may
remain pending for many more years given today’s disposition.
Also relevant to the prudential question is the constitutional
relationship between this Court and the Judicial Conduct Commission.
For several reasons, this Court is uniquely suited to the task of
repudiating the Commission’s incorrect interpretation of the Code of
Judicial Conduct. To begin with, this Court promulgates the very Code
that the Commission erroneously thought Judge Hensley violated. We
also appoint several members of the Commission. When the
Commission attempts to impose sanctions stronger than a slap on the
wrist, such as suspension from office or removal, this Court has the final
say. TEX. CONST. art. V, § 1-a(9). And, as the Court correctly holds
today, in some circumstances judges threatened unlawfully by the
Commission can seek redress through civil lawsuits, which likewise
terminate at this Court. Thus, in multiple ways, our legal system gives
this Court—not the Judicial Conduct Commission or lower courts—the
final say on questions of judicial ethics.
We could have had the final say in Judge Hensley’s case today.
Perhaps another day will come—although the better course after today
would be for the Commission to voluntarily rescind its warning of Judge
Hensley and renounce its erroneous view that her marriage-referral
policy violates the Code of Judicial Conduct.
***
As an initial matter, the Commission is not protected from ultra
vires suits merely because the Commissioners have some discretion to
interpret and apply the Code of Judicial Conduct. “The fact that the

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official has some limited discretion to act under the applicable law does
not preclude an ultra vires claim if the claimant alleges that the official
exceeded the bounds of that authority, or the conduct conflicts with the
law itself.” Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54, 68
(Tex. 2018). The Judicial Conduct Commission has no more discretion
to apply the Code of Judicial Conduct incorrectly than the Comptroller
has to apply the Tax Code incorrectly. Both are constitutional offices
charged with interpreting and applying a legal code. But neither has
absolute discretion to apply its legal code just any way it chooses, and
neither is immune from judicial review of its compliance with the legal
code it administers. Nor does the Judicial Conduct Commission have
discretion to violate the Texas Constitution, the U.S. Constitution, or
the Texas Religious Freedom Restoration Act (TRFRA)—all of which
Hensley alleges were violated by the Commission’s past actions and
threatened future actions. 3
Turning to whether Hensley alleged genuinely ultra vires acts—
that is, whether the Commission’s treatment of her conflicts with the
law and is therefore outside the Commission’s authority—the principal
reason Hensley succeeds is simple: Her courteous marriage-referral
policy does not violate the Texas Code of Judicial Conduct. Politely
declining to participate in a same-sex wedding for religious reasons does
not demonstrate bias or prejudice against gay people. Nor does it

3See TEX. CODE JUD. CONDUCT, Canon 8A, reprinted in TEX. GOV’T
CODE ANN., tit. 2, subtit. G, app. B (“The Sections are rules of reason, which
should be applied consistent with constitutional requirements, statutes, other
court rules and decisional law and in the context of all relevant
circumstances.”).

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demonstrate an inability to impartially preside over their lawsuits.
Likewise, publicly confessing traditional Christian beliefs about
marriage and sexuality does not demonstrate bias or prejudice against
gay people or demonstrate an inability to impartially preside over their
lawsuits.
The Commission tries to make much of the fact that Judge
Hensley publicly stated the religious reasons for her marriage-referral
policy in response to inquiries from the Waco newspaper. Of course,
Judge Hensley is correct that judges—particularly elected judges—are
not divested of their free-speech rights when they put on the robe. See
Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002). But more
to the point, everybody already knows—particularly outside Texas’s big
cities—that many, many judges and other local public officials hold
traditional Christian religious beliefs about marriage. And everybody
already knows that the reason so many of their local judges stopped
performing all marriages after Obergefell is because the judges, for
religious reasons, feared being compelled to perform same-sex
marriages.
The public’s knowledge of a judge’s traditional Christian beliefs—
commonplace knowledge in small cities and towns throughout Texas—
does not reasonably undermine public confidence in the judiciary or cast
reasonable doubt on the judge’s impartiality, any more than would
public knowledge that the judge is an atheist. Yes, there are plenty of
people who would have less confidence in a judge they know to hold
traditional Christian beliefs about marriage. This is Texas, so there are
at least as many people who would have less confidence in a judge they

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know to be an atheist. The Code of Judicial Conduct is not concerned
with any of that. It is concerned with judicial behavior that objectively
casts reasonable doubt on a judge’s capacity to decide lawsuits
impartially—not with behavior that merely causes some people,
subjectively, to question the judge’s partiality. 4
It therefore does not matter that there are many people whose
own biases predispose them to question a judge’s impartiality once they
know the judge’s religious views. What matters is whether the judge
objectively demonstrates an inability to set aside his personal views
when necessary to properly perform the judicial function, which is to
decide lawsuits impartially based on the law. There is zero evidence of
any such failing on Judge Hensley’s part.
Imagine a world in which Judge Hensley’s public declaration of
her faith does cast reasonable doubt on her capacity to act impartially
because it causes some people to assume she will not treat gay people
fairly in her courtroom. Does not my public alignment with the
Republican Party cause some people to assume I will not treat
Democrats fairly? It should not, but we all know that for some people it
does. Particularly in a state with judicial elections, judges will always
be publicly affiliated in one way or another with various viewpoints
many people find distasteful. Judge Hensley respectfully and
forthrightly explained her marriage-referral policy—itself quite
respectful—to the local media so people in her community could

4 TEX. CODE JUD. CONDUCT, Canon 4A (“A judge shall conduct all of the

judge’s extra-judicial activities so that they do not: (1) cast reasonable doubt
on the judge’s capacity to act impartially as a judge; or (2) interfere with the
proper performance of judicial duties.”).

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understand the reason for her actions. Whether she had done so or not,
everyone already knows that a sizeable percentage of the nearly 3,000
judges in Texas have the same Christian beliefs Judge Hensley does. If
anyone suspects Judge Hensley of lacking impartiality because of what
she said—or if anyone suspects any other judge of lacking impartiality
because of what he personally believes about marriage—they do so
without a reasonable basis, and their unreasonable suspicions are
irrelevant to the proper application of the Code of Judicial Conduct.
In sum, nothing Judge Hensley did or said cast reasonable doubt
on her capacity to act impartially as a judge or gave the people of
McLennan County a reasonable basis to suspect her of bias or prejudice.
As a matter of law, she did not violate the Texas Code of Judicial
Conduct. 5 The Judicial Conduct Commission has no more authority to

5 Usually, judicial review of the Commission’s interpretation of the Code

of Judicial Conduct will take place through the procedures contained in the
Government Code and the Constitution, by which sanctioned judges may seek
redress in the courts. TEX. GOV’T CODE § 33.034 (authorizing a “special court
of review” to review certain minor sanctions); TEX. CONST. art. V, § 1-a(9)
(permitting review by this Court of a “review tribunal” decision in cases of
removal from the bench). But in some cases, like Hensley’s, the ongoing threat
of further sanction hanging over the judge’s head due to the Commission’s
unlawful position is a cognizable injury that can be remedied by a civil lawsuit
initiated by the judge. As the Court holds, a judge cannot use a civil lawsuit
to collaterally attack a prior sanction he has chosen not to administratively
appeal, but he can use a civil lawsuit to attack the Commission’s erroneous
view of the law if pursuing the prior administrative appeal would not
necessarily have alleviated the ongoing threat to the judge posed by the
Commission’s error. Ante at 21. In other words, a judge in Hensley’s situation
need not reinstate her marriage-referral policy in defiance of the Commission’s
warning, wait for the Commission to impose an even greater sanction, and then
appeal that sanction to the courts. She can instead seek to establish her rights
through a civil lawsuit like this one, which seeks prospective relief from the
threat of future sanction. And, because her religious-freedom rights are

12
sanction judges for non-violations of the Code of Judicial Conduct than
the Comptroller has to penalize taxpayers for non-violations of the Tax
Code. The Commission exceeded its lawful authority, both by publicly
warning Judge Hensley for non-violations of the Code and by continuing
to hold over her the threat of future sanction should she resume her
lawful and reasonable marriage-referral policy. For these reasons, I
would hold that Judge Hensley has stated a valid ultra vires claim
against the Commissioners. 6
***
Obergefell gave same-sex couples a right to marriage. It did not
give same-sex couples a right to coerce a judge with religious objections
to officiate same-sex weddings. Nor did it give the Texas Judicial
Conduct Commission the right to punish a Christian judge who politely
directs same-sex couples down the street. Obergefell affected the legal
landscape in many ways, but it did not change the Texas Code of Judicial
Conduct. This Court, not the United States Supreme Court,
promulgates and interprets the Texas Code of Judicial Conduct.

implicated, Judge Hensley may also pursue a TRFRA claim, by which the
Legislature has authorized both retrospective and prospective relief that was
not available in the administrative appeal Judge Hensley decided not to
pursue. See TEX. CIV. PRAC. & REM. CODE §§ 110.001–.012.
6 If Judge Hensley’s actions do not violate the Code of Judicial Conduct

at all, then her other claims will either succeed a fortiori or become
unnecessary. With respect to the TRFRA claim, there is no genuine question
that the Commission’s actions substantially burdened Judge Hensley’s free
exercise of religion. See TEX. CIV. PRAC. & REM. CODE § 110.003(a). The
contested question is whether the Commission did so “in furtherance of a
compelling governmental interest.” Id. § 110.003(b)(1). There is obviously no
compelling governmental interest in misapplying the Code of Judicial Conduct.

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Obergefell did not change what it means for a judge in Texas to “cast
reasonable doubt on the judge’s capacity to act impartially as a judge.”
Politely declining to participate in a same-sex couple’s intimate
ceremony after Obergefell is no more a violation of the Texas Code of
Judicial Conduct than was politely declining to participate in such a
ceremony before Obergefell. Likewise, both before and after Obergefell,
a judge’s public display of hostility toward any category of litigant,
including gay people, could cast reasonable doubt on his impartiality in
violation of the Code. Nothing of that sort is even remotely alleged
against Judge Hensley. 7
If a policy like Judge Hensley’s had the practical effect of denying
same-sex couples reasonable access to a marriage, which never
happened in Waco, then the policy might very well pose a problem under
Obergefell. But Obergefell itself acknowledges its potential to cause
friction with pre-existing, far more deeply rooted constitutional
principles like religious liberty and the freedom of speech. 576 U.S.
at 679–80. The Fifth Circuit eloquently elaborated on that potential in
De Leon v. Abbott, which is just as binding on the State of Texas as
Obergefell (actually even more so, since Texas is subject to the judgment
in De Leon but was not a party in Obergefell). De Leon, 791 F.3d at 625
(“We express no view on how controversies involving the intersection of
these rights should be resolved but instead leave that to the robust
operation of our system of laws and the good faith of those who are
impacted by them.”).

7 Just as Obergefell did not alter the Texas Code of Judicial Conduct,

neither did Bostock v. Clayton County, 590 U.S. 644 (2020).

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If the Judicial Conduct Commission is correct—that is, if
Obergefell ushered in an era in which judges who publicly espouse
traditional Christian beliefs are unfit for the robe—then yet another
deeply rooted constitutional principle comes into view. “No religious test
shall ever be required as a qualification to any office, or public trust, in
this State; nor shall any one be excluded from holding office on account
of his religious sentiments . . . .” 8 TEX. CONST. art. I, § 4. Judge Hensley
has been the target of a punitive administrative apparatus with the
power, ultimately, to exclude her from holding office. This has happened
“on account of [her] religious sentiments”—not on account of rude or
insulting or unprofessional words or actions towards anybody of any
sexual orientation.
Like the foundational rights of free speech and religious liberty,
the constitutional prohibition on religious tests for office is yet another
ancient pillar of our law with roots far deeper than same-sex marriage. 9

8 The ellipses are a courtesy to our friend from earlier, the atheist judge.

Supra at 10–11. The entire provision reads: “No religious test shall ever be
required as a qualification to any office, or public trust, in this State; nor shall
any one be excluded from holding office on account of his religious sentiments,
provided he acknowledge the existence of a Supreme Being.” (emphasis added).
9 Compare Sir Edward Coke, Speaker of the Parliament of England,

Three Petitions to the Queen in the House of Commons (Feb. 22, 1593),
reprinted in 3 THE SELECTED WRITINGS AND SPEECHES OF SIR EDWARD COKE 7
(Steve Sheppard ed., 2003), https://oll-resources.s3.us-east-2.amazonaws.com/
oll3/store/titles/913/Coke_0462-03_EBk_v6.0.pdf (“Now am I to make unto
your maj. 3 Petitions, in the name of the Commons; 1st, That Liberty of Speech,
and Freedom from arrests, according to the ancient custom of parl. be granted
to your subjects . . . .”); and RHODE ISLAND ROYAL CHARTER (1663), transcribed
by RHODE ISLAND STATE ARCHIVES, https://docs.sos.ri.gov/documents/civics
andeducation/teacherresources/RI-Charter-annotated.pdf (“Have therefore
thought fit, and do hereby publish, grant, ordain and declare, that our royal

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And, like free speech and religious liberty, the ban on religious tests can
be undermined by unduly aggressive interpretations of the right to
same-sex marriage announced in Obergefell. As the Fifth Circuit
counseled, many conflicts between these principles can be respectfully
resolved through “the good faith of those who are impacted by them,” as
Judge Hensley tried to do. De Leon, 791 F.3d at 625. Because of the
Judicial Conduct Commission’s ill-advised interference, this particular
conflict must now be resolved in court. It should be resolved in Judge
Hensley’s favor.
I respectfully concur.

James D. Blacklock
Justice

OPINION FILED: June 28, 2024

will and pleasure is, that no person within the said colony, at any time
hereafter shall be any wise molested, punished, disquieted, or called in
question, for any differences in opinion in matters of religion, and do not
actually disturb the civil peace of our said colony; but that all and every person
and persons may, from time to time, and at all times hereafter, freely and fully
have and enjoy his and their own judgments and consciences, in matters of
religious concernments . . . .”); and U.S. CONST. art. VI, cl. 3 (1788) (“[N]o
religious Test shall ever be required as a Qualification to any Office or public
Trust under the United States.”); and U.S. CONST. amend. I (1791); and TEX.
CONST. art. I, §§ 4, 6, 8 (1876); with Obergefell, 576 U.S. at 681 (decreeing a
right to same-sex marriage in 2015).

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