March 29, 2011

State Commission on Judicial Conduct

P.O. Box 12265
Austin TX 78711

Judge Sherman Ross

Presiding Judge of the County Criminal Courts
Harris County Criminal Court at Law No. 10
Harris County Criminal Justice Center
1201 Franklin – 10th Floor
Houston TX 77002-1900
Via Fax: (713) 368-9265

Re: Harris County Criminal Court at Law No. 4 Judge John Clinton

Dear State Commission on Judicial Conduct and Judge Ross:

We write on behalf of the American Civil Liberties Union (ACLU) Foundation of Texas.
The ACLU is a nation-wide, non-profit, nonpartisan organization with over 500,000 members
dedicated to the defense of constitutional rights and civil liberties. The ACLU of Texas is the
state affiliate of the national organization, with over 12,000 supporters and members across the
state and offices in Houston, Austin, and Brownsville.

We write in reference to Harris County Criminal Court at Law Judge John Clinton, who
has presided over Harris County Criminal Court No. 4 since January 1, 2011. In this capacity,
Judge Clinton presides over one of Harris County’s fifteen county criminal courts at law with
countywide jurisdiction over serious misdemeanor cases such as driving while intoxicated,
domestic violence, illegal possession of drugs, criminal pollution, and theft.

The ACLU of Texas was recently advised that Judge Clinton may have been abusing the
power of his office to coerce individuals appearing in front of him into reviewing sectarian

PO BOX 12905 · Austin, Texas 78711-2905 · 512/478-7300 · Fax 512/478-7303

E-mail: info@aclutx.org · www.aclutx.org
religious materials and accepting or endorsing Judge Clinton’s religious viewpoint as a condition
of probation. Accordingly, we write to bring these allegations to your attention and to request an
immediate investigation and, should the allegations be substantiated, prompt action.

I. Allegations

Specifically, it is our understanding that Judge Clinton has been requiring or encouraging
probationers in his court to complete Bible study exercises and reading assignments from “The
Heart of the Problem” by Henry Brandt and Kerry L. Skinner. “The Heart of the Problem” is a
Bible study book that proselytizes Christianity and advocates turning to God to solve problems.
According to the book’s website, www.heartoftheproblem.com, “The Heart of the Problem” is a
“Group Bible study guide” dedicated to the principle that:

The origin of all problems–family, finances, career, relationships – can all be traced
back to a single source: life-dominating sin. No human remedy can cure it. But
everyone can find victory over sin in the Word of God…. based on two biblical
principles remarkable in their simplicity:
1. There is no human remedy for sin.
2. The only cure for sin is in Christ.
Christ cleanses sin and invites you to walk in the Spirit. The antidote to sinful living
is clear and abundant in God's Word. 1

The ACLU has been told that Judge Clinton has discussed his personal religious beliefs in court
and pointedly asked probationers in his court about their religious beliefs and church attendance,
including specifically asking defendants if they believe in Jesus Christ and believe that Jesus
Christ is their personal lord and savior. It our understanding that Judge Clinton has included
religious assignments in probation terms and waived community service requirements for
probationers who complete religious assignments. Finally, it is our understanding that
probationers appearing before Judge Clinton have been exhorted by him in open court to
“follow through” with the teachings in the Bible study book and been required to meet with
Judge Clinton in his chambers to discuss the Bible study book’s impact on the probationer’s life.

1
http://heartoftheproblem.com/ (visited March 28, 2011).
2
PO BOX 12905 · Austin, Texas 78711-2905 · 512/478-7300 · Fax 512/478-7303
E-mail: info@aclutx.org · www.aclutx.org
 II. Legal Analysis

If the allegations are substantiated, Judge Clinton’s actions would be in violation of the
Establishment Clause of the First Amendment to the United States Constitution. The three-part
test enunciated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971) is used to
evaluate Establishment Clause violations, and asks whether an action by the state (1) has a
secular purpose, (2) neither advances nor inhibits religion, and (3) does not result in an
“excessive government entanglement” with religion. The action must satisfy all three prongs in
order to be constitutional.

Requiring probationers to read “The Heart of the Problem” as a condition of probation

clearly violates the Lemon test. It is axiomatic that a self-described “adult Bible study
curriculum” does not have a secular purpose. Although Judge Clinton has reportedly claimed
that his intent was merely to help probationers improve their lives, the book’s message, coupled
with Judge Clinton’s discussions about Jesus Christ and Christianity, clearly have the effect of
advancing religion. Finally, discussion of the judge’s and defendants’ religious beliefs in the
setting of a criminal proceeding in the courtroom, asking probationers whether they have a
relationship with Jesus, and requiring them to read and complete the exercises in “The Heart of
the Problem” all foster excessive government entanglement with religion. Accordingly, Judge
Clinton’s actions as alleged here fail the second and third prongs of the Lemon test and are thus
in violation of the First Amendment.

In Warner v. Orange County Department of Probation, a case directly on point, the Court
of Appeals for the Second Circuit held that ordering a defendant on probation to attend a
recovery program with significant religious content violates the defendant’s constitutional rights.
115 F.3d 1068, 1074 (2nd Cir. 1997) (“The Supreme Court has repeatedly made clear that at a
minimum, the Constitution guarantees that government may not coerce anyone to support or
participate in religion or its exercise, or otherwise act in a way which establishes a state religion
or religious faith, or tends to do so.”) (quotation marks and citations omitted).

In Kerr v. Farrey, 95 F. 3d 472 (7th Cir. 1996), the Seventh Circuit Court of Appeals
articulated a three-part test applicable to any state action which conditions an individual‘s
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PO BOX 12905 · Austin, Texas 78711-2905 · 512/478-7300 · Fax 512/478-7303
E-mail: info@aclutx.org · www.aclutx.org
freedom on his participation in religious activities. The Kerr test asks if (1) the state has acted,
(2) the action amounts to coercion, and (3) the object of the action is religious or secular. Kerr
concerned an inmate who was required to attend substance abuse counseling based on the
Twelve Step Recovery Program, which includes embracing a “a religious concept of a Higher
Power.” Id. at 474; 479-80. The penalty for not attending the counseling was classification at a
higher security risk and negative implications on parole eligibility. Id. at 474. The Seventh
Circuit found that these actions amounted to the state impermissibly coercing religious
participation in violation of the Establishment Clause of the First Amendment. Id. at 474. See
also Inouye v. Kemna, 504 F.3d 705, 714-716 (9th Cir. 2007) (parole office who required parolee
to attend AA meetings as condition of parole was not entitled to qualified immunity because “the
vastly overwhelming weight of authority” clearly established that conditioning freedom on
coerced participation in religious program violates First Amendment).

It is indisputable that the state –through Judge Clinton – acts in setting probation
conditions. Because probation conditions carry the weight and threat of incarceration behind
them if they are not met, Judge Clinton’s actions as alleged are coercive. Finally, the object of
Judge Clinton’s courtroom proselytizing, including the assigned reading of “The Heart of the
Problem” Bible study curriculum, is clearly to convey a Christian message and requires biblical
study and religious exercises. Because requiring probationers to read this Bible study book is a
coercive state action with a religious object, Judge Clinton’s alleged conduct violates the
Establishment Clause. Furthermore, Judge Clinton specifically asked defendants if they believed
in Jesus Christ and if Jesus Christ was their personal lord and savior. Defendants were also
encouraged to “follow through” with the religious teachings in the Bible study book. These
actions cannot be classified as anything other than religious. Judge Clinton’s actions
impermissibly coerced defendants in his court to not only discuss their own personal religious
beliefs but also to participate in religious activities via The Heart of the Problem exercises.

III. Texas Code of Judicial Conduct

Finally, Judge Clinton’s actions may violate the Texas Code of Judicial Conduct. Canon
3(B)(6) of the Texas Code of Judicial Conduct states that “[a] judge shall not, in the performance
of judicial duties, by words or conduct manifest bias or prejudice…based upon …religion…and
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PO BOX 12905 · Austin, Texas 78711-2905 · 512/478-7300 · Fax 512/478-7303
E-mail: info@aclutx.org · www.aclutx.org
shall not knowingly permit staff, court officials and others subject to the judge’s direction and
control to do so.” The allegations would also run afoul of Canon 2(A) (“[a] judge shall comply
with the law and should act at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary”) and of Canon 3(B)(2) (“[a] judge should be faithful to
the law and shall maintain professional competence in it.”). All Harris County Criminal Court
staff are required to comply with the Code of Judicial Conduct. See Harris County Criminal
Court at Law, Rules of Court No. 19. 2

IV. Conclusion

If the allegations as reported to us are true, they amount to a very serious violation of the
rights of defendants appearing before Judge Clinton. We urge the Commission to conduct an
immediate investigation into these allegations and take prompt corrective action if they are
substantiated. Please do not hesitate to contact me via telephone at (512) 478-7300 x 116 or via
email at lgraybill@aclutx.org should you have any questions or concerns.

Respectfully submitted,

Lisa Graybill
Legal Director
ACLU of Texas

2
Rule No. 19 provides that
All persons employed by the county criminal courts at law in any capacity shall, within the first thirty days
of employment, be apprised of the contents of the Code of Judicial Conduct by the court manager, or by the
staff attorney at the direction of the court manager, as the Code applies to the affected employee. The
employee shall have an opportunity to ask appropriate questions related to the intent and meaning of the
Code. When the meaning and intent of the Code of Judicial Conduct is understood by the employee, the
acknowledgment on the following page shall be executed and signed with at least one witness present. The
completed acknowledgment shall be filed in the employee's personnel file folder, and a copy shall be
retained by the employee (see form at Policies and Procedures, Appendix, Page A-8)

Harris County Criminal Court at Law, Rules of Court No. 19, available on-line at
http://www.ccl.hctx.net/attorneys/rules/rules.pdf (last visited March 28, 2011).
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PO BOX 12905 · Austin, Texas 78711-2905 · 512/478-7300 · Fax 512/478-7303
E-mail: info@aclutx.org · www.aclutx.org