Advisory Opinions On Judicial Ethics 11-20

SELLING TICKETS

Opinion No. 11 (1976)

QUESTION: Is the selling of tickets for various fund-raising activities prohibited by Canon 5B(2)* ("A Judge should not solicit funds for any educational, religious, charitable. . . .")?

ANSWER: Canon 5B(2),* forbidding the solicitation of funds or the use of the prestige of his office for that purpose, includes "the selling of tickets for various fund-raising activities" and the answer to the question is in the affirmative.

________________

*Now see Canon 4C(2).

RECUSAL BY JUDGE

Opinion No. 12 (1976)

QUESTION: A lawyer who is now a district judge borrowed money from A, executing his promissory note payable over a period of four years; prior to maturity, A was shot and killed by B who was found to be mentally incompetent to stand trial and was committed to a mental hospital; the lawyer, now the district judge, paid A's widow the loan balance but made another loan from her which has since been repaid. B has now been returned to the court for trial. Is the district judge disqualified to preside at any judicial proceedings involving B?

ANSWER: The Code of Judicial Conduct does not contain a specific answer to the question presented. A judge should bear in mind the provisions of Canon 3C(1)* and should recuse himself from any pending matter if he knows or has reason to believe that "his impartiality might reasonably be questioned."

_______________

*Now see Rules 18a and 18b, Texas Rules of Civil Procedure.

POLITICAL ACTIVITIES

Opinion No. 13 (1976)

QUESTION: May a district judge introduce a candidate for the state Legislature to his personal friends and recommend that such friends vote for such candidate?

ANSWER: The Committee on Judicial Ethics is of the opinion that the question should be answered in the affirmative. In Opinion Number 2 this Committee held that a Texas judge would not violate the Code of Judicial Conduct by privately introducing candidates for judicial office to his friends and recommending that such friends vote for such candidates. The Committee now reaffirms that opinion and extends its scope so that henceforth it will be applicable to all candidates for public office.

POLITICAL ACTIVITY

Opinion No. 14 (1976)

QUESTION: Whether or not a district judge is in violation of the Code of Judicial Conduct by meeting with and privately discussing political issues and political campaign strategy with a candidate for elective public office other than his own.

ANSWER: It is the opinion of the Committee on Judicial Ethics that the conduct inquired about in the question amounts to "other political activity" contrary to Canon 7A(4). The essence of Canon 7 is to prevent judges from engaging in political activity other than that which is necessary and appropriate for their own election.

_______________

*Now see Canon 5

RETIRED JUDGE

Opinion No. 15 (1976)

QUESTION: Question concerning the applicability of the Code of Judicial Conduct to retired judges who are eligible for recall to judicial service and to retired judges who are not subject to recall.

ANSWER: A retired judge who is eligible for recall to judicial service should refrain from judicial service during the period of an extra-judicial appointment not sanctioned by Canon 5G.* A retired judge who is not subject to recall for judicial service is excused from compliance with Canon 5G.* [NOTE: Canon 5G* provides: Extra-judicial Appointments. A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice.]

_________________

*Now see Canon 4H.

TV AUCTIONEER

Opinion No. 16 (1976)

QUESTION: Would it be unethical for a judge to participate as a "celebrity auctioneer" on a television "telethon auction" to raise funds for a non-profit public educational television station where all he does is describe the article to be sold and asks that bids be telephoned to the TV station personnel?

ANSWER: Such activity upon the part of a judge would be a violation of Canon 5B(2)* of the Code of Judicial Conduct in that it would amount to the solicitation of funds in a manner prohibited by such canon.

_______________

*Now see Canon 4C(2).

SERVICE, BAR GRIEVANCE COMMITTEE

Opinion No. 17 (1976)

QUESTION: May a member of the State Bar Grievance Committee continue to serve in such a capacity after his election and qualification as a judge of a court of record?

ANSWER: Such activity upon the part of a judge of a court of record would be contrary to the proscriptions found in Canon 5G* of the Code of Judicial Conduct. The Committee is of the opinion that the resignation of the lawyer from such Bar Committee before accepting his judicial post would be appropriate.

_________________

*Now see Canon 4H.

POLITICAL ACTIVITY

Opinion No. 18 (1976)

QUESTION: May an incumbent judge in a multi-court county (who is a candidate for reelection or election to a higher court and who is opposed by a lawyer, incumbent judge, or judge of an inferior court) preside over or participate in the weekly juror qualification process (while he is an official candidate) without violating the letter or the spirit of Canon 7* of the Code of Judicial Conduct?

ANSWER: The question is answered in the affirmative. Standing alone, the mere appearance and participation in such process by such a judge does not violate either the letter or the spirit of Canon 7* of the Code of Judicial Conduct. While performing such judicial functions, such judge should refrain from conduct which might tend to arouse reasonable belief that he is using such functions to promote his own candidacy.

_______________

*Now see Canon 5.

TV IN COURTROOM

Opinion No. 19 (1977)

QUESTION: Does a trial judge violate Code of Judicial Conduct, Canon 3A(7)*:

1. By permitting newsmen to film, photograph, record or broadcast all or any of the trial proceedings from a vantage point inside the courtroom?

2. By permitting newsmen to film or photograph all or any part of trial proceedings through the glass panels in the doors without actually entering the courtroom?

3. Is the answer the same if the parties, attorneys, and witnesses agree to the filming, photographing, broadcasting or recording?

ANSWER: We answered each of the three questions in the affirmative for the reasons now to be stated.

Each of the questions is prefaced with "permission" having been given by the judge for such conduct. The canon does not speak to "permission"; rather, it speaks clearly but negatively; the judge should prohibit all broadcasting except upon the occasions specified in the canon, none of which are material here.

The most recent authoritative expression of opinion in this area of the law is that found in Nebraska Press Association v. Stuart, 427 U.S. 539, 49 L.Ed.2d 683, 96 S.Ct. 2791 (1976), and the opinion should be studied carefully before taking any action which might be considered as a prior restraint upon the freedom of the press.

On the other hand, the opinion in Bird v. State, 527 S.W.2d 891, 895-896 (Tex. Crim. App. 1975), is directly in point and should govern judges in Texas conducting criminal trials subject to review by that Court. This latter opinion is particularly helpful since it is the only judicial construction of the particular canon under consideration known to the Committee.

The Committee on Judicial Ethics declines to answer questions propounded seeking advice as to steps to be taken against a person who may violate any rules regulating the conduct of spectators at a trial of a case. Such questions relate to the duties and responsibilities of members of the judiciary and do not come within the scope of the authority of this Committee.

_______________

*Now see Rule 18c, Texas Rules of Civil Procedure.

JUDGE ON CRIMINAL JUSTICE ADVISORY BOARD

Opinion No. 20 (1977)

QUESTION: May a judge of a court of record serve as a member of a Criminal Justice Advisory Board which supervises applications for LEAA and juvenile justice funds?

ANSWER: The Committee is unanimous in its opinion that such activity is a proper one for a judge to engage in, subject, however, to the preliminary language found in Canon 4 of the Code of Judicial Conduct.