Advisory Opinions On Judicial Ethics 121-130

CONDUCT SETTLEMENT CONFERENCES

Opinion No. 121 (1988)

QUESTION: May a district judge conduct settlement conferences for suits filed (1) in his court or (2) in another judge's court, where he only conveys settlement offers and asks question? In the conference he sets no values, gives no opinions, and discloses no confidential information.

ANSWER: Although judges should encourage settlement negotiations, the described procedure appears to make the judge a mediator. Canon 5E* of the Code Of Judicial Conduct prohibits a judge from being a mediator. Also, Canon 3A(5)** states, "A judge...shall not directly or indirectly initiate, permit, nor consider ex parte or other communications concerning the merits of a pending or impending judicial proceeding."

The committee is of the opinion that the use of the settlement procedure outlined above by a district judge would be a violation of Canons 5E* and 3A(5)** of the code. Whether the litigation is filed in the judge's court or any other court makes no difference. The committee notes that Canon 5E* is not applicable to all classifications of judges. See, Canon 8.***

QUESTION: Would it be a violation of Canon 5G of the Code of Judicial Conduct for a County Court at Law Judge to serve as a member of the board of directors of a private agency which is established to oversee the operations of job-training, remedial education, summer youth employment programs, on-the-job training programs, etc., under a federal job training program?

PREFACE: The committee is advised that the board of directors decides which local agencies receive funding and in what amounts. The board of directors also has oversight and reporting duties and further generally designs and implement programs to insure that the money is spent wisely and effectively.

ANSWER: From the information furnished to the committee, the agency is a private, non-profit organization. Even though the agency implements programs funded by the federal government, the agency is not a governmental committee or commission; and therefore, the committee perceives no violation of Canon 5G* of the Code of Judicial Conduct in serving on the board of directors of such agency. See, limitations set out in judicial ethics opinion No. 85.

QUESTION: If a senior judge's wife becomes a member of a political action committee for a group of hospitals, does this in any manner constitute a violation of the Code of Judicial Conduct?

ANSWER: The code does not in any manner attempt to regulate the activities of a judge's spouse. Canon 2B does prohibit a judge from (1) allowing family members to influence his judicial conduct or judgment (2) allowing others to use the prestige of his office (in this case his title) to advance their private interests, and (3) allowing others to convey the impression that they are in a special position to influence the judge.

Canon 2A admonishes judges to conduct themselves in a manner to promote public confidence, and Canon 3A(2)* admonishes judges to be unswayed by partisan interests.

The committee perceives no violation of the code if the senior judge's wife accepts the described appointment. However, if the judge perceives, in the acceptance of assignments, any impropriety or appearance of impropriety as a result of his or her spouse's appointments, refusal to accept such assignment or recusal after accepting the assignments would not be inappropriate.

QUESTION: Would a former district judge, who has consented to be subject to assignment, violate the code of judicial conduct by acting as an arbitrator or mediator?

ANSWER: Canon 5E* of the Code of Judicial Conduct Act states "A judge should not act as an arbitrator or mediator." However, a former district judge who has complied with the Court Administration Act, Art. 74.054(3) is placed by Canon 8G** of the code in the same category as a senior judge. Canon 8G(1)** states, "[A former district judge]... is not required to comply with Canon 5E@,* but Canon 8G(2)** qualifies this exception by stating "[A former district judge]... should refrain from judicial service during the period of extra-judicial appointment permitted by Canon 5G."***

The committee is of the opinion that a former district judge who has qualified under Art. 74.054(3) may act as an arbitrator or mediator provided the judge refrains from performing judicial service during the period of an extra-judicial appointment.

QUESTION: May a judge ethically require proof of registration with the United States Department of Selective Service by eligible young men as a condition for the judge giving consideration to a suspended sentence or deferred adjudication as provided by Art. 45.54, Texas Code of Criminal Procedure?

ANSWER: The posed question requires a legal opinion. The function of the judicial ethics committee is to write opinions construing the Code of Judicial Conduct. The giving of legal opinions is beyond the scope of authority given to the committee.

The committee respectfully declines to answer the question and suggests that it be submitted to the office of the Attorney General or other appropriate officers authorized to give legal opinions.

QUESTION: If a parent incurs fees charged by a Juvenile Board's Court Services Department for receiving and disbursing child support or for social studies, and if the applicable statute provides that payment of such fees may be enforced in district court, may a District Judge sign a letter to such parent, or authorize a letter from the court to such parent, to collect such fees?

ANSWER: There are no specific Code of Judicial Conduct provisions that guide a judge in avoiding conflicts between adjudicative and administrative responsibilities, but the Committee is of the opinion that a judge should not personally participate in attempting to collect such fees. If a judge may be required to preside at a hearing concerning the payment of fees, a judge should not write a letter for the purpose of collecting those fees. Such a letter would give the appearance of being inconsistent with the Canon 3A(4)* provision that a judge shall afford to every party the full right to be heard according to law, and the Canon 3A(5)* provision that a judge shall not initiate or permit ex parte communications concerning an impending proceeding.

The committee is also of the opinion that such letters should not appear to be from the "court", that is, from the judicial entity of which the judge is the principal officer. As the authority to determine disputed law and fact issues concerning the fees is actually delegated by law to that entity, it should not send collection letters.

QUESTION: Is there a conflict between Opinion 104 and Section 36 of the Mental Health Code (Art. 5547-36)?

ANSWER: No. Opinion 104 states that a judge should not "prepare applications and other legal pleadings for persons who desire to commit someone to a mental hospital." The statute provides that a motion for an order of protective custody may be filed "on the court's own motion." (Emphasis supplied.)

The "court" is the judicial agency created by law for the purpose of hearing and determining issues of law and fact and authorized to exercise that power according to prescribed rules. The "judge" is the principal officer of that entity. An attempt by the judge to assist an interested person in preparing an application or pleading would conflict with the statutory duty of the judge to make for the court the judicial decision whether to initiate protective custody proceedings without an application. Such assistance would be inconsistent with the provisions of Canon 3A(4)* that a judge must accord to every legally interested person the right to be heard, of Canon 3A(5)* that a judge must not permit ex parte communications, and of Canon 5F** that a judge may not practice law.

The judge who submitted this question also inquired whether a judge who makes an Art. 5537-36 decision to initiate a protective custody proceeding should recuse himself from making the protective custody determination under the statute. The recusal provisions that were stated in Canon 3C of the Code of Judicial Conduct are now covered by the Texas Rules of Civil Procedure. The Committee concludes that a decision on recusal is an adjudicative responsibility of the judge and that the Committee should no longer undertake to answer questions concerning recusal.

The committee also concludes that it would not be appropriate for the Committee to respond to a question concerning the meaning of the Art. 5537-36 words "on the court's own motion," because that is a question of law that must be resolved by each judge who encounters it.

QUESTION: May a former district judge use the following stationery letterhead for official correspondence while on assignment?

ANSWER: No. The Committee is of the opinion that the letterhead may be misleading because the word "Formerly" modifies the word "District" and not the word "Judge". The Canon 3B* provision that a judge should not use the prestige of his office includes the requirement that a judge should not use the prestige of his former office. The Committee believes that a judge should avoid any statement about his judicial status that could be ambiguous.

The Committee is also of the opinion that in official correspondence a former district judge may be identified as a former district judge or as a former judge of a court that is correctly identified.

QUESTION: If a lawyer owns and practices law in a professional corporation and then becomes a judge, may the judge continue to own, and may the judge receive a salary from, the corporation while pending matters are being completed by other lawyers?

ANSWER: No. Canon 5F* provides that a judge should not practice law, and the Committee is of the opinion that a judge should not own or receive a salary from an existing corporation whose only purpose is the practice of law.

The liquidation of the assets of a law practice professional corporation is governed by the Canon 5C(3)** provision that a judge's financial interests that might require frequent disqualification should be disposed of as soon as the judge can do so without serious financial detriment.

QUESTION: A judge brings to the attention of this Committee the Texas Attorney General's March 10, 1989 Opinion LO-89-21 which states that Canons 2 and 7 do not prohibit a judge from endorsing a candidate, and the judge submits this question: May a judge endorse a candidate for public office?

ANSWER: No. The Judicial Ethics Committee concludes again that a judge's public endorsement of a candidate for public office violates the Code of Judicial Conduct because such an endorsement tends to diminish public confidence in the independence and impartiality of the judiciary and may give the appearance of involvement in partisan interests and of judicial concern about public clamor or criticism, and because such an endorsement of necessity involves the use of the prestige of the judge and the prestige of his office. See Canons 1, 2A, 2B, and 3A(1), and Judicial Ethics Committee Opinions No. 73, 92, and 100.

The Committee has considered the Attorney General's Opinion and the provisions of the amended Code adopted in 1987, and the Committee is not persuaded by the Attorney General's conclusion that, in the Canon 2B provision that a judge should not lend the prestige of office to advance the private interests of others, the words "private interests" do not include candidacy.

The committee reaffirms its Opinion No. 73, and, by a unanimous vote, respectfully recommends that the Supreme Court of Texas amend Canon 7* of the Texas Code of Judicial Conduct by adding to Canon 7* the following provisions from proposed Canon 5A of the May 1, 1989 Draft Revisions to the American Bar Association Code of Judicial Conduct: "A judge or a candidate for election or appointment to judicial office shall not make speeches for a political organization or candidate or publicly endorse a candidate for public office." [Proposed ABA Canon 5A(1)(b)]"A judge holding an office filled by public election between competing candidates, or a candidate for such office, may, only insofar as permitted by law, attend political gatherings, speak to such gatherings on his or her own behalf when a candidate for election, identify himself or herself as a member of a political party, and contribute to a political party or organization." [Proposed ABA Canon 5A(3)]

Judicial Ethics Opinions