SERVICE ON COMMITTEE TO RESTORE COURTHOUSE

 

Opinion No. 131 (1989)

 

QUESTION: May judges serve on, and allow their names to appear on the letterheads of, steering and coordinating committees to consider funding and organizing a project to restore their courthouse dome, and a project committee to consider the design and appropriateness of the restoration?

 

ANSWER: The Committee concludes that a judge may serve on and advise such committees but may not allow their names to appear on letterhead used for fund raising.

As proper facilities for courts are essential to the legal system and to the proper administration of justice (see Committee Opinion 82), this courthouse dome project is within the provisions of Canon 4C*, which reads as follows:

            "A judge may serve as a member, officer or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A judge may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities.  He or she may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice."

As stated in Committee Opinion 58, a judge may serve in a leadership capacity in a Canon 4C* organization, but Canon 5B(2)** prohibits any type of participation in, or lending the prestige of judicial office to, public fund raising activities.

The Canon 4C* exceptions to the Canon 5B(2)** prohibition against participating in fund raising are limited to advice to legal system and administration of justice organizations and to recommendations to fund-raising agencies and similar donors.  See Opinion 58.   This construction of Canon 4C* gives effect to the principles of Canon 1 and Canon 2B that a judge should not lend the prestige of judicial office, or permit others to curry favor or to give the impression that they can influence the judge.

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* Now see Canon 4B.** Now see Canon 4C(2).

 

 

 

 

PART-TIME JUDGE REPRESENTATION OF CLIENTS

 

Opinion No. 132 (1989)

 

FACTS ASSUMED: In the county in question municipal court judges act as magistrate in most criminal cases in which defendants are arrested.  Those judges consider affidavits for, and they issue, both search and arrest warrants.  They also arraign defendants, and they set bonds.

 

QUESTION 1: May a relief judge for a municipal court represent, or practice law with a lawyer who represents, a defendant in a county court or district court case in which a magistrate who is another judge of the same municipal court took some action?

 

QUESTION 2: May such a part-time judge represent, or practice law with a lawyer who represents, an accused in a criminal case that has not been considered by another municipal court judge?

 

QUESTION 3: May a municipal court judge continue to serve in that position if the judge's lawyer spouse represents defendants mentioned in Questions 1 and 2?

 

ANSWER: The answer to Question 1 is No.  The provision of Canon 8D(1)(d)* that a municipal court judge may practice law except in the court on which the judge serves or "in a proceeding in which he or she has served as a judge or in any proceeding related thereto," does not expressly prohibit a municipal court judge from representing clients  in criminal cases which other judges of the same court have considered.  However, the Committee concludes that such representation would be inconsistent with Canon 5C(1),** which provides that a judge should refrain from financial and business dealings that (1) tend to reflect adversely on the judge's impartiality, (2) interfere with the proper performance of judicial duties, (3) exploit his or her judicial position, or (4) involve the judge in frequent transactions with lawyers or person likely to come before the court on which he or she serves.

The Committee believes that in this context the words "financial and business dealings" include the practice of law.  A part-time municipal court judge would at least give the appearance of disregarding all four parts of Canon 5C(1)** if the judge's law practice includes clients whose cases were considered by other judges on the same court.

In response to Question 2 the Committee concludes that the Code of Judicial Conduct does not prohibit a part-time municipal court judge from representing an accused in a criminal case if such representation does not violate Canon 5C(1).**

The answers to Question 3 correspond to the answers to Questions 1 and 2.  The judge's financial interest in the income from the spouse's representation of clients who appear before other judges of the same court would be inconsistent with the provisions of Canon 5C(1).**  The judge would not necessarily violate that Canon if the judge's spouse represents defendants whose cases are not considered by other municipal court magistrates.

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* Now see Canon 6C.

** Now see Canon 4D.

 

 

MEETING WITH COUNTY COMMISSIONERSCONCERNING COUNTY'S CASES

 

Opinion No. 133 (1990)

 

FACTS ASSUMED: A Commissioners Court developed a concern about a judge's impartiality in eminent domain cases and about behavior of the judge "which may indicate a prejudice" against the County.  Two members of the Commissioners Court requested a meeting with the judge to make the judge aware of this concern before public Commissioners Court discussion or action.  No pending or future case would be discussed.

 

QUESTION: Should a judge meet with County Commissioners to discuss previous decisions in cases in which the County was a party?

 

ANSWER: No.  The Committee concludes that such a meeting would be inconsistent with the following provisions of the  Code of Judicial Conduct:

The Canon 1 provision that an independent judiciary is indispensable to justice in our society.

The Canon 2A provision that a judge should promote public confidence in the integrity and impartiality of the judiciary.  The Committee believes that the proposed private meeting, between a judge and the principal officers of one party to a series of lawsuits, would tend to impair public confidence in the impartiality of the judiciary.

The Canon 2B provision that a judge should not convey or permit others to convey the impression that they are in a special position to influence the judge.

The Canon 3A(1)* provision that a judge should be unswayed by partisan interests, public clamor, or fear of criticism.

The Canon 3A(5)** provision that a judge shall not directly or indirectly permit private communications concerning the merits of a pending proceeding.  The Committee believes that under the circumstances stated a meeting to discuss previous decisions in eminent domain cases would give the appearance of being a meeting concerning decisions in pending or future eminent domain cases.

Although the Supreme Court has abrogated the Code of Judicial Conduct provision [Canon 3A(8)]*** that a judge shall abstain from public comment about a pending or impending proceeding in any court, the members of this Committee agree that such comments are unethical.  By attending such a meeting about previous decisions a judge would give the appearance of accepting an invitation to comment on impending decisions in similar cases.

The Canon 7(2)**** provision that a judge shall not make pledges or promises regarding judicial duties other that the faithful and impartial performance to the duties of office.  The Committee believes that by attending such a meeting a judge would give the appearance of accepting an invitation to give assurance concerning decisions in pending and future eminent domain cases.

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* Now see Canon 3B(2).

** Now see Canon 3B(8).

*** Now see Canon 3B(10).

**** Now see Canon 5(2).

 

 

MEETING WITH NEWSPAPER'S EDITORIAL BOARD

 

Opinion No. 134 (1989)

 

FACTS ASSUMED: In one of the large Texas cities, which is served primarily by one major daily newspaper, that newspaper periodically files suits in the courts of the county, and two such suits are pending in the court of the judge in question.

 

QUESTION: Would the judge violate any provision of the Code of Judicial Conduct by participating in an interview with the newspaper editorial board to provide information on which the newspaper will base an endorsement to be published before the election at which the judge seeks reelection?

 

ANSWER: No.  The Code of Judicial Conduct does not prohibit a judge from meeting with, and responding to questions from a newspaper's editorial board.  The possibility that the judge may decide to recuse himself in a case or cases involving the newspaper should not prevent the judge from attending such an interview.

 

USE OF WORDS "REELECT" AND "KEEP"IN CAMPAIGN MATERIAL

 

Opinion No. 135 (1990)

 

QUESTION: May a judge, who sought reelection and was defeated, use the words "reelect" or "keep" on campaign material in a subsequent campaign, against an incumbent, for election to another court?

 

ANSWER: No.  The Committee concludes that the use of such words in campaign material would violate the Canon 7(2)* provision that any statement of a judicial candidate's record should be such as can withstand the closest scrutiny as to accuracy, candor, and fairness.

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* Now see Canon 5.

 

 

CAMPAIGN BUMPER STICKERS ON JUDGES' VEHICLES

 

Opinion No. 136 (1990)

 

QUESTION: May a judge display on the judge's vehicle a bumper sticker supporting a political candidate?

 

ANSWER: No.  For the reasons stated in Opinion No. 130 a judge's public endorsement of a candidate for public office violates the Code of Judicial Conduct.

After Opinion 130 was issued, the Texas Supreme Court amended Canon 7(3)* so that it now expressly prohibits the public use of a judge's name endorsing another candidate.  The Committee concludes that a judge displaying such a bumper sticker would also violate at least the spirit of this new Canon 7(3)* provision, because a judge cannot realistically separate the prestige of judicial office from the judge's personal affairs.  See Opinion No. 73.

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* Now see Canon 5(3).

 

 

USE OF JUDICIAL LETTERHEAD

 

Opinion No. 137 (1990)

 

DEFINITION: In this opinion "judicial letterhead" means letterhead that shows a judge's title, position, and official address and is suitable for official judicial  correspondence.

 

QUESTION 1: May a judge use judicial letterhead, or letterhead that simply shows the title "Judge", for personal business and social correspondence?

 

ANSWER: Yes.  The Code of Judicial Conduct does not prohibit the use of judicial letterhead, or letterhead that shows the title "Judge", for personal matters.  However, a judge should avoid any appearance of impropriety (Canon 2), or of conflict with the judge's judicial duties (Canon 5),* that might result from such use of such letterhead, including the following:

a. letterhead use that would give the appearance of using the prestige of the judge's office to advance the private interests of the judge or others, or would reflect on the independence, integrity, or impartiality of the judiciary (Canons 1 and 2);

b. letterhead use that would appear to exploit the judge's position or would require frequent disqualification (Canon 5C);* or

c. using letterhead as a part of any conduct that violates another provision of the Code.

 

QUESTION 2: May a judge place a small picture of the judge on judicial letterhead purchased with personal funds?

 

ANSWER: While placing a picture of the judge on the judge's official letterhead would not violate any specific provision of the Code of Judicial Conduct, the Committee believes that the use of a picture of the judge on judicial letterhead would be undignified.  See Canon 3A(3).**  Such a picture could also place an unusual and unnecessary emphasis on the appearance and personality of the judge, which could tend to obscure the basic principle that the administration of justice should be an impersonal, predictable, and consistent process, based on the application of established rules of law to the facts of each case, and not on the individual judge presiding in each case.

 

QUESTION 3: May a judge use judicial letterhead to solicit contributions or other support in the judge's campaign for reelection or for election to another office?

 

ANSWER: No.  Canon 5C(1)*** provides that a judge's financial activities must not reflect adversely on the judge's impartiality, interfere with the proper performance of judicial duties, exploit the judge's judicial position, or involve the judge in frequent transactions with lawyers or persons likely to be in court.  On December 19, 1989 the Texas Supreme Court amended Canon 5C(1)*** by adding thereto a sentence providing that this "limitation" on financial activities does not prohibit a judge from soliciting campaign contributions. (Emphasis added.)

The Committee concludes that this amendment manifests the Supreme Court's intent to provide that campaign solicitations are subject to the same Canon 5C(1)*** rules that govern a judge's other financial activities.  Therefore, in soliciting campaign contributions, a judge must avoid activities that reflect adversely on the judge's impartiality, interfere with the proper performance of judicial duties, exploit the judge's judicial position, or involve the judge in frequent transactions with lawyers or persons likely to be in court.+

The Committee believes that the use of judicial letterhead to solicit campaign contributions or other campaign support would violate Canon 5C(1)*** as amended.  Of course a judge's campaign literature should state the judge's present title and position, but the use of official judicial letterhead for campaign purposes could give the appearance that a judge candidate is attempting to exploit the judge's judicial position.

 

QUESTION 4. May a judge who is chairman of the local Bar Association membership committee use judicial letterhead for a letter from the judge asking lawyers to join the Bar Association?

 

ANSWER: Yes.  To a limited extent Canon 4C**** condones the use of judicial prestige for the improvement of the law, the legal system, or the administration of justice, and it permits a judge to serve as a member, officer, or director of an organization devoted to those purposes.  However, the Code does not permit a judge to use the prestige of judicial office by participating personally in fund raising activities for such an organization, and use of judicial letterhead for that purpose would be improper.

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+Committee Footnote:  Judges should not assume that the Supreme Court intended the other meaning that could be given this amendment: that a judges may solicit a campaign contribution even if the solicitation reflects adversely on the judge's impartiality, interferes with the proper performance of judicial duties, exploits the judge's judicial position, and involves the judge in frequent transactions with lawyers or persons likely to be in court.

* Now see Canon 4.

** Now see Canon 3B(4).

***Now see Canon 4D.

****Now see Canon 4B.

 

 

 

APPOINTMENT TO GOVERNMENTAL COMMITTEE

 

Opinion No. 138 (1991)

 

FACTS ASSUMED: The statutory duties of the Local Government Records Committee are to review and approve the State Library and Archives Commission's schedules and rules for the retention and care of local records, and to advise that Commission on all matters concerning the management and preservation of such records.  Government Code Section 441.162 provides that the person who is appointed chairman of the Committee must be an active or retired district judge.

 

QUESTION: Would an active judge, or a retired district judge subject to assignment, violate Canon 5G* of the Code of Judicial Conduct by serving on the Local Government Records Committee?

 

ANSWER: No.  The Committee concludes that service on this Committee would not violate the provision of Canon 5G that a judge should not accept appointment to a governmental committee that is concerned with issues of fact or policy other than the improvement of the law, the legal system, or the administration of justice.

The statute referred to in the question manifests a legislative intent to coordinate the record keeping responsibilities of the three branches of government, and the Committee concludes that a judge's participation in that statutory arrangement would serve a proper judicial purpose.

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* Now see Canon 4H.

 

 

JUDGE AS AN EXPERT WITNESS

 

Opinion No. 139 (1991)

 

QUESTION: May a judge testify as an expert witness in a lawsuit in which the defendant is a lawyer who is accused of malpractice that allegedly occurred during a previous trial at which the proposed judge witness was the presiding judge?

 

ANSWER: Not voluntarily.  A judge may testify as an expert witness in such a proceeding only if the judge is subpoenaed as a witness and required to testify, but a judge should not testify voluntarily and should discourage a party from requiring the judge to testify as an expert witness.+

The Committee concludes that a judge should not cooperate with a party in becoming an expert witness in such a case, because that would create the appearance of using the prestige of judicial office for the benefit of the party for whom the judge testifies and could also create the appearance of compromising the independence of the judge, by placing the judge on one side of an adversarial proceeding between lawyers who may often appear before the judge.

 

A judge should not, under any circumstances, accept compensation for testifying.

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+ Committee Footnote: Compare Joachim v. Chambers, 815 S.W.2nd 234 (Tex. 1991), holding that under these circumstances a trial judge abused his discretion in refusing to order a party not to call the proposed judge witness.