Advisory Opinions On Judicial Ethics 181-190

QUESTION: May a judge elected in 1994 and who does not plan to seek judicial office in 1996 have a fundraising event in November 1995?

ANSWER: No. In Opinion 176, the Committee concluded that section 4(ii) of new Canon 5, the 120 day post-election fundraising deadline, did not apply to judges and candidates in the 1994 elections because it did not take effect until January 1, 1995. To have applied the new Canon to 1994 candidates would have required that the deadline period begin to run on November 9, 1994, which was before the new Canon took effect. There is no such problem, however, in applying section 4(i), the 210 day pre-election fundraising deadline, to candidates in the 1994 election, as well as to all other judges and candidates.

Section 4(i) provides a date when persons expecting to be candidates in the 1996 election may begin to raise funds. It allows fundraising after that date only by persons who, in good faith, expect to be candidates for judicial office in the 1996 election, and allows only such persons to begin raising funds 210 days before the filing deadline for the office to be sought in the 1996 election.

Because the judge who posed this question does not plan to seek office in 1996, she may not have a fundraising event on November 11, 1995. We further conclude, however, that the judge in question, like all candidates in the 1994 general election, may raise funds until the 210th day before the filing deadline for the 1996 elections. See Opinion 176.

QUESTION: The Texas Human Resources Code provides that the county judge and the district judges in the county shall comprise the county juvenile board. The Code requires the board to appoint an advisory council consisting of not more than nine citizens. By practice, the board has allowed each board [member] to appoint one member of the council. May a district judge, sitting as a member of the county juvenile board, appoint his brother-in-law to the county juvenile advisory council?

ANSWER: No. Canon 3C(4) provides that, "A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism." In Opinion No. 83 (1986), we found the canon prevented a judge from appointing the lawyer-employee of his father and brother to represent the indigent. Although Opinion No. 83 is primarily concerned with the extent to which the lawyer's compensation would benefit the father and brother, and thereby accomplish indirectly that which cannot be done directly, it is not based solely on the pecuniary benefits that would accrue to the judge's relatives. Opinion No. 83 is equally concerned with the appearance of impropriety and perception of favoritism inherent in the arrangement, which concerns, together with nepotism, are more obviously present in the instant case.

Although we do not render legal opinions, and therefore do not decide whether Section 573.041 of the Texas Government Code answers the question posed, we note that a brother-in-law is within the degree of affinity commonly addressed by nepotism statutes. See Tex. Gov't. Code Ann. 573.041, .002, .024 (Vernon 1994). Thus, by appointing his brother-in-law, the judge would engage in nepotism. Because Canon 3C(4) proscribes nepotism, the judge may not appoint his brother-in-law to serve on the advisory council. Additionally, such an appointment would run afoul of Canon 2B's requirement that a judge not allow any relationship to influence judicial conduct or judgment and of Canon 2A's requirement that a judge act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

QUESTION: May a judge ethically conduct an ex parte hearing with appointed defense counsel representing an indigent client on the subject of expert witnesses?

BACKGROUND: A defendant is charged with capital murder, and the state is seeking the death penalty. Appointed counsel seeks judicial authorization to employ experts for assistance, but does not want the prosecutor to know the relief requested, the reasons urged in support of the motion, or the relief granted.

ANSWER: Yes. Canon 3B(8) generally prohibits ex parte communications concerning the merits of a pending or impending judicial proceeding, but it does not prohibit ex parte communications expressly authorized by law. See Canon 3B(8)(e). At least 10 states have judicially allowed ex parte hearings on such requests. State of Louisiana v. Touchet, 642 So. 2d. 1213, 1218 (La. 1994). At least two have held that such ex parte hearings are required by the United States Constitution. State v. Touchet, supra; State of North Carolina v. Ballard, 428 S.E. 2d 178, 183, (N.C. 1993). In Ballard, the court limited the requirement to psychiatric experts, but in Touchet, the rule was extended to hearings to authorize funds for experts to examine physical evidence gathered by the state. See also Ake v. Oklahoma, 105 S.Ct. 1087, 1096 (1985) (referring to ex parte hearing).

The Committee concludes that a judge would not violate Canon 3B(8) by conducting such an ex parte hearing, assuming the judge believed that it was expressly authorized by law.

The Committee on Judicial Ethics expresses no opinion on questions of law; therefore, it expresses no opinion on the issue of whether an ex parte hearing is constitutionally required in any particular case. The cases above are mentioned only to demonstrate that a judge could reasonably conclude that the ex parte communication was expressly authorized by law so as to fall within the exception provided by Canon 3B(8)(e).

QUESTION 1: May a judicial candidate ethically list in political advertising the endorsement of special interests groups with an obvious political agenda, such as Texans Against Drunk Driving, Texans for Tort Reform, Texas Prosecutors Association, Texas Peace Officers Association, Texans for Law Enforcement, Pro-Life Texans, or Texans for Choice?

1. A judge or judicial candidate shall not make statements that indicate an opinion on any issue that may be subject to judicial interpretation by the office which is being sought or held.

2. A judge or judicial candidate shall not make pledges or promises of conduct in office other than faithful and impartial performance of judicial duties.

It is obvious that the endorsing organizations have made strong political statements. The judge or candidate by listing the organizations has made no statement indicating an opinion on an area subject to judicial interpretation. The only statement the candidate is making is that these groups endorse him/her.

QUESTION 2: May a judicial candidate advertise or state a position on abortion, i.e. "I am the pro-choice/pro-life candidate"?

A judge or candidate may not make a statement declaring that he/she is pro-life or pro-choice, based on Canon 5 paraphrased above. The judge or candidate is clearly making a statement that indicates an opinion on an issue possibly subject to judicial interpretation. Further, there is a strong implication of a promise of particular conduct in office other than the faithful performance of official duties.

BACKGROUND: A luncheon is being held as part of a "Walk Out on Crime" weekend sponsored by the Citizens Crime Commission of Tarrant County. The speaker will be a nationally recognized expert on domestic terrorism and workplace violence. He will provide an overview of current activities in American cities and their implications for Tarrant County. The luncheon is one of many events of the weekend.

QUESTION: May a judge be on the host committee, attend the event, promote it within the community, and have her name on the invitation?

ANSWER: Yes. Canon 4 provides that a judge may participate in activities concerning the law, the legal system, and the administration of justice so long as such participation does not cast doubt on her capacity to decide any issue that may come before the court.

It appears from the description of the luncheon that the focus of the Citizens Crime Commission is to explain problems that are facing the legal system and suggest possible solutions. The judge may be on the host committee, attend the luncheon, and allow her name on the invitation.

In promoting the luncheon, the judge should not lend the prestige of her office to advance the private interests of any vendors or others associated with the event as prohibited by Canon 2.

QUESTION 1: Does the Code of Judicial Conduct apply to a former judge who is now retired and has not elected to take judicial assignments?

ANSWER 1: No. Canon 6F provides that "a Senior Judge, or a former district judge, or a retired or former statutory county court judge who has consented to be subject to assignment as a judicial officer" shall comply with all provisions of the Code, with minimal exceptions. However, compliance with the Code is not required for a former judge, now defined as a "Retired Judge" by Canon 8B(14), who has not consented to be subject to assignment pursuant to Tex. Gov't. Code Ann. 75.001 (Vernon Supp. 1996).

QUESTION 2: Does the Code of Judicial Conduct prohibit a former judge who is now retired and has not elected to take judicial assignments from writing to Texas district and appellate judges requesting their contribution to a fund to be used to seek an increase in judicial pay?

ANSWER 2: No. Given the resolution to Question No. 1 above, the current Code of Judicial Conduct does not prohibit a former judge who is now retired and has not elected to take judicial assignments from writing to Texas district and appellate judges requesting their contribution to a fund to be used to seek an increase in judicial salary.

QUESTION: May an associate municipal court judge serve as a part-time Special Master under the authority of Article 11.07 3(d), V.A.C.C.P.?

ANSWER: The Committee is of the opinion that this is a question of law not a question of ethics.

The Committee on Judicial Ethics writes advisory opinions interpreting the Code of Judicial Conduct. The Committee declines to answer the question and suggests the judge seek a legal opinion from the proper forum.

NEWLY ELECTED DISTRICT JUDGE "WINDING DOWN" OBLIGATIONS AS EX COUNTY JUDGE; DISTRICT JUDGE ON CRIMINAL JUSTICE POLICY COMMITTEE

QUESTION: (A) May a newly appointed district judge "wind down" his service on the North Central Texas Council of Governments by attending three meetings in his capacity as immediate past president? Similarly may he attend two meetings remaining during his term as the Texas representative on the board of the National Association of Regional Councils of Government?

(B) Additionally, this district judge asks if he can sit on the Criminal Justice Policy Committee of the local Council of Governments, a committee which deals exclusively with criminal justice and juvenile and juvenile justice policy issues.

ANSWER: (A) No. Canon 4H prohibits judges from accepting appointment to a governmental committee 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. There is no provision for "winding down" a previous appointment; if it is improper to accept such an appointment, it is improper to continue such an appointment after assuming the bench.

(B) Yes. Service on a local council of governments committee concerned exclusively with criminal justice and juvenile justice policy issues is permitted by the language of Canon 4H allowing judges to accept appointment to governmental committees concerned only with issues of fact or policy involving the improvement of the law, the legal system, or the administration of justice. However, service on such a committee must comply with Canon 4A's admonition that the activities not interfere with judge's proper performance of judicial duties and not cast reasonable doubt on his capacity to act impartially as a judge.

QUESTION: May a constitutional county court judge who performs judicial functions serve on the board of directors of a local United Way charitable organization, provided that the board does not participate in fund raising and only sets policy?

ANSWER: Yes. A county judge who performs judicial functions is subject to the provisions of the Code of Judicial Conduct under Canon 6(B), subject to exceptions not relevant to this inquiry. Canon 4(C) of the Code authorizes a judge to serve as a director of a charitable organization, provided that he or she does not personally solicit funds and provided that service on the board will not otherwise interfere with the performance of his or her judicial duties.

QUESTION: May the partners or associate attorneys of a part-time associate judge practice in the court of the district judge where the associate judge is appointed to serve?

ANSWER: No, they may not. Canon 6D(2) states that a part-time commissioner, master, magistrate, or referee should not practice law in the court in which he or she serves. Canon 2B provides that a judge shall not permit others to convey the impression that they are in a special position to influence the judge. In this situation, partners or associates of the part-time associate judge would be in a position to convey this impression.

Judicial Ethics Opinions

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