Advisory Opinions On Judicial Ethics 21-30

QUESTION: What criteria determines whether a judge is a part-time judge under the provisions of Compliance Section,* paragraph B, Code of Judicial Conduct (Feb. 18, 1977)?

ANSWER: Essentially, the determination of whether a judge is a "part-time judge," as defined in the cited paragraph of the Code, is a factual determination and must be made upon a case by case basis.

Without intending to lay down any hard and fast rules governing every situation, the Committee is of the opinion that one would be considered a part-time judge if two conditions are met:

1. The statute creating the court does not specifically prohibit the judge thereof from devoting time to some other profession or occupation; and,

2. The agency making the appointment of the judge to such court (ordinarily the commissioners court), at or about the time of the appointment, acknowledges that the compensation of such judge is less than that of a full-time judge.

QUESTION: May a district judge act as a moderator for a short (five-minute) bi-weekly television program designed to educate the public on the duties and functions of courts and related agencies dealing with the administration of justice?

ANSWER: Such activity is authorized by the provisions of Canon 4A.* Before engaging in such activity, however, the judge should familiarize himself with the provisions of Canon 2A, the preamble to Canon 4, and Canon 7A.** Conduct in violation of either of the latter provisions of the Code is not authorized by the broad language found in Canon 4A.*

QUESTION: May a district judge become a part owner (with no more than three co-owners, one of which is a local attorney) of a title insurance business?

ANSWER: The Committee is of the opinion that such ownership and participation in a title insurance business would be in violation of Canon 5C(1)*:

"A judge should refrain from financial and business dealings that tend to reflect adversely on his [or her] impartiality, interfere with the proper performance of [the] judicial duties, exploit his [or her] judicial position, or involve [the judge] in frequent transactions with lawyers or persons likely to come before the court on which he [or she] serves."

QUESTION: Does a judge violate any of the canons of the Code of Judicial Conduct by attending a public meeting of an organization composed largely of local citizens of a particular religious faith at which time such organization will bestow upon the judge an award of honor? The organization specifically states in its invitation "that funds will not be solicited during this event."

ANSWER: No. Attendance upon such an event, even though a minimum couvert is required for attendance, does not violate Canon 5B(2)* of the Code of Judicial Conduct.

QUESTION: A development council formed to assist in the funding of a new parochial school has invited a judge to join the council which is "designed to lend prestige to the development program and to provide individual and collective advice and guidance" to the leadership of the entity. The invitation recites that the "insight, counsel and prestige [of the judge] in the community will be very helpful." It has been made known to the Committee that the judge will not be required to take part in any fund-raising program "other than to allow the use of his name as a member of the group seeking to raise funds." Is it a violation of the Code of Judicial Conduct for a judge to accept membership in such council?

ANSWER: Yes. Participation in such an activity would be in violation of Canon 5B(2)* of the Code of Judicial Conduct.

BACKGROUND INFORMATION: The Committee considered the following facts which were furnished in connection with this inquiry: The Congress adopted "Developmental Disabilities Bill of Rights and Assistance Act" (P.L. 94-103), some of the pertinent provisions of which now appear in 42 U.S.C.A. subsec. 6012. The Governor designated the State Bar of Texas to act as the planning agent. The State Bar ordered the creation of Advocacy, Inc., as the vehicle whereby its delegated duties would be accomplished. It reserved the right to appoint six of an eleven-member board of directors of the corporation. The Board will set broad policies only and will have no operating functions.

ANSWER: Based upon the limited information available, the Committee is of the opinion that membership upon the Board of Directors of Advocacy, Inc., would not be in contravention of any of the canons of Judicial Conduct, provided such membership poses no conflict with judicial duties and responsibilities.

QUESTION: Should a judge recuse or disqualify himself in a case involving Southwestern Bell Telephone Company when he owns shares of stock in American Telephone & Telegraph Company?

ASSUMED FACTS: In preparing our answer we have assumed that AT&T has more than six hundred million shares of stock outstanding in the hands of nearly three million stockholders; that the judge owned less than ten shares having a gross market value of approximately $500 and an annual dividend payment of less than $35. We have further assumed that AT&T owns all or substantially all of the capital stock of Southwestern Bell.

ANSWER: Your Committee does not have authority to pass upon the question of whether or not the judge is disqualified. The Constitution (Art. 5, Sec. 11) and the statute (Art. 15, V.A.C.S.) speak to the disqualification of a judge. The determination of disqualification is a judicial function. See authorities collated in the concurring opinion in City of Pasadena v. State, 428 S.W.2d 388, 400 (Tex. Civ. App.--Houston [1st Dist.] 1967), reversed on other grounds, 332 S.W.2d 325 (Tex. 1969). See also, 25 A.L.R. 3d 1331, 1339. We decline to pass upon whether a judge, under these enactments, must note his disqualification to participate in the case.

On the other hand, whether or not a judge should recuse himself from a pending litigation presents a question within the authority of this Committee since it is germane to Canon 3C(1)(c)* and 3C(3)(b).* The Committee is of the opinion that neither of the cited sections of Canon 3C* requires the judge to recuse himself from participation in a case involving Southwestern Bell Telephone Company. His financial interest, as defined in Canon 3C(3)(b),* could not be substantially affected by the outcome of the proceedings, as provided in Canon 3C(1)(c).*

QUESTION: May a judge continue to serve upon the Texas Commission on the Status of Women without violating the Code of Judicial Conduct?

ASSUMED FACTS: The Commission was created by Executive Order D.B. No. 32, dated August 11, 1977, with the duties and authorities of the members defined in Section II of the order. These duties are broadly defined and intended to develop recommendations for policies and programs which will achieve equal opportunity for women throughout the state.

ANSWER: Based upon the information available, the Commission is of the opinion that membership upon the Texas Commission on the Status of Women would not be in contravention of any of the canons of Judicial Conduct, provided such service poses no conflict with judicial duties or responsibilities.

QUESTION: Does a judge violate the Code of Judicial Conduct in participating in the trial of a case when one of the lawyers is a member of a firm in which his child is also a partner?

ANSWER: Subject to the opening words in Canon 3C(1),* "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to, instances where: [followed by three subdivisions]," the Committee is of the unanimous opinion that the question should be answered in the negative.

Canon 3C(1),* and subdivisions (a), (b), and (c) thereof were lifted word for word from the Canons of Judicial Ethics adopted by the American Bar Association in 1982. We are of the opinion that it is significant that ABA Canon 3C(1)* contains a fourth subdivision which is not to be found in our canons, reading as follows:

"(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person:

Professor E. Wayne Thode, reporter for the ABA committee which formulated the ABA canons, comments on subdivision (d) of the ABA canon, supra, in "Reporter's Notes to Code of Judicial Conduct" (ABA, 1973), p. 15:

"The fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that "his impartiality might reasonably be questioned" under Canon 3C(1), or that the lawyer-relative is known by the judge to have an interest in the law firm that could be "substantially affected by the outcome of the proceeding" under Canon 3C(1)(d)(iii)* may require his disqualification."

The Committee adopts Professor Thode's analysis as applicable to the Texas Code of Judicial Conduct.

QUESTION: Does a judge violate Canon 3B(4)* by the appointment of his bailiff as investigator to make social studies in adoption cases when: such appointment is made with the consent of all counsel in the case and only in contested matters; and where the prior results were found to be excellent, the task performed diligently, and economically?

ANSWER: Upon the basis of recited facts, it is the unanimous opinion of the Committee that such action is not violative of the cited provision of the Code of Judicial Conduct.

Judicial Ethics Opinions

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