CONSTITUTIONAL COUNTY JUDGE AS SALES AGENT

Ethics Opinion No. 221 (1998)

QUESTION:  May a Constitutional County Judge become an independent agent in order to sell products and/or services for a communications company and receive commission?

ANSWER:  No. Even though a judge may attempt to separate two careers, when a judge is an independent agent selling products or services for a communications company he may lend the prestige of his office to that position and thereby advance the private interest of himself or his company in violation of Canons 2B and 4D(l).

Furthermore, these activities could interfere with the judge's proper performance of judicial duties in violation of Canons 2A, 3A and 4A(2) in that his acts may not promote public confidence in the judiciary and his selling duties may take precedence over judicial duties or interfere with the proper performance of judicial duties.

LETTERS OF RECOMMENDATION

Ethics Opinion No. 222 (1998)

QUESTION:  May a judge write a letter of recommendation for (1) a secretary in the office; (2) a prosecutor who is applying for a position with a law firm; (3) a fellow judge, who has made application for another judicial position?

ANSWER:  Yes. Such letters may be written. The applicable section of the Code of Judicial Conduct is 2B, which states that a judge should not lend the prestige of judicial office to advance the private interests of the judge or others. The commentary to Canon 2B of the ABA 1990 Model Code provides:

Although a judge should be sensitive to possible abuse of the prestige of office, a judge may provide a letter of recommendation based on the judge's personal knowledge. A judge also may permit the use of the judge's name as a reference, and respond to a request for a personal recommendation when solicited by a selection authority such as a prospective employer, judicial selection committee or law school admissions office. A judge may also provide information in response to a request from a sentencing judge or probation or corrections officer. The Committee is of the opinion that so long as letters are based on the judge's own personal knowledge and are written to a specific person the letters may be written. It is not appropriate for a judge to write a "to whom it may concern" letter because of the lack of knowledge by the judge as to its specific use.

MASTER ON LEAVE REQUIRED TO COMPLY WITH CODE

Ethics Opinion No. 223 (1998)

QUESTION:  An Associate Judge (Master) appointed by a District Judge is seriously considering running for district judge. She wishes to take leave from her current position beginning on the date she files as a candidate. While on leave she will not act in any judicial capacity nor will she receive pay or benefits. She would like to continue coverage for county group health insurance, the cost of which would be borne completely by her. She may have accrued vacation and sick leave which would be reinstated if and when she returns to her job as Associate Judge.  While she is on leave without pay:

1 . Is she prohibited from working for pay in a job unrelated to the law?

2. Is there any kind of law-related work for pay which she cannot perform? If so, what?

3. Can she practice law or act as a mediator? Can she associate with a law firm whose lawyers appear in court or accept court ordered mediations?

ANSWER: A full-time district court master must comply with all provisions of the Code of Judicial Conduct whether on leave or not. A leave of absence is not a complete separation from employment; it connotes a continuity of employment status. As a result, the master on leave cannot take any employment prohibited by Canon 4.

J.P. AND CONSTABLES ASSOCIATION ENDORSING POLITICAL CANDIDATE

Ethics Opinion No. 224 (1998)

QUESTION:  May a Justice of the Peace and Constables Association endorse candidates for political office?

ANSWER:  No. Canon 5 states, in part, that a judge shall not authorize the public use of his or her name endorsing another candidate for any public office. Judges as a group cannot do what judges individually cannot do even if the group consists of some non-judicial members.

JUDICIAL NEUTRALITY PROHIBITS  J.P. "WAR ON HOT CHECKS"

Ethics Opinion No. 225 (1998)

QUESTION NO. 1:   May a county-wide decal issued as a part of a "declared war on hot checks" that includes the names of the district attorney, sheriff and constable and contains a generic warning against passing hot checks also include the justice of the peace's name?

ANSWER:  No. Canon 3A provides that a judge must act at all times in a manner that promotes impartiality of the judiciary. If a justice of the peace allows his or her name to appear on a decal, along with the names of the prosecutor and law enforcement officials, the clear implication is that the judge is acting in conjunction with these entities to prevent and prosecute issuance of hot checks. This violates Canon 3A by implying that the judge is partial to law enforcement, the judge will assume the accused is guilty, and that the judge is indeed assisting law enforcement in hot check prosecution efforts. Thus, a judge should not permit use of his or her name in a general law enforcement program.

QUESTION NO. 2:   Justices of the peace across Texas "in reality . . .  conduct an executive branch prosecutorial function in hot check cases." The victim files the complaint and all relevant evidence in the justice of the peace office, the J.P. office then investigates and prosecutes the case by interviewing potential witnesses and contacting the accused "to pay restitution . . . ." Is this appropriate judicial conduct?

ANSWER:  Canon 1 of the Code of Judicial Conduct states that a judge should observe standards to preserve the independence of the judiciary. When Canon 1 speaks of independence, it refers to the judicial branch of government that must remain separate from the other two branches under Article II, Sec. 1, of the Texas Constitution. The executive branch includes prosecutors, sheriffs and constables; therefore, a judge cannot at any time act as a prosecutor in any capacity.

If the inquiring justice of the peace, or any judge, is prosecuting cases within its jurisdiction, especially contacting the accused for guilty plea arrangements, then the judge is absolutely, unequivocally, and indefensibly violating both the Code of Judicial Conduct and the Texas Constitution. Further activity in this vein must immediately cease.

JUDGE AS ATTORNEY FOR SELF, SPOUSE AND/OR CORPORATION

Ethics Opinion No. 226 (1998)

QUESTION:   A judge is sued individually, along with her spouse and a corporation that the judge and her spouse solely own. May the judge represent herself, her spouse and/or the corporation in the suit as attorney of record?

ANSWER:  Yes and No. A judge may always represent herself in a legal action. Whether she is permitted to represent her spouse or the corporation depends on the type of judge being sued. Canon 4G and Canon 6 must be looked at together for the answer. Canon 4G provides that a judge may not practice law but may represent herself and, without compensation, give legal advice to and draft or review documents for a member of the judge's family.  Judges required to comply with Canon 4G (appellate judges at all levels, district and county court at law judges) may not represent their spouse or the corporation.

With minor exceptions, Canon 4G does not apply to a County Judge, a J.P. or a municipal judge. The Code of Judicial Conduct does not prohibit these judges from representing their spouse, and the corporation and themselves.

JUDGE OR JUDICIAL CANDIDATE OWNED BUSINESS

Opinion No. 227 (1999)

A candidate for judicial office owns, with his spouse, the only abstract title insurance company in the county.

QUESTION 1:  Is this business relationship permissible under the code for a judicial candidate?   For a sitting judge?

ANSWER 1:  Yes, as to the candidate and no as to the sitting judge.

The Code's only requirement of a judicial candidate is that the candidate refrain from inappropriate political activity as described in Canon 5.  See Canon 6 for list of those covered by the Code.

It is the belief of the committee that a sitting judge is not permitted to maintain these business interests due to the provisions of Canon 4.  While Canon 4(D)(2) does allow a judge to operate a business, not publicly held, this provision is subject to 4(D)(1).  Canon 4(D)(1) requires a judge to refrain from financial and business dealings which tend to reflect adversely on the judge's impartiality, interfere with the proper performance of 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 the judge serves.  The nature of this business, coupled with the fact it is the only abstract title company in the county, and the court is one of general jurisdiction, make such a conflict inevitable.  See Opinion 23.

QUESTION 2:  Assuming a candidate who owns an abstract title insurance company or whose wife owns such business is elected, would the judge or the spouse be obligated to divest themselves of these business interests?

ANSWER  2:  Yes, under the reasoning in the answer to Question 1, the elected judge should divest himself of the business in a reasonable fashion.  Canon 7 requires that a person to whom the code becomes applicable, should arrange his or her affairs as soon as reasonable to comply with the code.  

In the event that the spouse of a sitting judge owns  an abstract business, the judge must recuse himself in any case involving a lawyer or other person who does business with the judge's spouse.  It is the duty of the judge to be informed about the economic interests of any family member residing in the judge's household.  If the spouse's interest causes frequent disqualification, then Canon 4D(3) requires a judge to divest himself of economic interests as soon as the judge can do so without serious financial detriment.

QUESTION 3:  May a sitting judge acquire an interest in a private mortgage company?

ANSWER 3:  Yes, so long as the requirements of Canon 4(D) are followed.  The ownership, whether as an active participant or an investor only, must not be in a company that is "publicly owned" (i.e. has more than 10 unrelated owners), must not exploit the judge's position or involve the judge in frequent transactions with persons likely to come before the court.  The Canon requires that a judge's investments should be managed so as to minimize the number of cases in which the judge is disqualified.

QUESTION 4:  May a judge who owns a corporation which operates a title company located outside the judge's district, lease the company to a private company?

ANSWER 4:  Yes, with the same restrictions as enumerated in answer (3) above.  See Opinion 179.

QUESTION 5:  Could potential violations in any of the above situations be remedied by a blind trust?

ANSWER 5:  No.  A blind trust operates by investing a judge's assets without the judge having any knowledge of where his/her assets are invested.  The blind trust is not an effective tool for shielding the judge from knowledge of his investments when the judge's asset is a company doing business such as the abstract and title company described here.

The committee would comment that it is difficult to answer these inquiries in the abstract.  Each situation would depend upon its own circumstances, the types of cases a judge hears, and the effect of the ownership interests on those who appear before the judge, both in reality and in perception.  The committee cautions any judge or candidate to evaluate each such situation very carefully.  Besides the above referenced Canons, each such situation should be judged with Canons 1 and 2 in mind.

JUSTICE OF THE PEACE AS BOARD MEMBER OF WATER SUPPLY CORPORATION

Ethics Opinion No. 228 (1998)

QUESTION:  May a justice of the peace serve as a member of the board of directors of a water supply corporation if the customers are located in the justice's precinct?

ANSWER:  No. For a justice of the peace to serve as a director under such circumstances would be a violation of Canon 4D(l). This provides that "a judge shall refrain from financial and business dealings that tend to reflect adversely on the judge's 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 the judge serves." A director of a corporation occupies a position of a fiduciary toward the corporation for its shareholders. A justice of the peace accepting such director's position could be involved in financial and business dealings which would tend to reflect adversely on his impartiality as a judge, and he could be involved in frequent transactions with persons that would likely be before him in court.

For a justice of the peace to so serve as director would also be violative of Canon 4A(l), which provides that "a judge shall conduct all of the judge's extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge."

It should be noted that Canon 4D(2) does not apply here because the judge asking the question is a justice of the peace. See Canon 6C(l)(b).

JUDGE MAY NOT SOLICIT FUNDS FOR BANQUET

Ethics Opinion No. 229 (1998)

QUESTION:  May a municipal judge serve as the Director of the County Crime Commission? The position receives a $500 per month salary if the Commission has the funds. In those months that there are no funds the Director is expected to donate his time. The major duty is to organize and collect funds for an annual banquet. The banquet is held to recognize area law enforcement personnel.

ANSWER:  No. Canon 4C(2) states that, "A judge shall not solicit funds for any educational, religious, charitable, fraternal or civic organization.. ." Although municipal court judges and justices of the peace are exempted from portions of Canon 4, they are not exempted from 4C(2).

JUDGE AS ASSISTANT TO COUNTY PARTY CHAIR FOR APPOINTMENTS

Ethics Opinion No. 230 (1998)

QUESTION:  May a judge serve as Special Assistant to the County Party Chair responsible for Appointments? The position would require the judge to communicate the process of applying for various county, city and state governmental appointments as well as communicating what appointment positions are available.

ANSWER:  No. A judge may not act in this capacity due to the public nature of the position. It places the judge in the position of a de facto political power broker. This is a violation of Canon 2 which states that a judge should not lend the prestige of judicial office to advance the private interests of other; nor shall a judge permit others to convey the impression that they are in a special position to influence the judge.