JUDGE ON THANK YOU PAGE IN POLITICAL PARTY

STATE CONVENTION FOR CONTRIBUTION

Ethics Opinion No. 231 (1998)

QUESTION:  May a judge be publicly thanked in a political party state convention program for contributing to the cost of a dinner provided to young people who served as pages and sergeants-at-arms at the state convention?

ANSWER:  Yes. Canon 5 states, in part, that a judge may indicate support for a political party. The presence of a judge's name on a list of contributors to a dinner sponsored by a political party is permitted by the Canons.

APPOINTED JUDGE LISTED AS "JUDGE" IN CAMPAIGN MATERIAL

Ethics Opinion No. 232 (1998)

QUESTION:   May any of the following individuals refer to themselves as "judge" in campaign material (including public forums) when running for elected judicial office-- family law associate judge, criminal law magistrate, juvenile referee, jail magistrate, Title IV master?

ANSWER:  The Code does not dictate whether such individuals are considered "judges". Reference to appropriate statutes or constitutional provisions may be required to make that determination. The Committee notes, however, that Canon 5(2)(ii) provides that a judicial candidate shall not knowingly or recklessly misrepresent the candidate's identity, qualifications, or present position.

SITTING JUDGE COMPLETING MEDIATION TRAINING

Ethics Opinion No. 233 (1998)

QUESTION:  May a sitting judge, as part of a mediation training program, (1) observe three mediation sessions conducted by other persons serving as mediators, and (2) conduct two pro bono mediations, so long as the mediations would not be in connection with any case pending in the judge's court and the judge would receive no compensation for her services?

ANSWER:  Yes. A sitting judge may observe mediation sessions conducted by another mediator and may, without compensation, serve as a mediator. Canon 4.F provides: "An active full-time judge shall not act as an arbitrator or mediator for compensation outside the judicial system, but a judge may encourage settlement in the performance of official duties." Canon 3B.(8)(b) concerning ex-parte communications does not prohibit a judge from "conferring separately with the parties and/or their lawyers in an effort to mediate or settle matters, provided, however, that the judge shall first give notice to all parties and not thereafter hear any contested matters between the parties except with the consent of all parties."

Since Opinion No. 161 in 1993 first addressed the propriety of a judge serving as a mediator, alternative dispute resolution procedures have become more favored as a state policy in numerous legislative enactments, more favored by judges because of their effectiveness in disposing of disputes at every level, more favored by state agencies which now build ADR procedures into many of their rules, and more favored by individuals who include ADR procedures in their agreements and rely on them to resolve more and more of their disagreements. In light of this growing reliance on ADR procedures as an adjunct to traditional forms of adjudication, and in light of the favorable experience of many judges in encouraging and participating in alternative dispute resolution procedures, we withdraw in its entirety our former Opinion 161 and find in the Code no prohibition against an active judge serving as a mediator or arbitrator without compensation so long as the judge follows the guidelines of Canon 3B.(8)(b).

There is no prohibition against an active judge serving as a mediator or arbitrator without compensation so long as the judge follows the guidelines of Canon 3B.(8)(b) and that such a mediation or arbitration does not interfere with the prompt and efficient management of that judge=s own court docket.

COURT ADMINISTRATOR CAMPAIGNING FOR CANDIDATE OF HER CHOICE

Ethics Opinion No. 234 (1998)

QUESTION:  May a court administrator for a judge campaign for political candidates and support referendum issues during non-court hours, when she is away from the courthouse and on her own personal time?

ANSWER:  Yes. Canon 5's prohibition of "inappropriate political activity" applies only to judges and judicial candidates, not to court personnel. Canon 6 does not list court administrators or staff as persons subject to the Code. Although an earlier version of Canon 3C.(2) required court staff to observe "the standards of this Code," since March 1994 Canon 3C.(2) has required judges, as part of their administrative responsibilities, to ensure only that members of their staff observe "the standards of fidelity and diligence" that judges must observe. Canon 3 also instructs judges to ensure that staff and court officials observe other code provisions not at issue in this opinion. See Canon 3B.(4), 3B.(6), 3B.(8), and 3B.(10).

The code does not prohibit political activities by the administrator, provided that she engages in them away from the courthouse, during non-court hours, on her own time, without giving the impression that she speaks for the judge. The administrator must remember that the judge for whom she works cannot lend the prestige of his office to advance the political interests of others [Canon 2B.], indicate his opinions on issues likely to come before his court [Canon 5(l)], or endorse candidates for public office [Canon 5(3)). The administrator must scrupulously avoid suggesting in any way that the judge personally approves of the candidates she endorses or the positions she takes on the issues. She must also schedule her political activities so that they do not interfere with her official duties. Canon 4A.(2).

JUDGE AND POLITICAL ACTIVITIES

Ethics Opinion No. 235 (1998)

FACTS:  A person serving as President of a County Women's Political Caucus and who also serves as the Mayor's appointee and Chair of the Mayor's Commission on the Status of Women will soon be appointed as a part-time Master over the Mental Health cases for a County Court at Law and a Probate Court for the county where she resides. It is anticipated that the Master will preside over hearings two or three days a month.

QUESTION:  Is it a violation of the Code of Judicial Conduct for a Master over mental health cases in a statutory county court to 1) remain as president of a county women's political caucus; and/or 2) remain as Chair of the Mayor's Commission on the Status of Women?

ANSWER:  No, as to both positions.  Under-Canon 6D.(l), a part-time master of a statutory county court is required to comply with all provisions of the Code of Judicial Conduct except, among others, Canon 4H. This exception would permit a part-time master to serve as an appointee to a commission even if it is concerned with issues of fact or policy on matters other than improvement of the law, the legal system or the administration of justice.

There is no direct prohibition in the Code of Judicial Conduct regarding service as president of an organization such as a county woman's political caucus, as long as the master does not authorize the public use of her name endorsing another candidate for any public office under Canon 5(3) or solicit funds under Canon 4C.(2). Additionally, the master must conduct her extrajudicial activities so they do not cast reasonable doubt on her ability to act impartially as a master or interfere with the proper performance of her judicial duties under Canon 4A.(l) and (2).

JUDGE COMPENSATED FOR PERFORMING A MARRIAGE CETEMONY

Ethics Opinion No. 236 (1998)

QUESTION NO. 1:  May a judge receive a fee for performing a marriage ceremony during regular office hours?

QUESTION NO. 2: May a judge charge for weddings, after hours, away from the courthouse?

ANSWER TO BOTH QUESTIONS:

Yes, within reason. Canon 4D.(1) states, in part:

A judge shall refrain from financial and business dealings that . . . exploit

his or her judicial position.

This provision ensures that a judge does not take advantage of his or her judicial office with regard to financial issues.

The Committee considered whether a judge may charge a fee for performing a wedding in Judicial Ethics Op. No. 72. In that opinion, the Committee decided that charging a fee for a wedding would exploit the judge's judicial position in contravention of Canon 5(l) (later renumbered as Canon 4D.(l), with no change in language).

Giving further consideration to the issue, the Committee now withdraws that part of Op. 72 concerning fees. Relevant to our decision is DM-397, issued May 31, 1996. Although the Attorney General's opinion interpreted the law, and although finding conduct legal does not necessarily mean that conduct is also ethical, several holdings in the opinion inform our decision on the ethics questions presently raised.

In DM-397, the Attorney General considered whether a judge could perform marriages, at the office or elsewhere, and whether the judge could charge and keep any fees assessed for this service. Initially, the Family Code authorizes certain state judges to perform marriage ceremonies, thereby denominating performance of a wedding ceremony as a proper judicial function. Next, acceptance of a fee for performing this discretionary judicial function is proper under Section 154.005 of the Local Government Code and JM-22. Last, a fee paid to a judge for performing an official function does not fall within the definition of "honorarium" Thus, a judge authorized to perform a marriage ceremony may collect and retain a fee for performing a marriage ceremony.

With regard to use of the judge's office or court personnel, the Attorney General noted that marriage performance is an officially sanctioned judicial function. As such, weddings may be performed at the judge=s office during business hours, and clerks may assist. A Judge must take care, however, that use of public resources be reasonable in relation to the function being carried out: each judge has many mandatory duties to perform in addition to the discretionary authority to conduct marriages.

We find this logic persuasive with regard to Canon 4D.(l)'s admonishment that judges not exploit their judicial positions. As long as the fees are reasonable and conducting ceremonies during business hours does not unreasonably interfere with required judicial duties, then no ethics violation arises. Judges should not, however, take advantage of their official position to conduct such services, or such activity will constitute exploitation of judicial position and a violation of Canon 4 D.(l).

JUDGE IN FUND RAISING EVENT

Ethics Opinion 237 (1999)

Question:  Judges are invited to participate in a sports event with members of a bar association.  The event is a fund raiser for scholarships given by the bar association.  The Judge's participation is the main attraction used in selling tickets to the event.  May Judges participate in such an event?

Answer: Yes.  The competing issues are found in Canon 4C. (2) which prohibits judicial fund raising but allows a judge to be a speaker or guest of honor at a fund raising event.  It is clear that the judge cannot fund raise directly.  The issue becomes difficult when others are selling tickets (fund-raising) based on judges participation.  It is the committee's opinion that in this instance the participation of the judge is similar to serving as a guest of honor and is therefore not violative of the code.

JUDGE AS FUND RAISER FOR TEXAS CENTER FOR THE JUDICIARY, INC.

Ethics Opinion 238 (1999)

QUESTION:  May a judge solicit contributions to the Texas Center for the Judiciary, Inc., a not-for-profit organization dedicated to the education and service of Texas judges, from individuals, businesses, foundations, and other organizations?  These contributions would be used to promote judicial education and to improve the resources and services provided by the Texas Center for the Judiciary, Inc. to the judiciary.

ANSWER:  Yes.  This is the third opinion on this subject.  In Op. No. 58 (1982), this Committee considered then Canon 4C as an exception to the absolute prohibition against judicial fund raising found in then Canon 5B(2), and

determined that a judge could solicit contributions for the Texas Center for the Judiciary from charitable and educational foundations and other donors who would not ordinarily come before the court.

In 1994, the language found in former Canon 4C as dropped from the Code. Therefore, in 1996, we issued Op. 199, which held that a judge could no longer solicit funds for the Texas Center for the Judiciary and similar organizations.  See Op. 196 (1996).

Effective January 1, 1998, the Supreme Court amended the Code to readopt the language of former Canon 4C, now designated as Canon 4B(2), which provides:

"A judge may assist such an organization [devoted to the improvement of the law, the legal system or the administration of justice] in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities."

Because this language was readopted into the Code, we now follow the reasoning set forth in Op. No. 58 (1982) to hold that once again a judge may assist in raising funds for one of the organizations described in Canon 4B(2), specifically in this case the Texas Center for the Judiciary, Inc.  However, Canon 4B(2) prohibits the judge from Apublic fund raising activities.@  This restricts the manner in which the judge may assist with fund raising, and we adopt the limits set forth in Op. 58:

1.  a judge may solicit contributions only from charitable and educational foundations and other donors who would not ordinarily come before the court;

2.  the organization for which funds are sought must be one which is devoted to the improvement of the law, the legal system, or the administration of justice;

3.  any solicitation by the judge should be made as an authorized representation of the                      organization and not as a personal solicitation; and finally,

4.  any judge assisting a Canon 4B(2) organization must strictly comply with the admonition found in Canon 1 to preserve the integrity and independence of the judiciary and the prohibition in Canon 2B against:

     a.  lending the prestige of office to advance the interests of others, or

     b.  conveying the impression that any donor would be in a position to influence the judge.

MAY A JUDGE LEASE TO ATTORNEYS?

Ethics Opinion 239 (1999)

QUESTION:        At the time a judicial candidate was elected to office, she owned an office building with her sister.  The sister is an attorney and the office building space is leased to attorneys.  May the judge-elect, once she takes office, continue her ownership in the building?  If not, may she be a guarantor on a note securing a mortgage held by the judge's sister on the building that will continue to be leased to attorneys?

ANSWER:    The applicable Code provisions are Canon 4D(l) and (2).  Canon 4D(l) states:

"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."

Canon 4D(2) states: "Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity including the operation of a business."

Consistent with these provisions, the Judge would not violate the Code of Judicial Conduct if she recused herself from cases in her court in which the attorneys who lease space in her building appear.  Similarly, if the Judge chose to guarantee the note held by her sister, the Judge should still recuse herself from cases in her court in which the attorneys who lease space in her building appear.

A problem could arise, however, in a smaller county in which the judge may be the only judge in the county.  In that situation, recusal may be impractical and the judge would be required to either divest herself of the property interest or lease the property only to persons who are not likely to come before the court.

JUDGE ON BOARD OF NON-PROFIT CORPORATION WHICH TRAINS VOLUNTEERS

 AND PAID STAFF TO BE APPOINTED BY THE JUDGE TO SERVE AS

GUARDIANS OF INCAPACITATED PERSONS

Ethics Opinion 240 (1999)

QUESTION:  May a judge serve as a member of a Board of Directors of a non-profit corporation which trains volunteers and employs professional staff to be appointed by the judge to serve as guardians of incapacitated or minor persons?

ANSWER:  No. Canon 4 states that a judge "...shall conduct all of the judge's extra-judicial activities so that they (1) do not cast reasonable doubt on the judge's capacity to act impartially as a judge; or (2) interfere with the proper performance of judicial duties."  The difficulty with the scenario presented is that the qualifications and competence of a guardian must be determined and approved by the judge.  A judge cannot pass on the qualifications and competence of an individual trained by a corporation if the judge is a member of the board of that corporation without creating an appearance of impropriety regarding the judge's capacity to act impartially.  A casual observer could well conclude that the judge would consider anyone trained by "his/her" corporation to be qualified and competent regardless of evidence to the contrary.  It is the appearance of impropriety that must be avoided.  It would make no difference if the judge were a voting or non-voting member of the board.