MAY A JUDGE REQUIRE DONATIONS TO SPECIFIC CHARITY?

Ethics Opinion 241 (1999)

FACTS:  A trial judge requires defendants in certain cases to donate items (such as toys, clothing, diapers, and food) to specific charities or crime victim groups as a condition of community supervision.  She also orders such charitable donations pursuant to plea bargains in which the defendant has agreed to make such donations, and grants dismissals when she knows the state has required the defendant to make donations as a condition of the dismissal.  The charities vary each month.

QUESTION:  Does the Code of Judicial Conduct permit a judge to order such charitable donations, on her own volition or as part of a plea bargain, or to grant a motion to dismiss knowing that the state has required the defendant to make a charitable donation?

ANSWER:  The Code of Criminal Procedure and the case law govern the trial court's discretion to impose conditions of community supervision.  See, e.g., Article 42.12, §§ 11(a) & (b), and annotations.  These statutes are interpreted by the courts and not by the ethics committee.  The committee answers questions of ethics and not questions of law.  See Opinions 79 & 175.

The judge must not only act within the legal limits set by statutes and case law but also within the ethical standards set by the code of judicial conduct, which restrict a judges freedom to single out certain charities and private organizations for court-ordered benefits.  Canon 2B forbids judges to lend the prestige of their judicial office to advance the private interests of others.  In an analogous situation, the committee has ruled in Opinion 118 that under Canon 2B when a defendant has elected to take a driver safety course in lieu of other penalty, the trial judge may not designate a specific agency if there is more than one qualified agency to choose from.  Judicial power should not be used to force litigants to provide gifts or services to specified charities, or to other organizations; judges should not be choosing among competing charities.

MUNICIPAL JUDGE SERVING AS CERTIFIED PEACE OFFICER,

BAILIFF, DEFENSE AND/OR PROSECUTING ATTORNEY

Ethics Opinion 242 (1999)

QUESTION 1:  Can a Municipal Court Judge be employed as a certified peace officer/bailiff?

ANSWER 1:  No.  A Municipal Court Judge may not be employed as a certified peace officer/bailiff.  A Municipal Court Judge presides over criminal actions in which the State's primary witness is a certified peace officer.  This would create an appearance of impropriety in violation of Canon 2A, which provides, "a judge shall comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."  Such conduct would also be in violation of Canon 4A(1), 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."

QUESTION 2:  Can a peace officer serve as a Municipal Court Judge?

ANSWER 2:  Yes, a certified peace officer may serve as a Municipal Court Judge only in the event he/she is totally on inactive status as a peace officer.

QUESTION 3:  Can a lawyer serve both as a part-time Municipal Court Judge for one city  and a part-time prosecutor for another?

ANSWER 3:  Yes.  Canon 6C(1)(d) allows a Municipal Court Judge to practice law if the judge is an attorney.  Pursuant to this Canon, the judge would not be permitted to prosecute in the Court on which the judge serves, nor would he/she be permitted to prosecute, in any court, any case related to a matter heard as a judge.

QUESTION 4:  Can a lawyer serve as a part-time Municipal Court Judge and continue his practice as a defense lawyer in the same area?

ANSWER 4:  Yes.  See answer to Question 3.

JUSTICE OF THE PEACE AS SALES TAX COORDINATOR

Ethics Opinion 243 (1999)

QUESTION:  May a Justice of the Peace act as a Sales Tax Coordinator?  The duties would include: 1)  developing, coordinating and preparing sales tax forms; 2) assisting the city in meeting with any business to evaluate sales tax issues and negotiate with the local businesses the terms and conditions of sale tax sourcing; 3) issue sales tax reports on a monthly basis; 4) coordinate with businesses the filing of necessary documents with the State; and 5) make recommendations to the city council about sales tax collections matters.  The Justice of the Peace would not be acting in any capacity as a tax collector.

ANSWER:  No.  Such activity would violate Canon 3B which provides that , "A judge should not lend the prestige of judicial office to advance the private interest of the judge or others."  Meeting with business people as Sales tax Coordinator would inevitably cause some business people, who are also litigants in the judge's court, to question the impartiality of the judge in cases involving that business person or to perceive that eh judge is lending the prestige of the judge's office to the private interest of the city.

Further, Canon 4D(1) says that, "A judge shall refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality ...or involve the judge in frequent transaction with lawyers or persons likely to come before the court on which the judge serves."  Since both the city and the business taxpayers are persons likely to come before the court on which the judge serves, it is best that the Justice of the Peace not also serve as the city's Sales Tax Coordinator.

JUDGES TO GIVE AWARD TO PRACTICING LAWYER

Ethics Opinion 244 (1999)

QUESTION:  May a group of judges give an award to honor a deceased member of the Judiciary?  The recipient would be an outstanding lawyer that practices before them and would be named on plaque on permanent display.

ANSWER:  No.  This would indicate that this lawyer held some special position with the local judiciary.  Canon 2 requires that a judge should act at all times in a manner that promotes public confidence in the impartiality of the judiciary.

JUDGE ON BOARD OF NON-PROFIT CORPORATION

Ethics Opinion 245 (1999)

QUESTION:  May a judge serve as director of a private, non-profit corporation supported by public and private funds.  The purpose of the corporation is to provide necessaries for CPS children.  The judge would do no fund raising.  The judge's name would appear on the letterhead as a director on a fund raising letter.  Some of the children benefitting from the program could appear in the judge's court.

ANSWER:  Yes.  Canon 4C(2) specifically allows the judge's name to appear on the letterhead of the organization's fund raising letter.  The committee sees no conflict with children who benefit from the organization appearing in the judge's court.

JUDGE SERVING AS VISITING JUDGE WHILE SERVING ON

TEXAS BOARD OF CRIMINAL JUSTICE

Ethics Opinion 246 (1999)*

QUESTION:   May a retired judge who is eligible for judicial service be appointed to hear civil and family cases while serving on the Texas Board of Criminal Justice?

ANSWER:    No, The Code of Judicial Conduct (the Code) prohibits such activity.  Service on the Board by a sitting or retired judge would violate Canon 4A and 4H* of the Code.

Canon 4A of the Code provides:

"A judge shall conduct all of the judge's extra-judicial activities so that they do not:

(1)   cast reasonable doubt on the judge's capacity to act impartially as a judge; or

(2)   interfere with the proper performance of judicial duties."

Canon 4H* of the Code provides in part:

"A judge should not accept appointment to a governmental committee, commission, or other position 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."

Canon 6F of the Code provides:

"A Senior Judge, or a former district judge or a retired or former statutory or county court judge who has consented to be subject to assignment as a judicial officer:

(1)  shall comply with all the provisions of this Code except he or she is not required to comply with Canon 4D(2), 4E, 4F, 4G, or 4H*, but,

(2)  should refrain from judicial service during the period of an extra-judicial appointment permitted by Canon 4H."*

The Texas Board of Criminal Justice governs the Texas Department of Criminal Justice, TEX  GOV'T CODE 492.001 (1998).  The duties of the Board include employment of the Executive Director of the Department, supervising the Executive Director, and approving the operating budget of the department, TEX. GOV'T CODE 492.013 (b), (c), (1998).

*Now see amended Canon 4H.  The Supreme Court's comment to the amendment provides, "This change is to clarify that a judge may serve on the Texas Board of Criminal Justice."

RESPONSIBILITY OF JUDGE TO NOTIFY IMMIGRATION

DEPARTMENT OF UNDOCUMENTED ALIEN

Ethics Opinion 247 (1999)

FACTS:   A judge learns from the evidence during trial that a witness or party is an undocumented alien.

QUESTION: Does the code require the judge to report the individual to the Immigration and Naturalization Service?  Does the code prevent the judge from making such a report?

ANSWER:  No to both questions.  Some statutes may require judges to report law violations to the proper authorities.  This committee does not interpret statutes; it only issues opinions interpreting the Code of Judicial Conduct.  Canon 3D specifies what judges must do when they learn that another judge has violated the code, or that a lawyer has violated the rules of professional conduct.  But the code neither requires judges to report criminal violations by witnesses or parties nor prevents them from reporting violations.  The committee therefore concludes that the judge's obligations are not governed by the code.

MAY COURTS USE A LAW FIRM'S WEB SITE TO POST COURT INFORMATION?

Ethics Opinion 248 (1999)

FACTS:   A law firm offers to let the local courts post their dockets, regularly updated by court personnel, on the firm's web site.  In accessing the web site, users would be exposed briefly to the firm's advertisement.

QUESTION:    Would this arrangement violate the code?

ANSWER:   Yes.  Court use of a law firm's web site would violate Canon 2B, which says: "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."

MAY A JUDGE SERVE AS CHAIRPERSON OF FUND RAISING EVENT

FOR NON-PROFIT GROUP?

Ethics Opinion 249 (1999)

QUESTION:  May a Judge serve as the Chairperson of the annual fund raiser for a non-profit charity organization?

ANSWER:  No, the Code does not permit a Judge to act as chairperson of a charities fund raising event.  Canon 4C(2) prohibits fund raising by a judge but does allow a judge to be a speaker or guest of honor.  In analyzing this activity it appears to the committee that a judge cannot act as chair because this position entails real duties (as compared with an honorary chair with no real duties) and is so inextricably intertwined with the fund raising as to constitute prohibited behavior.

MAY A JUDGE OR JUDICIAL CANDIDATE ANSWER QUESTIONS

REGARDING PARTY'S PLATFORM?

Ethics Opinion 250 (1999)

QUESTION:  May a Judge or Judicial Candidate answer questions propounded by a political party regarding the judge/candidate's position regarding specific planks of the parties' platform?

ANSWER:  No,  Judges are prohibited under the code of judicial conduct from answering such questionnaires.  Canon 5 (1) states "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 is being sought or held... ."  Additionally Canon 5 (2) (1)states a judge or judicial candidate shall not: "make pledges or promises of conduct in office regarding judicial duties other than the faithful and impartial performance of the duties of the office..."

In the event a judge answered such questions, in addition to violating the code of judicial conduct, the judge might be subject to being recused from any case dealing with the subject matter of the question.