SERVICE ON STATE SCHOOL REVIEW BOARD

 

Opinion No. 71 (1983)

 

QUESTION: May a judge serve on the Institutional Review Board of the Mexia State School?

 

FACTS: The Mexia State School is a state eleemosynary institution.  Tex. Rev. Civ. Stat. Art 3263c (Vernon 1968). The Institutional Review Board, appointed by the superintendent of the school, is responsible generally for reviewing and overseeing research at the school.

 

ANSWER: The committee is of the opinion that service on the Mexia State School Institutional Review Board would violate the Code of Judicial Conduct.  Canon 5G* restricts a judge's service on governmental boards by providing that a judge should not accept appointment to a governmental committee, commission or other position that is concerend with issues of fact or policy on matters other than the  improvement of the law, the legal system, or the administration of justice.

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* Now see Canon 4H.

 

 

ADVERTISING AND CHARGING FOR MARRIAGE SERVICES

 

Opinion No. 72

 

QUESTION:  1) Can a judge place an advertisement in the personals section of the newspaper classified ads to inform the public that he will perform marriages?  The ad would read either "Weddings by Judge - home phone number," or "Weddings Performed - home phone number."

2) Can a judge charge a fee to perform a wedding?  Does the location of the wedding matter as to where there can be a fee, i.e., in chambers vs. a house call or other private place?

 

ANSWER: The Committee is of the opinion that a judge who advertises the performance of weddings and charges fees for weddings violates the Code of Judicial Conduct.  Section 1.83 of the Family Code (Vernon Supp. 1982) authorizes a judge to perform weddings.  To advertise and charge fees for a service the judge can perform only because of judicial office violates Canon 5C(1)*  which requires a judge to refrain from financial dealings that exploit his judicial position.

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* Now see Canon 4D(1).

 

 

ENDORSEMENT OF POLITICAL CANDIDATE

 

Opinion No. 73 (1984)

 

QUESTION: Does a judge subject to the Code of Judicial Conduct violate the Code by publicly endorsing a candidate for public office?

 

ANSWER: The Committee is of the opinion that such action would violate the Code of Judicial Conduct.  The heading under Canon 7* states that a judge should refrain from political activity inappropriate to his judicial office.  Paragraph A of Canon 7 states: "Political Conduct in General.  Any candidate for judicial office, including an incumbent judge, and others acting on his behalf, should refrain from all conduct which might tend to arouse reasonable belief that he is using the power or prestige of his judicial position to promote his own candidacy."

The essence of Canon 7A is that a judge should not use the prestige of his office to advance his own private interests.  It naturally follows that if he cannot use his power or prestige to help his own candidacy, he should not do this for others.

Canon 2B is similar to 7A in that it prohibits a judge from lending the prestige of his office to advance the private interest of others.

Further, Canon 1 directs a judge to maintain the independence of the judiciary, and Canon  2A requires a judge to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

It is difficult for a judge to realistically separate the prestige of his office from his personal affairs.  Thus, the Committee is of the opinion that the public endorsement of another person=s candidacy, of necessity involves the use of the prestige of the judge and the prestige of his office.  Additionally, a judge=s involvement in another person's political race places the judge in a partisan posture and gives the public cause to question the judge's independence.  Thus, the described activity violates the Code of Judicial Conduct.

(Adopted by the Committee on Judicial Ethics the 9^th day of March, 1984, one member disenting.)

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*Now see Canon 5.

 

 

SERVICE ON BAR DISCIPLINARY COMMITTEE

 

Opinion No. 74 (1984)

 

QUESTION: Does a judge violate the Code of Judicial Conduct by serving on the Disciplinary Review Committee of the State Bar of Texas?

 

ANSWER: The Committee is of the opinion that such service does not violate the Code of Judicial Conduct, so long as it does not conflict with or affect the performance of judicial duties.  Canon 4A* permits a judge to participate in activities concerning the law, the legal system and the administration of Justice.  Service on the Disciplinary Review Committee, which oversees and hears appeals from local grievance committees, is clearly an activity that concerns the legal system.  The Committee is aware that Canon 5G** prohibits service on most governmental committees and commissions.  However, that Canon contains an exception for the activities listed in Canon 4A.*

(Approved by the Committe on Judicial Ethics the 20^th day of September, 1984, one judge dissenting.)

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*Now see Canon 4B.

**Now see Canon 4H.

 

 

TELEVISING OF VOIR DIRE EXAMINATION

 

Opinion No. 75  (1984)

 

FACTS: The television program "20/20" wants to film the voir dire examination of a jury panel in a criminal case.  The film will be used in a "20/20" program to educate and inform the public on the voir dire procedure.  The defendant has consented to the filming, which will be done in an unobtrusive manner that does not detract from the dignity of the proceedings.  The film will not be exhibited until after the trial is over.

 

QUESTION: Does a judge violate the Code of Judicial Conduct by permitting the described filming?

 

ANSWER:  The Committee is of the opinion that the trial judge would violate Canon 3A(7)* by permitting the described activity.  That Canon prohibits filming or recording in a courtroom and areas adjacent thereto during sessions of court or recesses between sessions.  Although various exceptions are permitted, the described activity does not fit within the exceptions because there is no assurance that the display of the film will be delayed until all direct appeals have been exhausted (Canon 3A(7)(c)(iii).*

Also, the use of the film in a commercial television program that is displayed to the general public does not satisfy the requirement that "the reproduction will be exhibited only for instructional purposes in educational institutions" (Canon 3A(7)(c)(iv)).*

(Unanimously adopted by the Committee on Judicial Ethics the 6^th day of August, 1984.)

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*Now see Texas Rule of Civil Procedure 18c.

 

 

JUDGE AS DRAFTER OF LEGISLATION

 

Opinion No. 76 (1985)

 

QUESTION: May a judge draft or originate legislation dealing with substantive law?

 

ANSWER: The Committee's answer to the question is "yes."  Canon 4 of the Code of Judicial Conduct permits a judge to engage in activities to improve the law, the legal system and the administration of justice.  Specifically, under paragraph B of Canon 4, a judge may engage in such activities as appearing at a public hearing before an executive or legislative body.  Also the judge may consult with executive or legislative officials on matters concerning the administration of justice.  The Committe considers the foregoing language to encompass the drafting or origination of legislation dealing with substantive law.

 

 

JUDGE AS TRUSTEE OF CHARITABLE TRUST

 

Opinion No. 77 (1985)

 

QUESTION: Would a judge violate the Code of Judicial Conduct if he acts as the sole trustee of a charitable trust created by an individual contributor who is not a member of his family?

 

ANSWER: Canon 5D* provides that a judge should not serve as trustee or other fiduciary except for one or more members of his family.  Although Canon 5B** does permit a judge to serve on the board of directors or trustees of an organization, that type of service is not involved in this question.  The Committee is of the opinion that for a judge to act as a trustee under the circumstances stated by this question would be a violation of Canon 5D.*

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*Now see Canon 4E.

** Now see Canon 4C.

 

 

 

 

 

REMOVAL OF RETAINED ATTORNEY

 

Opinion No. 78 (1985)

 

QUESTION: Under the Code of Judicial Conduct, does a judge have the authority, in a criminal case, to remove a retained attorney for ineffective assistance of counsel?

 

ANSWER: No.  The Committee is of the opinion that the action or removal of an attorney by a judge is a matter of law, not a question of ethics.  Although the Code of Judicial Conduct, Canon 3B(3)* provides that "a judge should take or initiate appropriate disciplinary measures against a lawyer for unprofessional conduct of which the judge may become aware," it does not authorize a judge to remove or take disciplinary action.  The intent of Canon 3B(3)* is to advise a judge that it is unethical for a judge not to fulfill the responsibilities that the law places upon him; in this instance, to initiate appropriate action when he becomes aware of unprofessional conduct by a lawyer.  See Guillory v. State, 557 S.W.2d 118, 121 (Tex. Crim. App. 1977) for types of appropriate action a judge may initiate.

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*Now see Canon 3D(2).

 

 

APPOINTMENT OF MASTER

 

Opinion No. 79 (1985)

 

QUESTION: May a judge appoint an attorney as a master, pursuant to Art. 1918B, V.A.C.S., or Rule 171, Tex. R. Civ. P., where that attorney appears in the judge's court on a regular basis in other unrelated matters?

 

ANSWER: The Committee is of the opinion that this is a question of law as distinguished from a question of ethics.  Whether an attorney is qualified to be appointed a master is a matter of law.  The only foreseeable ethical consideration would be if a  judge knowingly appointed a master who was not qualified or made an appointment in disregard of Canon 3B(4).*