ATTORNEY GENERAL OF TEXAS GREG ABBOTT

January 14, 2009

The Honorable D. Matt Bingham Smith County Criminal District Attorney 100 North Broadway, 4th Floor Tyler, Texas 75702

Dear Mr. Bingham: Opinion No. GA-0691 Re: Whether a statejudge is authorized to permit felony and misdemeanor probationers to travel temporarily outside the state or to reside outside the state (RQ-0723-GA)

You asktwo questions relatedto ajudge's authorityto grantprobationerspermissiontotravel or reside outside ofthe state and the· potential liability that may result therefrom. l You first ask whether article 42.12 ofthe Code ofCriminal Procedure authorizesjudges to allow probationers to travel or relocate outside ofthe state. 2 See Request Letter at 2. In article 42.12, the Legislature provided courts with broad discretion to set the terms ofa defendant's community supervision: Thejudge ofthe court havingjurisdiction ofthe case shall determine the conditions ofcommunity supervisionandmay, atanytime, during the period ofcommunity supervision alter or modify the conditions. Thejudge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant. TEX. CODE CRIM. PROC. ANN. art. 42.12, § II(a) (Vernon Supp. 2008). The Legislature included in its non-exhaustive list ofpossible conditions a condition that the defendant "[r]emain within a specifiedplace." Id. at § 11 (a)(7). The Legislature also providedthat "[a]nydefendantwho removes himself from the state without permission of the judge having jurisdiction of the case shall be considered a fugitive fromjustice and shall be subject to extradition as provided by law." Id. § 17(b). By authorizingjudges to order defendants to remain in a specified place and to prevent defendants from leaving the state without permission, the Legislature authorizedjudges to grant permission for those same defendants to travel or relocate. Thus, through article 42.12, the Legislature has givenjudges broad discretion to issue orders permitting probationers to travel or relocate outside the state. lRequest Letter (available at http://www.texasattorneygeneral.gov).

2Although you ask about "probation," article 42.12 instead uses the term "community supervision" to refer to probation in its various forms. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 2(2) (Vernon Supp. 2008).The Honorable D. Matt Bingham

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Your second question asks whether other states must "recognize the full scope of judicial immunity granted by Texas tojudges" in instances where thosejudges may be sued for allowing a probationerto travel orrelocate outside ofthe state. See Request Letter at 2. We have been unable to find any authority directly addressing this question. However, established federal lawrecognizes that"judges
... are notliable to civil actions fortheirjudicial acts, evenwhen such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." 

### Stump v. Sparkman, 435 U.S. 349,355-56 (1978); Bradley v. Fisher, 80 U.S. 335,351 (1871). In instances similar to that about which you inquire, state courts have found immunity to exist through the doctrine ofcomity. See, e.g., Hansen v. 

### Scott, 687 N.W.2d 247, 250 (N.D. 2004). We accordingly find a basis by which courts ofother states could recognize the immunity granted to Texasjudges for theirjudicial acts; however"such decisions would, in the first instance, be decided byjudges of other states.The Honorable D. Matt Bingham

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SUMMARY Through Code of Criminal Procedure article 42.12, the Legislature has authorized judges to determine the conditions of community supervision, including conditions about where the probationer may live and travel. This provision givesjudges broad discretionto issue orders permittingprobationers to travel orrelocate outside the state. Established common law provides thatjudges are not liable to civil actions for theirjudicial acts, and thus, it is likely that courts ofother states would recognize the full scope ofjudicial immunity granted to Texasjudges. However, this is a question for those courts to decide in the first instance. Very truly yours,

ANDREW WEBER First Assistant Attorney General JONATHAN K. FRELS Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Virginia K. Hoelscher Assistant Attorney General, Opinion Committee