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 state judge is authorized to permit

felony and misdemeanor probationers to travel

temporarily outside the state or to reside outside

the state (RQ-0723-GA)

You ask two questionsrelated to ajudge's authority to grant probationers permission to travel

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 of the state.2 See Request Letter at 2. In article 42.12, the Legislature

provided courts with broad discretion to set the terms of a defendant's community supervision:

The judge ofthe court having jurisdiction ofthe case shall determine

the conditions ofcommunity supervision andmay, at any time, during

the period of community supervision alter or modify the conditions.

The judge 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 of possible conditions a condition that the defendant "[r]emain within a

specified place." Id. at § 11 (a)(7). The Legislature also provided that "[a]ny defendant who removes

himself from the state without permission of the judge having jurisdiction of the case shall

be considered a fugitive from justice and shall be subject to extradition as provided by law." Id.

§ 17(b). By authorizing judges to order defendants to remain in a specified place and to prevent

defendants from leaving the state without permission, the Legislature authorized judges to grant

permission for those same defendants to travel or relocate. Thus, through article 42.12, the

Legislature has given judges 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 - Page 2 (GA-0691)

Your second question asks whether other states must "recognize the full scope ofjudicial

immunity granted by Texas to judges" in instances where those judges may be sued for allowing a

probationer to travel or relocate outside ofthe state. See Request Letter at 2. We have been unable

to find any authority directly addressing this question. However, established federal law recognizes

that"judges ... are not liable to civil actions for theirjudicial acts, even when 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 of comity. See, e.g., Hansen v. Scott, 687 N.W.2d 247, 250 (N.D. 2004). We accordingly

find a basis by which courts of other states could recognize the immunity granted to Texas judges

for theirjudicial acts; however"such decisions would, in the first instance, be decided by judges of

other states.
The Honorable D. Matt Bingham - Page 3 (GA-0691)

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 gives judges broad

discretion to issue orders permitting probationersto travel orrelocate

outside the state.

Established common law provides that judges are not liable

to civil actions for theirjudicial acts, and thus, it is likely that courts

of other 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