May9,1988

Honorable SamW. Dick Opinion No. JR-898 Criminal District Attorney County Courthouse Re: Authority of aJustice PO* Bend County of the Peace to prescribe Richmond, Texas 77469 community service as a sentencing alternative, and related questions (RQ-1344)

DearMr. Dick:

You ask the following questions:

1. May's Justice of -thePeace provide community service to a defendant as an alternative punishment?

If so,will theJustice of the Peace and/
or the County be liable for injuries sustained by the defendant during community service or fordamages sustained by third parties as a result of the community service?

2. What are the liabilities of the Judge and the County in providing community service in juvenile cases for injuries sustained by the third parties as aresult of the community service?

3. What are the liabilities of the Judge and County inproviding community service as a condition ofprobation inmisdemeanor and felony cases for injuries sustained by the defendant during community service or for damages sustained by third parties as a result of the community service?

4. Can the County include criminal defendants in its workers compensation insurance program and its liability

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insurance program to cover the liabilities during the period of community service?

5. Does the Texas Tort Claims Act exempt the Judge and County from liability for community services?

You note that, while subsection (2)(d) of article 45.54 of the Texas Code ofCriminal Procedure does not specifically provide forcommunity service, the court is given discretion in granting any other reasonable conditions.

Article 45.54 provides
(1)Upon conviction of the defendant of a misdemeanor punishable by fine only, other than a misdemeanor disposed ofby Section 143A, Uniform Act Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil Statutes), the justice may suspend the imposition of the fine and defer final disposition of the case fora period not to exceed 180days.
(2)During said deferral period, the justice may require the defendant to:
(a)post abond in the amount of the fine assessed to secure payment ofthe fine:
(b)pay restitution to thevictim of the offense inan amount not to exceed the fine assessed;
(c)submit to professional counseling: and
Id)comnlv with anv other reasonable condition. other than oavment of all orDart of thefine

(3)At the conclusion of the deferral period, ifthe defendant presents satisfactory evidence that he has complied with the requirements imposed, the justice may dismiss the complaint. Otherwise, the justice may reduce the fine assessed or may then impose the fine assessed. Ifthe complaint is dismissed, a special expense not to

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exceed the amount of the fine assessed may be imposed.

(4)Records relating to acomplaint dismissed asprovided by this article may be expunged under Article 55.01 of this code. (Hmphasisgadded.)

Code Crim. Proc. art. 45.54.

In Attorney General Opinion JM-526 (1986), the following observations were made relative to the legislature's enactment ofarticle 45.54:

The legislature enacted this statute to enable a 'justice' tomake a formof probation available todefendants convicted of offenses with amaximum punishment of a fine not to exceed $200,h Class C misdemeanors. See Acts 1981, 67th‘Leg., ch. 318, 81, at 894 eff. Sept. 1, 1981. Penal Code 912.23. This office has previously characterized article 45.54 as a formof 'probation' although the statute does not use the term. $&R Attorney General Opinion JM-307 (1985);see also Baker &Bubany, 'Probation for Class CMisdemeanors: To Fine orNot to Fine ,isNow the Question,' 22 So. Tex. L.J. 249 (1981). Prior to that time, there was no legislative authorization to allow probation in non-traffic misdemeanor offenses punishable by fine only. .$=g Code Crim. Proc. art. 42.13; see alsoAttorney General Opinion H-1128 (1978).

InAttorney General Opinion JM-307 (1985) it was noted that article 45.54, incontrast to the felony and misdemeanor probation statute, includes no purpose clause
or any other provision stating the goals of itsprocedures for suspending sentences. See Code Crim. Proc. art. 42.12. InAttorney General ?&&ion JM-526 itwas stated that article 45.54 authorizes the requirement that the convicted defendant obtain employment as acondition of the deferral of the fine so lona as the condition of emnlovment isreasonable. Ifadefendant canbe required to obtain employment under article 45.54, the same rationale would tend to support the conclusion that he can be required to render community service so long as that requirement is reasonable. Probation authorized by article 45.54may onlybe applicable when the defendant

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has agreed to the conditions of the deferral. Attorney General Opinion JM-526.

InBaker and Bubany, Probation forClass CMisdemean- ,ors: To Fine rN t to Fine isNow the Ouestion, 22 so. Tex. L.J. 249O (1;81) concern is expressed about the requirement of communi;y service absent statutory sanction andwhere the penalty forthe offense isby fine rather than by restraint. While it is recognized that the requirement of community service is not as severe a restraint as imprisonment, it is suggested that it is a restriction of aperson's **liberty.**

Code Crim. Proc. art. 42.12, §lOA provides for community service as a requirement for probationers convicted of **Class** A and Class Bmisdemeanors. Inboth of these classes of misdemeanors,-punishment is by fine z imprisonment, orbyboth fine and imprisonment.1 Hence, a person who has been convicted of either a Class A or Class Bmisdemeanor, and assessed a fine only, may be required toperform community service asa condition of probation. Clearly, a requirement that -the defendant obtain employment isno less restrictive of aperson's liberty than the requirement of rendering community service.

Article 45.54 provides no limit on the amount of community service thatmay **be** required. Section lOA of article 42.12 limits the amount of community service which maybe ordered by the court fordefendants convicted of ClassA and Class Bmisdemeanors. Community service for a

1. An individual adjudged guilty of a Class A misdemeanor shallbe punished by: (1)a finenot to exceed $2,000; (2)aconfinement in jail fora term not to exceed
oneyear: or (3)both such fine and imprisonment. Penal Code 512.21.

An individual adjudged guilty of a Class B misdemeanor shall bepunished by: (1)a fine not to exceed $1,000; (2)confinement in jail fora term not to exceed 180 days; or
(3)both such fine and imprisonment. Penal Code 512.22.

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defendant convicted 

### ofa Class Amisdemeanor **“may** not exceed 200 hours and may notbe less than 80 hours." Community service foradefendant convicted of **a Class**  B misdemeanor nmaynot exceed 100hours andmay not be less than 24hours." Code Crim Proc. art. 42.12, **§§lOA(d) (41,**  **(5) -**  While no time frames are set forth inarticle 45.54
as to the amount of community service, the requirement that the condition be reasonable mandates that there be a correlation between the amount of required community service, the severity of the crime, and the penalty. To meet the requirement of reasonableness the required community service should bear arelationship to the crime and characteristics of the offender. Tamez v. State, **534** S.W.Zd 686 (Tex. Crim. App. 1976). A condition of probation should be related to rehabilitation and public protection. Baker and Bubany, Probation for Class C Misdemeanors: To Pine orNot to Pine isNow the Ouestion,
sunra. No reason isperceived why **a** defendant may not be required toperform community service pursuant to article 45.54 as acondition of the deferral of the fine so long
as the required community service is reasonable. A determination of what constitutes reasonable community service must ofnecessity bemade on **a case**  by case basis.

Thematter of the liability of judges of inferior courts is addressed in 48A C.J.S. Judaes 588, at 696. After noting that judges of inferior courts have the same exemption fromcivil liability for their judicial acts as isaccorded to judges of courts of record, it is stated:

An inferior judge or a judge of a court of **limited** jurisdiction, while acting within his jurisdiction, hasbeen held exempt from civil liability, although hemay have acted erroneously. An inferior judge or a judge of acourt of limited jurisdiction isexempt fromcivil liability, although acting in
excess ofhis jurisdiction, where the act is under colorable invocation ofhis jurisdiction, and even though his acts involve his affirmative decision that hehas jurisdiction and errs inarriving at this conclusion, especially where he acts in good faith.

InTurner v. Pruitt, 342 S.W.2d 422 (Tex. 1961) the Texas Supreme Court addressed the matter of the tort liability of a justice of the peace for acts performed in judicial proceedings. InTurner the court stated:

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lnorableSamW. Dick -Page 6 (JR-898)

342 S. The same reasons underlying immunity of

district judges from tort liability for acts performed or not performed in judicial proceedings require a conclusion that justices of the peace should enjoy a like immunity when acting in the course of judicial proceedings of which they have jurisdiction. J3um~ 561, 568; 13 A.L.R:13& Fisher 21 Tex. 173A:L.R. 806. Themere fact that in the course of such a proceeding a justice of the peace may refuse, but by writ of mandamus be compelled, to perform a clear legal duty, involving the exercise of no discretion, will not subject him to tort liability.
,W.2dat 423.

The requirement of reasonable community service as a condition fordeferral of finemade pursuant to article 45.54 isat thevery least acolorable invocation of the justice's jurisdiction. Under. such circumstances the justice of the peace would not be liable for injuries sustained by the defendant orthird parties resulting from the defendant's performance of community service.

"The County isa political subdivision of the State and is immune from actions arising out of its negligence
or the negligence of itsagents, officials and employees unless this immunity iswaived by the Texas Tort Claims Act." Vela v. Cameron Countv 703 S.W.2d 721 (Tex.App. - Corpus Christi 1985,writ rei'd n.r.e.). The Texas Tort Claims Act specifically excludes claims based on acts or omissions of acourt of this state when the court is acting in itsofficial capacity. Civ. Prac. and Rem. Code §101.053 provides:

(a)This chapter [TexasTort Claims Act] does not apply to aclaim based on an act or omission of acourt of this state or any member ofa court of this state acting in his official capacity 

### or to a judicial function of agovernmental unit. 'Official capacity' means all duties of office and includes administrative decisions or actions.
(b)This chapter does not apply to a claim based onan act oromission of an

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employee inthe execution of a lawful order ofany court.

Youmake ageneral inquiry about the liability of judges and counties in instances where a court requires community service as acondition of probation in misdemeanor and felony cases. A review of the opinion inAdams V. Ilhanv, 764 F.2d 294 (5thCir. 1985), cert. denied, 106 S.Ct. 883) (1986) ishelpful indetermining liability growing out of judicial acts. ,InAdams itwas claimed a state district judge in Texas had summarily assessed punishment forconstructive contempt. Itwas noted that the law is well settled that notice and hearing are required before a judge may assess punishment against an out-of- court contemnor. InAdams the court stated:

[l]Absolute judicial immunity extends to all judicial actswhich are not performed in the clear absence of all jurisdiction. StumDv. Shdcman, 435U.S. 3i9, 98 S.Ct. 1099, 55L.Ed,.2d331 (1978).

764 F.2d at 297.

. . . . That McIlhany [Judge] may have been wholly motivated bypersonal malice does not inthe least turn a judicial act into anonjudicial act. Bradlev v. Fisher, 13 Wall. 335, 20L.Ed. 646 (1872);Stumn. sunra.

The four factors generally relied upon by this circuit in determining whether an act is 'judicial' also support this characterization ofJudge McIlhany's actions: these
are: (1)whether the precise act complained of * judicial function: (2)w&he: thrzti occurred inthe courtroom or appropriate adjunct spaces such as the judge's chambers; (3)whether the controversy centered around a case pending before the court: and (4)whether the acts arose directly out of avisit to the judge in his official capacity. &lcAlester v. Brown, 469 F.2d 1280, 1282 (5thCir. 1972). The four-part McAlester test should always be considered indetermining whether an act is \judicial'; however, the test factors should be broadly construed in favor of

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immunity, and itshould beborn inmind that while the -ester factors will often plainly indicate that immunity isavailable, there are situations inwhich immunity must **be** afforded even though one ormore of the McAlesta factors fails to obtain. Nor are the factors tobe given equal weight in all
cases: rather, they should be construed in each case generously to the holder of the immunity and in the light of the policies underlying judicial immunity. Of primary importance among these policies isthe need for independent and disinterested judicial decision-making; immunity should not be denied where the denial carries the potential of raising more than a frivolous
concern in themind of some future judge that to take proper action might expose him topersonal liability. (Footnotes omitted.)

764 F.2d at 297.

. . . .
Where a court has some subject-matter jurisdiction,. there ' sufficient jurisdiction for immunity p:woses. ?

764 F.2d at 298.

A judge inrequiring community service as acondition forprobation would clearly have subject matter jurisdiction ina casewhere the statute authorizes the granting ofprobation and the imposition of this requirement. Under these circumstances the judge and county would not be liable for injuries sustained by the defendant or for damages sustained by third parties as the result of such community service.2 We note that this question does not deal with judicial officers who are performing administrative, legislative or executive functions such as

2. Where the convicted defendant isrequired to obtain employment as acondition of probation and the county is the employer, the county may be liable for personal injuries of the defendant. See Attorney General Opinion JM-526 (1986). ?

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aboard of state district judges.making policy decisions
as to the operation ofa local adult probation department.

A child found to have engaged indelinquent conduct arising from the commission ofanoffense where there has been property damage (orloss) orpersonal injurymay be required to render personal services to a charitable or educational institution under section 54.041 of the Family Code. Section 54.041 **makes** the following provisions with regard to any liability which may result.

A city, town, or county that establishes .a program to assist children in rendering personal services to a charitable educational institution as authorized EG this subsection mav mu-chase Insurance policies wrotectina the citv. town, or countv aaainst claims brouaht bv a Derson ;t t ause of action that arises froman act of the child while renderina those services. The city, town, or county is not liable under this Act to the extent that damages are recoverable under a contract of insurance or under a plan of self-insurance authorized by statute. The liability of the city, town, or county foracause of action that arises froman action of the child while rendering those services may not exceed $100,000 to a single person and $300,000 for a single
occurrence of property damage. Liability may not extend to punitive or exemplary damages. This subsection does notwaive a defense. immunitv. or iurisdictional bar available to the citv. town. or countv 2ts officer or emolovees. nor shall thy: Act be consTrued towaive. reneal. ormodifv

. . anv nro i 10 of h Tx Tort Claim gs arnenze:(:rtic:ee62t2!?9, Vernon;ss Act, Texas Civil Statutes). (Emphasis added.)
Family Code 854.041(b).

Article 830911,V.T.C.S., inaddressing thematter of workers' compensation foremployees ofapolitical subdivision specifically provides for insurance coverage for children rendering service toa charitable or educational institution under subsection (b),section 54.041 of the Family Code. V.T.C.S. art. 8309h, §1(2) states:

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A political subdivision w cover children who are inaprogram established by the political subdivision to assist children in rendering personal services to a charitable or educational institution as authorized **by** Subsection (b)t Section 54.041, Family Code. (Emphasis added.)

While there is no~distinction in the liabilities imposed upon judges or counties in juvenile cases from those resulting from orders and judgments in other matters, the county may provide insurance to cover any claim resulting from any action by a child rendering service to acharitable or educational institution under section 54.041 of the Family Code. In addition, the county may provide workers' compensation insurance coverage for children rendering such service. V.T.C.S. art. 8309h.

Article 8309h. lists the classifications of. persons who are employees and subject to workers' compensation insurance coverage by a apolitical subdivision. Article 8309h defines "employee" as follows:

(2) 'Employee'means every person in the service of a political subdivision who has been appointed in accordance with the provisions of the article. No person inthe service of apolitical subdivision who is paid'on apiecework basis or on a basis other than by thehour, day,week, month, or year shall be considered an employee and entitled to compensation under the terms of the provisions of this article. Provided, however, apolitical subdivision may cover volunteer firefighters, policemen, emergency medical personnel, and other volunteers that
are specifically namedwho shall be entitled to full medical benefits and the minimum compensation payments under the law. A political subdivision may **cover** an elected official as an employee by amajority vote of themembers of the governing body of the political subdivision. Apolitical subdivisionmay cover children who are inaprogram established by the political subdivision to assist children in rendering personal services to a charitable or educational institution as authorized by Subsection (b), Section 54.041, Family Code. Members of the

p.4428,

Honorable SamW. Dick -Page 11 (JM-898)

board of trustees ofa self-insurance fund created hereunder may provide coverage for themselves aswell as their staff, including persons with whom it has contracted to perform staff functions, or for any other self-insurance fund created under The Interlocal Cooperation Act (Article 4413(32c), Vernon's Texas Civil Statutes) by amajority vote of suchmembers of the fund. No class ofpersons who arepaid asa result of jury service or an appointment to serve in the conduct of elections may be considered employees under this article unless declared to

### beemployees by amajority vote of the members of the governing body of apolitical subdivision.

Criminal defendants performing community service are not among the classifications 

### of persons for whom the county may provide workers' compensation insurance nor is there any authority forthe county toprocure insurance coverage forany claim arising from third parties as the result of such service.

SUMMARY

A defendant may be required to perform reasonable community service as a condition of the deferral of a fineunder Code trim. Proc. art. 45.54. Neither the justice of the peace nor the county is liable for injuries to the, defendant or third parties resulting fromthe performance of reasonable community service ordered pursuant to article 45.54. The judge and county are not liable for injuries sustained by a juvenile
or third parties resulting from service to charitable or educational institutions performed by the juvenile pursuant to section 54.041 of the Family Code. The county isauthorized under section 54.041 to provide insurance coverage against claims brought by aperson other than the child for
a cause ofaction arising froman act of a juvenile in providing such service. A county may provide insurance coverage for children rendering service to charitable or educational institutions pursuant to section 54.041 of the Family Code. Neither the judge nor the county is liable for injuries

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to the defendant or third parties resulting from the performance of community service ordered asa condition ofprobation pursuant to article 42.12 of the Texas Code of Criminal Procedure following conviction of the defendant for a felony or misdemeanor. The county is not authorized to include criminal defendants in its workers' compensation program and its liability insurance program to cover claims arising during the performance of community service by aprobationer. The Texas Tort Claims Act specifically excludes claims based on acts or omissions ofa court of this state when the court is acting in its official capacity. I

Attorney General of Texas

MARYKELLER First Assistant Attorney General

LOUMCCRFARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by TomG. Davis Assistant Attorney General

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