May 9, 1988 

Honorable Sam W. Dick Opinion No. JR-898 

Criminal District Attorney 

County Courthouse Re: Authority of a Justice 

PO* Bend County of the Peace to prescribe 

Richmond, Texas 77469 community service as a sentencing alternative, and 

related questions (RQ-1344) 

Dear Mr. Dick: 

You ask the following questions: 

1. May's Justice of -the Peace provide 

community service to a defendant as an 

alternative punishment? 

If so, will the Justice of the Peace and/ 

or the County be liable for injuries sustained by the defendant during community 

service or for damages 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 a result of 

the community service? 

3. What are the liabilities of the Judge 

and County in providing community service as 

a condition of probation in misdemeanor 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 

p. 4419 
Honorable Sam W. Dick - Page 2 UM-898) 

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 of Criminal Procedure does not 

specifically provide for community 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 of by 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 for a period not to 

exceed 180 days. 

(2) During said deferral period, the 

justice may require the defendant to: 

(a) post a bond in the amount of the fine 

assessed to secure payment of the fine: 

(b) pay restitution to the victim of the 

offense in an 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 or Dart of 

thefine 

(3) At the conclusion of the deferral 

period, if the 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. If the complaint 

is dismissed, a special expense not to 

p. 4420 
Honorable Sam W. Dick - Page 3 KIM-8981 _ 

exceed the amount of the fine assessed may 

be imposed. 

(4) Records relating to a complaint dismissed as provided by this article may be 

expunged under Article 55.01 of this code. 

(Hmphasis gadded.) 

Code Crim. Proc. art. 45.54. 

In Attorney General Opinion JM-526 (1986), the 

following observations were made relative to the 

legislature's enactment of article 45.54: 

The legislature enacted this statute to 

enable a 'justice' to make a form of probation available to defendants convicted of 

offenses with a maximum 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 form of 'probation' although the statute does not use the 

term. $&R Attorney General Opinion JM-307 

(1985); see also Baker & Bubany, 'Probation 

for Class C Misdemeanors: To Fine or Not to 

Fine ,is Now 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 also Attorney General 

Opinion H-1128 (1978). 

In Attorney General Opinion JM-307 (1985) it was 

noted that article 45.54, in contrast to the felony and 

misdemeanor probation statute, includes no purpose clause 

or any other provision stating the goals of its procedures 

for suspending sentences. See Code Crim. Proc. art. 

42.12. In Attorney General ?&&ion JM-526 it was stated 

that article 45.54 authorizes the requirement that the 

convicted defendant obtain employment as a condition of 

the deferral of the fine so lona as the condition of 

emnlovment is reasonable. If a defendant can be 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 45.54 may only be applicable when the defendant 

p. 4421 
Honorable Sam W. Dick - Page 4 (JM-898) 

has agreed to the conditions of the deferral. Attorney 

General Opinion JM-526. 

In Baker and Bubany, Probation for Class C Misdemean- 

,ors: To Fine r N t to Fine is Now the Ouestion, 22 so. 

Tex. L.J. 249O (1;81) concern is expressed about the 

requirement of communi;y service absent statutory sanction 

and where the penalty for the offense is by 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 a person's liberty. 

Code Crim. Proc. art. 42.12, §lOA provides for 

community service as a requirement for probationers 

convicted of Class A and Class B misdemeanors. In both of 

these classes of misdemeanors,-punishment is by fine z 

imprisonment, or by both fine and imprisonment.1 Hence, a 

person who has been convicted of either a Class A or Class 

B misdemeanor, and assessed a fine only, may be required 

to perform community service as a condition of probation. 

Clearly, a requirement that - the defendant obtain 

employment is no less restrictive of a person's liberty 

than the requirement of rendering community service. 

Article 45.54 provides no limit on the amount of 

community service that may be required. Section lOA of 

article 42.12 limits the amount of community service which 

may be ordered by the court for defendants convicted of 

Class A and Class B misdemeanors. Community service for a 

1. An individual adjudged guilty of a Class A 

misdemeanor shall be punished by: 

(1) a fine not to exceed $2,000; 

(2) a confinement in jail for a term not to exceed 

one year: or 

(3) both such fine and imprisonment. Penal Code 

512.21. 

An individual adjudged guilty of a Class B 

misdemeanor shall be punished by: 

(1) a fine not to exceed $1,000; 

(2) confinement in jail for a term not to exceed 180 

days; or 

(3) both such fine and imprisonment. Penal Code 

512.22. 

p. 4422 
Honorable Sam W. Dick - Page 5 (JK-898) 

defendant convicted of a Class A misdemeanor “may not 

exceed 200 hours and may not be less than 80 hours." 

Community service for a defendant convicted of a Class B 

misdemeanor nmay not exceed 100 hours and may not be less 

than 24 hours." Code Crim Proc. art. 42.12, §§lOA(d) (41, 

(5) - While no time frames are set forth in article 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 a relationship 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 or Not to Pine is Now the Ouestion, 

sunra. No reason is perceived why a defendant may not be 

required to perform community service pursuant to article 

45.54 as a condition of the deferral of the fine so long 

as the required community service is reasonable. A 

determination of what constitutes reasonable community 

service must of necessity be made on a case by case basis. 

The matter 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 from civil liability for their judicial acts as 

is accorded 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, has been held exempt from 

civil liability, although he may have acted 

erroneously. An inferior judge or a judge 

of a court of limited jurisdiction is exempt 

from civil liability, although acting in 

excess of his jurisdiction, where the act is 

under colorable invocation of his jurisdiction, and even though his acts involve his 

affirmative decision that he has jurisdiction and errs in arriving at this conclusion, especially where he acts in good 

faith. 

In Turner 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. In Turner the court stated: 

p. 4423 
Hc lnorable Sam W. 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. 

173 A:L.R. 806. 

The mere 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.2d at 423. 

The requirement of reasonable community service as a 

condition for deferral of fine made pursuant to article 

45.54 is at the very least a colorable invocation of the 

justice's jurisdiction. Under. such circumstances the 

justice of the peace would not be liable for injuries 

sustained by the defendant or third parties resulting from 

the defendant's performance of community service. 

"The County is a political subdivision of the State 

and is immune from actions arising out of its negligence 

or the negligence of its agents, officials and employees 

unless this immunity is waived 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 a court of this state when the court is 

acting in its official capacity. Civ. Prac. and Rem. Code 

§101.053 provides: 

(a) This chapter [Texas Tort Claims Act] 

does not apply to a claim based on an act or 

omission of a court of this state or any 

member of a court of this state acting in 

his official capacity or to a judicial 

function of a governmental unit. 'Official 

capacity' means all duties of office and 

includes administrative decisions or 

actions. 

(b) This chapter does not apply to a 

claim based on an act or omission of an 

p. 4424 
HonorableSam W. Dick - Page 7 04-898) 

employee in the execution of a lawful order 

of any court. 

You make a general inquiry about the liability of 

judges and counties in instances where a court requires 

community service as a condition of probation in misdemeanor and felony cases. A review of the opinion in Adams 

V. Ilhanv, 764 F.2d 294 (5th Cir. 1985), cert. denied, 

106 S.Ct. 883) (1986) is helpful in determining liability 

growing out of judicial acts. ,In Adams it was claimed a 

state district judge in Texas had summarily assessed 

punishment for constructive contempt. It was 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. In Adams the court stated: 

[l] Absolute judicial immunity extends to 

all judicial acts which are not performed in 

the clear absence of all jurisdiction. 

StumD v. Shdcman, 435 U.S. 3i9, 98 S.Ct. 

1099, 55 L.Ed,.2d 331 (1978). 

764 F.2d at 297. 

. . . . 

That McIlhany [Judge] may have been 

wholly motivated by personal malice does not 

in the least turn a judicial act into a nonjudicial act. Bradlev v. Fisher, 13 Wall. 

335, 20 L.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 of Judge McIlhany's actions: these 

are: (1) whether the precise act complained 

of * judicial function: 

(2) w&he: thrzti occurred in the 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 a visit to the judge 

in his official capacity. &lcAlester v. 

Brown, 469 F.2d 1280, 1282 (5th Cir. 1972). 

The four-part McAlester test should always 

be considered in determining whether an act 

is \judicial'; however, the test factors 

should be broadly construed in favor of 

p. 4425 
Honorable Sam W. Dick - Page 8 (JM-898) 

immunity, and it should be born in mind that 

while the -ester factors will often 

plainly indicate that immunity is available, 

there are situations in which immunity must 

be afforded even though one or more of the 

McAlesta factors fails to obtain. Nor are 

the factors to be 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 is the 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 the mind of some future judge 

that to take proper action might expose him 

to personal 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 in requiring community service as a condition 

for probation would clearly have subject matter jurisdiction in a case where the statute authorizes the granting 

of probation 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 is required to obtain 

employment as a condition 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). 

? 

p. 4426 
Honorable Sam W. Dick - Page 9 0X-898) 

a board of state district judges.making policy decisions 

as to the operation of a local adult probation department. 

A child found to have engaged in delinquent conduct 

arising from the commission of an offense where there has 

been property damage (or loss) or personal injury may 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 D erson 

; t t ause of action 

that arises from an 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 for a cause of action that arises 

from an 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 not waive a 

defense. immunitv. or iurisdictional bar 

available to the citv. town. or countv 

2ts officer or emolovees. nor shall thy: 

Act be consTrued to waive. reneal. or modifv 

. . 

anv nro i 10 of h T x 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., in addressing the matter of 

workers' compensation for employees of a political subdivision specifically provides for insurance coverage for 

children rendering service to a charitable or educational 

institution under subsection (b), section 54.041 of the 

Family Code. V.T.C.S. art. 8309h, §1(2) states: 

p. 4427 
Honorable Sam W. Dick - Page 10 LJM-898) 

A political subdivision w cover 

children who are in a program 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 a charitable 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 in the 

service of a political subdivision who is 

paid'on a piecework basis or on a basis 

other than by the hour, 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, a political subdivision may cover 

volunteer firefighters, policemen, emergency 

medical personnel, and other volunteers that 

are specifically named who 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 a majority vote 

of the members of the governing body of the 

political subdivision. A political subdivision may cover children who are in a program 

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 Sam W. Dick - Page 11 (JM-898) 

board of trustees of a self-insurance fund 

created hereunder may provide coverage for 

themselves as well 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 a majority 

vote of such members of the fund. No class 

of persons who are paid as a result of jury 

service or an appointment to serve in the 

conduct of elections may be considered 

employees under this article unless declared 

to be employees by a majority vote of the 

members of the governing body of a political 

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 for the county to procure insurance 

coverage for any 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 fine under 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 from the 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 is authorized under section 54.041 to 

provide insurance coverage against claims 

brought by a person other than the child for 

a cause of action arising from an 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 

p. 4429 
Honorable Sam W. Dick - Page 12 (JM-898) 

to the defendant or third parties resulting 

from the performance of community service 

ordered as a condition of probation 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 a probationer. The Texas Tort Claims Act 

specifically excludes claims based on acts 

or omissions of a court of this state when 

the court is acting in its official 

capacity. I 

Attorney General of Texas 

MARYKELLER 

First Assistant Attorney General 

LOU MCCRFARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 4430