GREG ABBOTT 

June 13,2007 

The Honorable R. Lowell Thompson Opinion No. GA-0551 

Navarro County Criminal District Attomey 

300 West 3rd Avenue, Suite 203 Re: Whether a justice of the peace may continue 

Corsicans, Texas 75 1 10 to administer polygraph examinations, for the 

criminal &strict attorney's office, to criminal 

defendants subsequent to "arraignment" and 

setting of bail (RQ-0558-GA) 

Dear Mr. Thompson: 

Your predecessor in office informed us that an individual, formerly employed by the Office 

of the Navarro County Criminal District Attomey (the "Office") as the criminal investigator, is now 

Justice of the Peace for Precinct 2 in Navarro county.' See TEX. CONST. art. V, 3 18(a) ("in each 

such [county] precinct, there shall be elected one Justice of the Peace. . . , each of whom shall hold 

his office for four years"). While employed by the Office, this individual obtained a polygraph 

examiner's license at the expense of Navarro County. See Request Letter, supra note 1, at 1. Thus, 

the Office would like the Justice to continue administeringpolygraph examinations in criminal cases. 

See id. Your predecessor asked whether it is "a conflict of interest for a sitting Justice of the Peace 

to continue administering polygraph examinations on criminal defendants after arraignment andbail 

[has been] set." Id. Your predecessor's question, phrased in terms of conflict of interest, was limited 

to whether the Texas Code of Judicial Conduct would prohibit a justice of the peace from providing 

the polygraph services to the Office.' See id. The Request Letter specifically directs us to Canon 

4A, which provides that "[a] judge shall conduct all of the judge's extra-judicial activities so that 

they do not: (1) cast reasonable doubt on the judge's capacity to act impartially. . . ; or (2) interfere 

with the proper performance ofjudicial duties." TEX. CODE JUD. CONDUCT, Canon 4(A), reprinted 

in TEX. GOV'T CODE ANN., tit. 2, subtit. G. app. B (Vernon 2005); see id. Canon 8(B)(1) ("'Shall' 

. . . denotes binding obligations the violation of which can result in disciplinary action."); see also 

Request Letter, supra note 1, at 1. 

'Letter fiom Honorable Steve A. Keathley, Navarro County Criminal Dlstrict Attorney, to Honorable Greg 

Abbott, Attorney General of Texas, at 1 (Dec. 29, 2006) (on file with the Opinlon Committee, also available at 

http://www.oag.state.tx.us) [hereinafter Request Letter]. 

'Local Government Code chapter 171, relating to local public officers' conflict of interest, addresses economic 

conflicts. See TEX. LOC. GOV'TCOOEANN. $5 171.001-,010 (Vernon 1999 & Supp. 2006). 
The Honorable R. Lowell Thompson - Page 2 GA-0551 

The State Commission on Judicial Conduct (the "Commission") is responsible, in the 

first instance, for applying the judicial canons to specific conduct by judges, including justices 

of the peace. See TEX. CONST. art. V, 5 1-a(2), (6)(A), (8); see also TEX. GOV'T CODE ANN. 

$5 33.001L.05 1 (Vernon 2004) (establishing the Commission and setting out its powers and duties). 

In 2001, the Commission determined that an individual improperly held employment as a justice of 

the peace and a law enforcement officer in neighboring counties. See STATE COMM'N ON JUDICIAL 

CONDUCT, SUMMARIES OF PUBLIC SANCTIONS, PUBLIC REPRIMAND (Apr. 24, 2001)? The 

Commission explained that service in the two "positions created an appearance of impropriety, bias, 

prejudice, and partiality in the handling of criminal cases. Furthermore, it would appear to the public 

that the Judge's fellow law enforcement officers are in a special position to influence the Judge in 

his decisions." Id. The justice of the peace was suspended for violation of Canons 2A and 4D(1)4 

in addition to Canon 4A(1). See id. 

In 2000, the Commission issued a public statement condemning the practice of judges 

serving as active law enforcement officers. See STATE COMM'N ON JUDICIAL CONDUCT, PUBLIC 

STATEMENTNO. PS-2000-1 (Mar. 24,2000);5see also TEX. CONST. art. V, 5 1-a(10) (authorizing 

the Commission to issue apublic statement during proceedings against ajudge). Noting that judges 

are members of the judicial branch and law enforcement officers are part of the executive branch, 

the Commission concluded that a judge attempting to llfill the requirements of both'offices would 

"severely compromise[] the impartiality and independence of the judicial office." STATE COMM'N 

ON JUDICIAL CONDUCT, PUBLIC STATEMENT NO. PS-2000-1 (Mar. 24, 2000). The Commission 

broadly opined that "anyone who tries to serve the public as both judge and law enforcement 

irrevocably undermines the public's confidence in an impartial and independent judiciary." Id. 

A justice of the peace's administration of polygraph examinations for a criminal district 

attorney's office, even though performed in a capacity other than as a member of the office, seems 

to raise the same concerns addressed by the Commission in connection with a judge's service 

as a law enforcement officer. The justice of the peace's involvement with the criminal district 

attorney's office--also a part of law enforcement and the executive branch of government-and 

contact with a criminal defendant in that capacity might undermine the public's trust in the judge's 

ability to remain impartial and fair while conducting judicial business. See TEX. CODE JUD. 

CONDUCT, Canons 2(A), 4(A)(1), 4(D)(1): Thus, Canons 2A, 4A(1), and 4D(1), as construed by the 

Commission, might prohibit a justice of the peace from providing the polygraph examination 

services for the Office. 

3Available at http://www.scjc.state.tx.us/sumpub~txt.php (last visited May 30, 2007) 

'Canon 2A states that a judge "should act at all times in a manner that promotes public confidence in the 

integrity and impartiality of.the judiciary." TEX. CODE JUD. CONDUCT, Canon 2(A); see also id. Canon 8(B)(2) 

("'Should' . . .relates to aspirational goals and as a statement of what is or is not appropriate conduct butnot as a binding 

rule under which a judge may be disciplined."). And Canon 4D(1) requires a judge to "refrain from financial and 

business dealings that tend to reflect adversely on the judge's impartiality . . . or involve the judge in frequent 

transactions with lawyers or persons likely to come before the court on which the judge serves." Id Canon 4(D)(l). 

'Available at http://www.scjc.state.tx.us/PubStat-2000-l.pdf (Public Information) (last visitedMay 30,2007). 
The Honorable R. Lowell Thompson - Page 3 GA-055 1 

The Request Letter contends that the judge's polygraph examination of defendants charged 

with felonies would not violate, as a matter of law, the judicial canons because the judge's 

'>jurisdiction over the defendant will end once he has arraigned and set the bond on the defendant[,] 

thus posing no conflict of interest." Request Letter, supra note 1, at 1. Because the Request Letter 

asks about a justice of the peace and links "arraignment" with hail, we presume that it refers to the 

judge's services as a magistrate under article 15.17 of the Code of Criminal Pr~cedure.~ The Code 

of Criminal Procedure requires an arrested person to be taken before a magistrate within 48 hours 

ofthe arrest. See TEX. CODE CRIM.PROC. ANN. art. 15.17 (Vernon Supp. 2006). Amagistratemust 

perform the duties set forth in article 15.17, including informing the arrested person of the 

accusations against the person and, "after determining whether the person is currently on hail for a 

separate criminal offense, admit[ting] the person arrested to bail if allowed by law." Id. art. 15.17(a). 

As an officer authorized to act as a magistrate, a justice of the peace may perform these article 15.17 

duties. See zd. art. 2.09 (Vemon 2005) (listing a justice of the peace as one of the officers that may 

act as a magistrate). 

We find this contention, premised on the absence of jurisdiction over a criminal defendant 

after an article 15.17 hearing, to be unpersuasive for two reasons. First, a justice of the peace's 

jurisdiction over a defendant in a felony case does not necessarily end with the performance of the 

article 15.17 duties. See Exparte Knzght, 904 S.W.2d 722, 726 (Tex. App.-Houston [lst Dist.] 

1995, writ ref d); see also Exparte Clear, 573 S.W.2d 224,228 (Tex. Crim. App. 1978). With 

respect to criminal matters, a justice of the peace has two roles: (1) as justice of the peace with 

original criminal jurisdiction, which does not include jurisdiction over felony cases; and (2) as a 

magistrate with the jurisdiction and authority of any magistrate in the county, includingthe authority 

to take a felony complaint, issue a warrant of arrest, issue search warrants, and conduct examining 

trials in addition to providmg the article 15.17 warnings and services. See Exparte Knzght, 904 

S.W.2d at 726.' In Exparte Clear, the Court of Criminal Appeals, in deciding whether a justice 

court had sole jurisdiction of a felony complaint filed therein, held that "ajustice of the peace acting 

as a magistrate has jurisdiction concurrent with that of a district judge who also seeks to exercise 

magisterzal powers." Exparte Clear, 573 S.W.2d at 228 (emphasis added). The Court of Criminal 

Appeals concluded that the justice court possessed sole jurisdiction over the felony complaint "to 

the exclusion of all other courts, until the time that the complaint was either dismissed by the court 

'Under the Code of Criminal Procedure, an arraignment occurs in all felony cases and all misdemeanor cases 

punishable by imprisonment after the filing of formal charges. TEX. CODEC~. PROC. ANN. arts. 26.01, .03 (Vernon 

1989). "An arraignment takes place for the purpose of fixing [the defendant's] identity and hearing his plea." Id. art. 

26.02. A justice of the peace does not conduct arraignments. See Tex. Att'y Gen. Op. Nos. GA-0193 (2004) at 1 u.1, 

JM-739 (1987) at 3. The tern "arraigned" is sometimes used to indicate that an individual has been taken before a 

magistrate, but this usage is inconsistent withthe statutory language. See Watson v. State, 762 S.W.2d 59 1,594 n.4 (Tex. 

Crim. App. 1988) (en banc) (explaining that an article 15.17 procedure is not an "arraignment" in Texas law). 

7See also TEX. CONST. art. V, $ 19 (providing that justice of the peace courts "have original jurisdiction in 

criminal matters of misdemeanor cases punishable by fine only. . . and such other jurisdiction as may be provided by 

law"); TEX. CODE CRIM. PROC. ANN. arts. 4.1 1 (Vernon 2005) (providing for original jurisdiction of a justice court in 

criminal cases punishable by fine and sanction that is not confinement or imprisonment), 2.09 (listing a justice of the 

peace as one of the officers that may act as a magistrate), 15.01 (magistrate may issue a warrant of arrest), 15.04 

("affidavit made before the magistrate . . . is called a 'complaint"'). 
The Honorable R. Lowell Thompson - Page 4 GA-0551 

or superseded by the action ofthe grand jury, or until" there is a waiver of the indictment as provided 

for by Code of Criminal Procedure article 1.141. Id. at 229 (footnotes omitted). Thus, a justice of 

the peace may have continuing jurisdiction over a defendant after the judge has "arraigned and set 

bond on" the defendant. 

Second, the Commission's concerns regarding a judge serving as a law enforcement officer -. 

are grounded inbroader principles ofthe public trust and the appearance of impropriety-not merely 

the judge's jurisdiction. See STATE COMM'N ON JUDICIAL CONDUCT, SUMMARIES OF PUBLIC 

SANCTIONS,-PUBLIC REPRIMAND (Apr. 24, 2001) (stating that dual employment as a justice of the 

peace and a law enforcement officer "created an appearance of impropriety, bias, prejudice, and 

partiality in the handling of criminal cases"). As the Commission explained in its public statement 

issued in 2000, "the guiding factor in this analysis [of dual service] is the public's trust in the ability 

of a judge to remain impartial and fair while conducting judicial business." STATE COMM'N ON 

JUDICIAL CONDUCT, PUBLIC STATEMENT NO. PS-2000-1 (Mar. 24,2000). 

Nonetheless, this office cannot ultimately determine whether a justice of the peace is 

prohibited by the judicial canons &om administering the polygraph examinations. That 

determination we must leave to the Commission. The Commission is the body authorized by the 

Texas Constitution and by statute to apply, in the first instance, the judicial canons and investigate 

allegations of judicial misconduct thereunder. See TEX. CONST. art. V, § 1-a(2), (6), (8); see also 

TEX. GOV'TCODEANN. §§ 33.001-.05 1 (Vemon 2004). Moreover, the Texas Constitution requires 

the Commission to "keep itself informed . . . of circumstances relating to the misconduct . . . of 

particular persons holding Cjudicial office], . . . receive complaints or reports . . . fiom any source 

. . . and make such preliminary investigations as it may determine." TEX. CONST. art. V, § 1-a(7); 

see also TEX. GOV'T CODE ANN. 5 33.022 (Vemon 2004) (setting out the Commission's authority 

to investigate the circumstances surrounding an appearance ofmisconduct and to take formal actions 

on such matters). As this office has stated previously,"[w]hether a judge's conduct in specific 

circumstances offends the Code of Judicial Conduct is ultimately amatter for the. . . Commission." 

Tex. Att'y Gen. Op. No. GA-0199 (2004) at 5; see also Tex. Att'y Gen. Op. No. GA-0348 (2005) 

at 6-7 (concluding that whether the judicial canons have been violated is a question that this office 

must leave to the Commission). 
The Honorable R. Lowell Thompson - Page 5 GA-055 1 

SUMMARY 

The State Commission on Judicial Conduct (the 

"Commission") is responsible for applying the Code of Judicial 

Conduct to specific conduct by judges, including justices of the 

peace. The Commission has opined that the public's confidence in 

an impartial and independent judiciary is undermined when a person 

attempts to serve both as a judge and in law enforcement. The 

Commission must initially determine whether a justice of the peace 

is prohibited by the Code of Judicial Conduct from administering 

polygraph examinations to criminal defendants for the criminal 

district attorney's office. 

Very truly yours, 

Attorney d&ral of Texas 

KENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Sheela Rai 

Assistant Attorney General, Opinion Committee