GREG ABBOTT



### June 13,2007

The Honorable R. Lowell Thompson OpinionNo. GA-0551 Navarro County Criminal District Attomey 300 West 3rd Avenue, Suite 203 Re: Whether a justice ofthe peace may continue Corsicans, 

### Texas 75 110 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 informedus that an individual, formerly employed by the Office ofthe 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 ofthe Peace.


### . . ,each ofwhom 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 Justiceto continue administeringpolygraph examinations in criminalcases. See id. 

### Your predecessor asked whether it is "a conflict of interest for a 

### sitting Justice of the Peace to continueadministeringpolygraph examinationson criminal defendants after arraignmentandbail [hasbeen] set." Id. 

### Your predecessor's question, phrased in terms ofconflict ofinterest, was limited to whether the Texas Code ofJudicial Conductwould prohibit a justice ofthe 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 thejudge's capacityto act impartially.


### . . ;

### or (2) interfere with theproper 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'TCODE 

### ANN. 

## $5 33.001L.05 1(Vernon2004) (establishingthe Commission and settingout its powers and duties). 

### In 2001, the Commission determinedthat an individual improperlyheld employment as ajustice 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 inthe two "positions created an appearanceofimpropriety,bias, prejudice, andpartialityinthe handlingofcriminal cases. Furthermore,it would appearto the public that the Judge's fellow law enforcement officers are in a special position to influence the Judge in his decisions." 

### Id. Thejustice 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 ofjudges serving as active law enforcement officers. See STATE COMM'N ON 

### JUDICIAL CONDUCT, PUBLIC STATEMENTNO. PS-2000-1 (Mar. 24,2000);5seealso TEX. CONST. art. V, 

## 5 1-a(10) (authorizing the Commissionto issue apublic statementduring proceedings against ajudge). Noting that judges are members of thejudicial branch and law enforcement officers are part of the executivebranch, the Commissionconcluded that a judge attemptingto llfillthe requirements ofboth'officeswould "severely compromise[] the impartiality and independenceof 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. Ajustice 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. Thejustice 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 thejudge'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 construedby the Commission, might prohibit a justice of the peace from providing the polygraph examination services for the Office.

3Availableat http://www.scjc.state.tx.us/sumpub~txt.php (last visited May 30, 2007) 'Canon 2A states that ajudge "should act at all times in a manner that promotes public confidence in the integrity and impartiality of.thejudiciary." TEX. CODEJUD. CONDUCT, Canon 2(A); see also id. Canon 8(B)(2) ("'Should'

. ..relatesto aspirationalgoals and as a statement of what is or isnot appropriate conductbutnot as abinding rule under which ajudge may be disciplined."). And Canon 4D(1) requires ajudge 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 thejudge serves." Id Canon 4(D)(l). 'Available at http://www.scjc.state.tx.us/PubStat-2000-l.pdf (PublicInformation) (lastvisitedMay 30,2007).The Honorable R. Lowell Thompson 

### - Page 3 GA-0551

The Request Letter contends that thejudge's polygraph examination of defendants charged with felonies would not violate, as a matter of law, the judicial canons because the judge's '>jurisdictionover 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 ajustice of the peace and links "arraignment" with hail, we presume that it refers to the judge's services as a magistrate under article 15.17of 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 separatecriminaloffense, admit[ting]theperson arrestedto bail if allowedbylaw." 

### Id. art. 15.17(a). As an officer authorizedto act as a magistrate, a justice ofthepeace mayperform these article 15.17 duties. See zd. art. 2.09 (Vemon 2005) (listing a justice ofthe 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) asjustice of the peace with original criminaljurisdiction, which does not include jurisdiction over felony cases; and 

### (2) as a magistrate with the jurisdiction and authorityof anymagistrate 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 courthad sole jurisdiction of a felony complaint filed therein, held that "ajustice ofthepeace acting as a magistrate hasjurisdiction 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 thejustice 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 arraignmenttakes 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 inconsistentwiththe statutorylanguage. See Watsonv. State, 762 S.W.2d 59 1,594n.4 (Tex. Crim. App. 1988) (en banc) (explaining that an article 15.17 procedure is not an "arraignment" in Texas law). 7Seealso TEX. CONST. art. V, $ 19 (providing thatjustice of the peace courts "have original jurisdiction in criminal matters of misdemeanor cases punishable by fine only.

. . and such otherjurisdiction 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 confinementor 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 supersededby the action ofthe grand jury, oruntil" there is a waiver of the indictment as provided for by Code of Criminal Procedure article 1.141. 

### Id. at 229 (footnotes omitted). Thus, ajustice of the peace may have continuing jurisdiction over a defendant after thejudge has "arraigned and set bond on" the defendant. Second, the Commission's concernsregarding a judge serving as a law enforcement officer -. are grounded inbroader principles ofthepublic trust and the appearanceofimpropriety-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 ajustice 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 [ofdual service] is the public's trust in the ability of ajudge to remain impartial and fair while conductingjudicial 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 statuteto apply, 

### in the firstinstance, thejudicial 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 Constitutionrequires 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 investigatethe circumstances surroundingan appearance ofmisconductand to take formal actions on such matters). As this office has stated previously,"[w]hether a judge's conduct in specific circumstancesoffends the Code ofJudicial 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 thejudicial 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 ajustice 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