                    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 sen-
                                  tencing 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 sus-
       tained 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 sus-
       tained 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 dis-
           position 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 con-
           dition. other than oavment of all or Dart of
           thefine

               (3) At the conclusion  of the deferral
           period, if the defendant presents satisfact-
           ory evidence that he has complied with the
           requirements imposed, the justice may dis-
           miss 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 dis-
           missed 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 proba-
           tion available   to defendants  convicted  of
           offenses with a maximum punishment of a fine
           not to exceed $200, h     Class C misdemean-
           ors. See Acts 1981, 67th‘Leg., ch. 318, 81,
           at 894 eff. Sept. 1, 1981.        Penal Code
           912.23. This office has previously charact-
           erized article 45.54 as a form of 'proba-
           tion' although the statute does not use the
           term. $&R Attorney General Opinion JM-307
           (1985); see also Baker & Bubany,   'Probation
           for Class C Misdemeanors:   To Fine or Not to
           Fine ,is Now the Question,' 22 So. Tex. L.J.
           249 (1981) . Prior to that time, there was
           no legislative authorization   to allow pro-
           bation in non-traffic misdemeanor    offenses
           punishable by fine only. .$=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 jurisdic-
          tion, and even though his acts involve his
          affirmative decision that he has jurisdic-
          tion and errs in arriving at this conclu-
          sion, 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
Hclnorable Sam W. Dick - Page 6   (JR-898)




              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~       Fisher    21 Tex.
           561, 568; 13 A.L.R:13&        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.

    342 S.,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 misde-
    meanor 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 non-
           judicial 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 character-
           ization of Judge McIlhany's actions:     these
           are:   (1) whether the precise act complained
           of    *                 judicial     function:
           (2) w&he:    thrzti   occurred in the court-
           room 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  jurisdic-
    tion 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    Act,
          gs arnenze: (:rtic:ee62t2!?9, Vernon;ss 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   subdi-
   vision 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 subdivi-
           sion 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 Inter-
               local 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
