                                             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 75 110                                     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 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 administeringpolygraphexaminations 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 examinationson 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. CODEJUD.CONDUCT,            Canon 4(A), reprinted
in TEX.GOV'TCODEANN.,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'TCODEANN.
$5 33.001L.051 (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 STATECOMM'NON JUDICIAL
CONDUCT,SUMMARIES          OF PUBLICSANCTIONS,        PUBLIC REPRIMAND       (Apr. 24, 2001)? The
Commission explained that service in the two "positions created an appearance of impropriety, bias,
prejudice, and partialityin 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 STATECOMM'NON 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." STATECOMM'N
ON JUDICIAL   CONDUCT,   PUBLICSTATEMENT     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. CODEJUD.
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. CODEJUD. 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 conductbutnot 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-0551



        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
'>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 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.CODECRIM.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 thejurisdiction 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 solejurisdiction 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. C O D E CPROC.    ~ . 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.CODECRIM.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 STATECOMM'NON 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." STATECOMM'NON
JUDICIAL   CONDUCT,   PUBLICSTATEMENT       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'TCODEANN.5 33.022 (Vemon 2004) (setting out the Commission's authority
to investigate the circumstances surroundingan 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



                                    S U M M A R Y

                       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
