Can a Texas justice of the peace also give polygraph tests for the district attorney's office?

TX AG Opinion GA-0551: Can a justice of the peace run polygraphs for the prosecutor?

Plain-English summary

A former criminal investigator for the Navarro County Criminal District Attorney's Office had been elected Justice of the Peace for one of the county's precincts. While he worked for the prosecutor's office, the county had paid for him to get a polygraph examiner's license, and the office wanted him to keep administering polygraph examinations in criminal cases now that he was a sitting judge. The District Attorney asked the Attorney General whether the Texas Code of Judicial Conduct would let a justice of the peace keep doing those polygraphs, framing it as a conflict-of-interest question and pointing to Canon 4A.

The Attorney General did not resolve the question, and explained why it could not. The State Commission on Judicial Conduct, created by the Texas Constitution, is the body responsible in the first instance for applying the judicial canons to a particular judge's conduct, including a justice of the peace. So whether these polygraph activities actually violate the canons is the Commission's call, not the Attorney General's.

The opinion did, though, lay out the concerns. The Commission has a track record here. In 2001 it publicly reprimanded a person who held jobs as both a justice of the peace and a law enforcement officer, finding that the dual roles created an appearance of impropriety, bias, and partiality in handling criminal cases. In 2000 it issued a public statement condemning judges who serve as active law enforcement officers, reasoning that judges are in the judicial branch and law enforcement is in the executive branch, and that anyone trying to be both undermines public confidence in an impartial, independent judiciary. The Attorney General observed that a justice of the peace administering polygraphs for a criminal district attorney's office, itself part of law enforcement and the executive branch, seems to raise the same concerns, so Canons 2A, 4A(1), and 4D(1) as the Commission has construed them might prohibit the practice.

The District Attorney's request had argued the judge's polygraph work posed no conflict because his jurisdiction over a defendant ends once he has held the initial appearance and set bail. The Attorney General found that argument unpersuasive for two reasons. First, a justice of the peace acting as a magistrate can have continuing jurisdiction over a felony defendant beyond the initial article 15.17 hearing; under Ex parte Clear, a justice of the peace acting as a magistrate has jurisdiction concurrent with a district judge exercising magistrate powers, and that jurisdiction does not automatically end at the bail stage. Second, the Commission's concerns rest on broad principles of public trust and the appearance of impropriety, not narrowly on whether the judge still has jurisdiction in a given case. The bottom line: the opinion identified the issue and the governing concerns but left the final judgment to the Commission.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Code of Judicial Conduct canons, the Government Code provisions on the State Commission on Judicial Conduct, and the Code of Criminal Procedure magistrate provisions cited here may have changed since 2007. Anyone facing a similar question should confirm current canons and consult the State Commission on Judicial Conduct.

Who this opinion affected (as of 2007)

Justices of the peace and other judges: The opinion explained that whether their outside activities violate the Code of Judicial Conduct is decided by the State Commission on Judicial Conduct, and that the Commission had condemned judges who also serve in law enforcement as undermining public confidence in an impartial judiciary.

Criminal district attorneys' offices: The opinion told them the Attorney General could not bless the arrangement of a sitting justice of the peace running polygraphs for the office, because that conduct's compliance with the canons was the Commission's determination to make.

Anyone arguing a judge's jurisdiction ends at the bail hearing: The opinion rejected that premise, noting a justice of the peace acting as a magistrate can have continuing jurisdiction over a felony defendant beyond the initial article 15.17 hearing, and that the canon concerns are about public trust, not just jurisdiction.

Common questions

Did the Attorney General say a justice of the peace can or cannot run polygraphs for the DA?
No. The Attorney General declined to decide. It explained that applying the Code of Judicial Conduct to specific conduct is the job of the State Commission on Judicial Conduct, not the Attorney General.

Why is having a judge do polygraph work for a prosecutor a problem at all?
The opinion pointed to the Commission's view that serving as both a judge and in law enforcement creates an appearance of impropriety and undermines confidence in an impartial judiciary. A justice of the peace running polygraphs for a prosecutor's office seemed to the Attorney General to raise the same concerns under Canons 2A, 4A(1), and 4D(1).

Doesn't the judge lose jurisdiction once bail is set, so there's no conflict?
The Attorney General found that argument unpersuasive. A justice of the peace acting as a magistrate can have continuing jurisdiction over a felony defendant past the initial appearance, and the Commission's concerns rest on public trust and appearance, not only jurisdiction.

Who decides whether a judge actually violated the canons?
The State Commission on Judicial Conduct. The Texas Constitution and statutes make it responsible for applying the canons, investigating allegations of judicial misconduct, and taking action.

Background and statutory framework

A justice of the peace is an elected office under the Texas Constitution (Tex. Const. art. V, § 18(a)). The request framed the issue as a conflict of interest under the Code of Judicial Conduct, directing the Attorney General to Canon 4A, which requires a judge to conduct extra-judicial activities so they do not cast reasonable doubt on the judge's capacity to act impartially or interfere with judicial duties; the related Local Government Code conflict-of-interest provisions address economic conflicts and were not the focus (Tex. Code Jud. Conduct, Canon 4(A), Canon 8(B)(1); Tex. Loc. Gov't Code Ann. §§ 171.001-.010 (Vernon 1999 & Supp. 2006)).

The State Commission on Judicial Conduct is responsible in the first instance for applying the judicial canons to specific conduct by judges, including justices of the peace, and for investigating allegations of misconduct (Tex. Const. art. V, § 1-a(2), (6)(A), (7), (8), (10); Tex. Gov't Code Ann. §§ 33.001-.051, § 33.022 (Vernon 2004)). The Commission has publicly reprimanded a person who served as both a justice of the peace and a law enforcement officer, finding an appearance of impropriety, bias, prejudice, and partiality, and in a 2000 public statement condemned judges serving as active law enforcement officers as severely compromising judicial impartiality and independence. The Attorney General observed that a justice of the peace administering polygraphs for a criminal district attorney's office, part of the executive branch, seems to raise the same concerns, so Canons 2A, 4A(1), and 4D(1) as construed by the Commission might prohibit the practice (Tex. Code Jud. Conduct, Canon 2(A), Canon 4(A)(1), Canon 4(D)(1), Canon 8(B)(2)).

On the jurisdiction argument, the Code of Criminal Procedure requires an arrested person to be taken before a magistrate within 48 hours, and a justice of the peace is authorized to act as a magistrate and perform the article 15.17 duties, including the bail determination (Tex. Code Crim. Proc. Ann. art. 15.17, 15.17(a) (Vernon Supp. 2006); art. 2.09 (Vernon 2005)). An article 15.17 procedure is not an "arraignment" in Texas law, and a justice of the peace does not conduct arraignments (Tex. Code Crim. Proc. Ann. arts. 26.01, .02, .03 (Vernon 1989); Watson v. State, 762 S.W.2d 591, 594 n.4 (Tex. Crim. App. 1988) (en banc)). A justice of the peace acting as a magistrate can have continuing jurisdiction over a felony defendant beyond the article 15.17 hearing, with jurisdiction concurrent with a district judge exercising magistrate powers (Tex. Const. art. V, § 19; Tex. Code Crim. Proc. Ann. arts. 4.11, 15.01, 15.04, 1.141 (Vernon 2005); Ex parte Knight, 904 S.W.2d 722, 726 (Tex. App.-Houston [1st Dist.] 1995, writ ref'd); Ex parte Clear, 573 S.W.2d 224, 228 (Tex. Crim. App. 1978)). The Attorney General therefore concluded it could not determine whether the canons were violated and left that to the Commission.

Citations

Constitution, statutes, and canons:

• Tex. Const. art. V, § 18(a)
• Tex. Const. art. V, § 1-a(2), (6)(A), (7), (8), (10)
• Tex. Const. art. V, § 19
• Tex. Gov't Code Ann. §§ 33.001-.051 (Vernon 2004)
• Tex. Gov't Code Ann. § 33.022 (Vernon 2004)
• Tex. Code Jud. Conduct, Canon 2(A)
• Tex. Code Jud. Conduct, Canon 4(A), 4(A)(1)
• Tex. Code Jud. Conduct, Canon 4(D)(1)
• Tex. Code Jud. Conduct, Canon 8(B)(1), 8(B)(2)
• Tex. Code Crim. Proc. Ann. art. 15.17, 15.17(a) (Vernon Supp. 2006)
• Tex. Code Crim. Proc. Ann. art. 2.09 (Vernon 2005)
• Tex. Code Crim. Proc. Ann. arts. 26.01, .02, .03 (Vernon 1989)
• Tex. Code Crim. Proc. Ann. arts. 4.11, 15.01, 15.04 (Vernon 2005)
• Tex. Code Crim. Proc. Ann. art. 1.141
• Tex. Loc. Gov't Code Ann. §§ 171.001-.010 (Vernon 1999 & Supp. 2006)

Cases:

• Ex parte Knight, 904 S.W.2d 722, 726 (Tex. App.-Houston [1st Dist.] 1995, writ ref'd)
• Ex parte Clear, 573 S.W.2d 224, 228 (Tex. Crim. App. 1978)
• Watson v. State, 762 S.W.2d 591, 594 n.4 (Tex. Crim. App. 1988) (en banc)

Attorney General opinions referenced: GA-0193 (2004), JM-739 (1987), GA-0199 (2004), GA-0348 (2005).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0551
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0551.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

GREG ABBOTT

June 13, 2007

The Honorable R. Lowell Thompson
Navarro County Criminal District Attorney
300 West 3rd Avenue, Suite 203
Corsicana, Texas 75110

Opinion No. GA-0551

Re: Whether a justice of the peace may continue to administer polygraph examinations, for the criminal district 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 Attorney (the "Office") as the criminal investigator, is now Justice of the Peace for Precinct 2 in Navarro County.[1] See TEX. CONST. art. V, § 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 administering polygraph 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 and bail [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.[2] 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 of judicial 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.

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, § 1-a(2), (6)(A), (8); see also TEX. GOV'T CODE ANN. §§ 33.001-.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 STATE COMM'N ON JUDICIAL CONDUCT, SUMMARIES OF PUBLIC SANCTIONS, PUBLIC REPRIMAND (Apr. 24, 2001).[3] 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 STATEMENT NO. PS-2000-1 (Mar. 24, 2000);[5] see also TEX. CONST. art. V, § 1-a(10) (authorizing the Commission to issue a public statement during proceedings against a judge). 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 fulfill 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.

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 bail, we presume that it refers to the judge's services as a magistrate under article 15.17 of the Code of Criminal Procedure.[6] The Code of Criminal Procedure requires an arrested person to be taken before a magistrate within 48 hours of the arrest. See TEX. CODE CRIM. PROC. ANN. art. 15.17 (Vernon Supp. 2006). A magistrate must 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 bail 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 id. art. 2.09 (Vernon 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 Ex parte Knight, 904 S.W.2d 722, 726 (Tex. App.-Houston [1st Dist.] 1995, writ ref'd); see also Ex parte 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, including the authority to take a felony complaint, issue a warrant of arrest, issue search warrants, and conduct examining trials in addition to providing the article 15.17 warnings and services. See Ex parte Knight, 904 S.W.2d at 726.[7] In Ex parte Clear, the Court of Criminal Appeals, in deciding whether a justice court had sole jurisdiction of a felony complaint filed therein, held that "a justice of the peace acting as a magistrate has jurisdiction concurrent with that of a district judge who also seeks to exercise magisterial powers." Ex parte 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 or superseded by the action of the 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 in broader principles of the 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 from 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'T CODE ANN. §§ 33.001-.051 (Vernon 2004). Moreover, the Texas Constitution requires the Commission to "keep itself informed . . . of circumstances relating to the misconduct . . . of particular persons holding [judicial office], . . . receive complaints or reports . . . from 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. § 33.022 (Vernon 2004) (setting out the Commission's authority to investigate the circumstances surrounding an appearance of misconduct 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 a matter 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).

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,

GREG ABBOTT
Attorney General 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

Footnotes

[1] Letter from Honorable Steve A. Keathley, Navarro County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Dec. 29, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Local Government Code chapter 171, relating to local public officers' conflict of interest, addresses economic conflicts. See TEX. LOC. GOV'T CODE ANN. §§ 171.001-.010 (Vernon 1999 & Supp. 2006).

[3] Available at http://www.scjc.state.tx.us/sumpub_txt.php (last visited May 30, 2007).

[4] 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 but not 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)(1).

[5] Available at http://www.scjc.state.tx.us/PubStat-2000-1.pdf (Public Information) (last visited May 30, 2007).

[6] 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. CODE CRIM. 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 n.1, JM-739 (1987) at 3. The term "arraigned" is sometimes used to indicate that an individual has been taken before a magistrate, but this usage is inconsistent with the statutory language. See Watson v. State, 762 S.W.2d 591, 594 n.4 (Tex. Crim. App. 1988) (en banc) (explaining that an article 15.17 procedure is not an "arraignment" in Texas law).

[7] See 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. 4.11 (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'").