Can a Texas judge let a probationer travel or move out of state?

TX AG Opinion GA-0691: Can a Texas judge let a probationer travel or move out of state?

Plain-English summary

A criminal district attorney asked two questions about a judge's authority over probationers. First, does Code of Criminal Procedure article 42.12 let judges allow probationers to travel temporarily outside Texas or to live outside Texas? Second, if a judge is sued for allowing that and claims Texas judicial immunity, must other states recognize the full scope of that immunity?

On the first question, the Attorney General read article 42.12 as a broad grant of discretion. The statute says the judge with jurisdiction sets the conditions of community supervision and may alter them at any time, and may impose any reasonable condition designed to protect the community or victim or to punish, rehabilitate, or reform the defendant. Its non-exhaustive list of conditions includes requiring the defendant to remain within a specified place, and a separate provision treats any defendant who leaves the state without the judge's permission as a fugitive subject to extradition. By authorizing judges to confine defendants to a place and to require permission before leaving the state, the Legislature necessarily authorized judges to grant that permission. So article 42.12 gives judges broad discretion to issue orders permitting probationers to travel or relocate outside the state.

On the second question, the opinion found no authority directly on point. It noted the settled federal rule that judges are not liable in civil actions for their judicial acts, even acts in excess of jurisdiction or alleged to be malicious or corrupt, and pointed to a North Dakota case where a state court recognized another state's judicial immunity through the doctrine of comity. The opinion concluded there is a basis for other states' courts to recognize the immunity Texas grants its judges, but that such decisions would be made, in the first instance, by the courts of those other states.

Currency note

This opinion was issued in 2009. 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.

Article 42.12 governing community supervision was substantially reorganized after 2009 (much of it recodified into the Code of Criminal Procedure's chapter on community supervision). Confirm the current statute before relying on this analysis.

Who this opinion affected (as of 2009)

Judges setting probation terms: The opinion concluded that article 42.12 gave them broad discretion to permit a probationer to travel temporarily or relocate outside Texas.

Probationers (community supervision defendants): The opinion explained that leaving the state without the judge's permission made a defendant a fugitive subject to extradition, while the judge could grant permission to travel or move.

Judges facing out-of-state suits: The opinion found a basis, through comity, for other states' courts to recognize Texas judicial immunity, while noting those courts decide the question for themselves.

Common questions

Can a Texas judge approve out-of-state travel for someone on probation?
Yes. The opinion read article 42.12's authority to confine a defendant to a place and require permission to leave the state as including the power to grant that permission.

What happens if a probationer leaves the state without permission?
The opinion noted that article 42.12 treats such a defendant as a fugitive from justice subject to extradition.

Will other states honor a Texas judge's immunity if the judge is sued there?
The opinion found a basis for other states to recognize Texas judicial immunity through comity, but said those states' courts decide that in the first instance.

Background and statutory framework

Article 42.12 gives the judge with jurisdiction authority to determine and alter the conditions of community supervision and to impose any reasonable condition designed to protect or restore the community or victim or to punish, rehabilitate, or reform the defendant (Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (Vernon Supp. 2008)), including a condition to remain within a specified place (id. § 11(a)(7)). A defendant who removes himself from the state without the judge's permission is a fugitive subject to extradition (id. § 17(b)); the statute refers to probation as "community supervision" (id. § 2(2)). Federal law holds judges immune from civil liability for judicial acts even in excess of jurisdiction or alleged to be malicious (Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Bradley v. Fisher, 80 U.S. 335, 351 (1871)), and a state court has recognized another state's judicial immunity through comity (Hansen v. Scott, 687 N.W.2d 247, 250 (N.D. 2004)).

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a), (a)(7) (Vernon Supp. 2008)
• Tex. Code Crim. Proc. Ann. art. 42.12, § 17(b)
• Tex. Code Crim. Proc. Ann. art. 42.12, § 2(2) (Vernon Supp. 2008)

Cases:

• Stump v. Sparkman, 435 U.S. 349, 355-56 (1978)
• Bradley v. Fisher, 80 U.S. 335, 351 (1871)
• Hansen v. Scott, 687 N.W.2d 247, 250 (N.D. 2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0691
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0691.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 14, 2009

The Honorable D. Matt Bingham
Smith County Criminal District Attorney
100 North Broadway, 4th Floor
Tyler, Texas 75702

Opinion No. GA-0691

Re: Whether a state judge is authorized to permit felony and misdemeanor probationers to travel temporarily outside the state or to reside outside the state (RQ-0723-GA)

Dear Mr. Bingham:

You ask two questions related to a judge's authority to grant probationers permission to travel or reside outside of the state and the potential liability that may result therefrom.[1] You first ask whether article 42.12 of the Code of Criminal Procedure authorizes judges to allow probationers to travel or relocate outside of the state.[2] See Request Letter at 2. In article 42.12, the Legislature provided courts with broad discretion to set the terms of a defendant's community supervision:

The judge of the court having jurisdiction of the case shall determine the conditions of community supervision and may, at any time, during the period of community supervision alter or modify the conditions. The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a) (Vernon Supp. 2008). The Legislature included in its non-exhaustive list of possible conditions a condition that the defendant "[r]emain within a specified place." Id. at § 11(a)(7). The Legislature also provided that "[a]ny defendant who removes himself from the state without permission of the judge having jurisdiction of the case shall be considered a fugitive from justice and shall be subject to extradition as provided by law." Id. § 17(b). By authorizing judges to order defendants to remain in a specified place and to prevent defendants from leaving the state without permission, the Legislature authorized judges to grant permission for those same defendants to travel or relocate. Thus, through article 42.12, the Legislature has given judges broad discretion to issue orders permitting probationers to travel or relocate outside the state.

[Footnote 2: Although you ask about "probation," article 42.12 instead uses the term "community supervision" to refer to probation in its various forms. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 2(2) (Vernon Supp. 2008).]

Your second question asks whether other states must "recognize the full scope of judicial immunity granted by Texas to judges" in instances where those judges may be sued for allowing a probationer to travel or relocate outside of the state. See Request Letter at 2. We have been unable to find any authority directly addressing this question. However, established federal law recognizes that "judges . . . are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Bradley v. Fisher, 80 U.S. 335, 351 (1871). In instances similar to that about which you inquire, state courts have found immunity to exist through the doctrine of comity. See, e.g., Hansen v. Scott, 687 N.W.2d 247, 250 (N.D. 2004). We accordingly find a basis by which courts of other states could recognize the immunity granted to Texas judges for their judicial acts; however such decisions would, in the first instance, be decided by judges of other states.

SUMMARY

Through Code of Criminal Procedure article 42.12, the Legislature has authorized judges to determine the conditions of community supervision, including conditions about where the probationer may live and travel. This provision gives judges broad discretion to issue orders permitting probationers to travel or relocate outside the state.

Established common law provides that judges are not liable to civil actions for their judicial acts, and thus, it is likely that courts of other states would recognize the full scope of judicial immunity granted to Texas judges. However, this is a question for those courts to decide in the first instance.

Very truly yours,

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee