The opinion
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