Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 14, 2009
The Honorable D. Matt Bingham Opinion No. GA-0691
Smith County Criminal District Attorney
100 North Broadway, 4th Floor Re: Whether a state judge is authorized to permit
Tyler, Texas 75702 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 ajudge's authority to grant probationers permission to travel
or reside outside of the state and the· potential liability that may result therefrom. l You first ask
whether article 42.12 ofthe 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 ofthe court having jurisdiction ofthe case shall determine
the conditions ofcommunity 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, § II(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.
lRequest Letter (available at http://www.texasattorneygeneral.gov).
2Although 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).
The Honorable D. Matt Bingham - Page 2 (GA-0691)
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 ofthe 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.
The Honorable D. Matt Bingham - Page 3 (GA-0691)
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