Anyone ever have a judge order a payment to a specified charity as a condition of probation? I don't find any cases, but sounds very problematic and appears contrary to Art. 42.12, Sec. 11(b).
what do you do about it? Our probation chief "allows" payments to what has been described in the courtroom by the judge as "a fund to support our troops overseas" in lieu of community service hours.
The Judge believes that there is no problem. The opinion of the prosecutor is neither requested nor desired. Out of curiosity...is the county conceivably liable on this? If so, how can you protect it?
Lisa L. Peterson
Nolan County Attorney
Also see Ethics Op. No. 241 (1999) by the Committee on Judicial Ethics of the State Bar of Texas Judicial Section:
Conclusion: "Judicial power should not be used to force litigants to provide gifts or services to specified charities, or to other organizations; judges should not be choosing among competing charities."
I'll let the criminal masterminds here speak to the art. 42.12 minutiae of this situation. But a judge acting in a judicial capacity construing, applying and enforcing state law is not a county officer for purposes of a 42 U.S.C. sec. 1983 claim. A state law claim would require the ability to tag the judge and then bootstrap vicarious liability onto the county. The problem there is that the judge will have absolute judicial immunity from a state law claim. So it appears to me that, despite the judge's possible perception of invincibility, this is an issue for the Commission on Judicial Conduct and/or an appellate court.
In general, judges only have authority specified in statute for requiring financial payments in criminal cases. So, your judge has to locate a statute that says he/she can require a donation. There are only a few (such as CrimeStopper).
Many courts in our area allow a probationer to choose to buy his community service hours provided he is satisfactorily performing his other duties, but he is not ordered to do so. Most who do so are happy to pay a couple of bucks to avoid working off the community service.
This is authorized specifically for food banks in 42.12(16)(f)
The fact that specific charitable organizations/entities are referenced in some statutes is some proof that entities NOT listed in statute are not appropriate recipients of judges' largesse.
Thanks very much for the feedback.
I personally am troubled by a judge or department that allows a person to "buy out" of community service. That creates a distinction based upon wealth wholly contrary to our society's norms. That said, what can we do? Well, we can point out the problem to the court or agency for one. And a person who cannot afford to have mommy or daddy "buy out" of community service could make a stink in court.
John "never will be an elected judge" R
Never say never, John.
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