Could a Texas justice of the peace order community service instead of collecting a fine, and who was liable or insured if someone was hurt?

Texas AG Opinion JM-898: Community Service, Judicial Immunity, and County Insurance

Plain-English summary

Fort Bend County Criminal District Attorney Sam Dick asked whether a justice of the peace could require community service as an alternative condition when deferring a fine, and who would bear liability for injuries to defendants or third parties. He also asked about juvenile service, felony and misdemeanor probation, county insurance, and the Texas Tort Claims Act.

Article 45.54 allowed a justice to defer final disposition of a fine-only misdemeanor and require the defendant to comply with another reasonable condition. Earlier Attorney General opinions had treated the procedure as a form of probation and permitted a reasonable employment condition. JM-898 concluded that the same reasoning allowed community service if the defendant agreed to the deferral conditions.

Reasonableness mattered because article 45.54 set no hour limits. The service had to bear a relationship to the crime, the offender's characteristics, rehabilitation, and public protection. What was reasonable had to be decided case by case.

The justice of the peace was protected by judicial immunity. Ordering reasonable community service under article 45.54 was at least a colorable invocation of the court's jurisdiction. The county also remained immune because section 101.053 of the Civil Practice and Remedies Code excluded claims based on official acts or omissions of a court and judicial functions of a governmental unit. The opinion reached the same result for community service ordered as a condition of statutorily authorized felony or misdemeanor probation.

Juvenile cases had a separate insurance rule. Family Code section 54.041 allowed a city, town, or county operating a program for children serving charitable or educational institutions to purchase insurance against certain third-party claims. Article 8309h also allowed workers' compensation coverage for those children. Adult criminal defendants performing community service were not among the listed classes eligible for county workers' compensation coverage, and the opinion found no authority for county liability insurance covering third-party claims arising from their service.

Currency note

This opinion was issued in 1988. 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.

Common questions

Could a justice of the peace require community service for a fine-only misdemeanor?

Yes, as a reasonable condition of deferring the fine under article 45.54, provided the defendant agreed to the deferral conditions.

How much community service could the justice order?

Article 45.54 supplied no fixed hours. The opinion said reasonableness required a relationship among the amount of service, the offense's severity, the crime, and the offender's characteristics, with the decision made case by case.

Was the justice personally liable if the defendant or someone else was injured?

No. The opinion treated the community-service condition as at least a colorable exercise of judicial jurisdiction, which brought it within judicial immunity.

Was the county liable for injuries arising from the judicial order?

No. The opinion relied on governmental immunity and section 101.053, which excluded official court acts and judicial functions from the Texas Tort Claims Act.

Could a county insure juveniles performing court-ordered service?

Yes. Family Code section 54.041 allowed specified third-party liability coverage for a local juvenile-service program, and article 8309h allowed workers' compensation coverage for participating children.

Could a county add adult probationers to its workers' compensation and liability policies?

No. The opinion found adult criminal defendants outside the statutory classes eligible for political-subdivision workers' compensation and found no authority for the requested liability coverage.

Background and statutory framework

Article 45.54 applied to fine-only misdemeanors and allowed a justice to defer disposition for up to 180 days. During the deferral, the justice could require bond, restitution within the fine amount, counseling, and another reasonable condition other than paying the fine. Attorney General Opinions JM-307 (1985) and JM-526 (1986) characterized this as a form of probation and required the defendant's agreement to the conditions.

The opinion compared article 45.54 with article 42.12, section 10A, which expressly authorized community service for Class A and Class B misdemeanor probationers and set minimum and maximum hours. Article 45.54 had no hour range, so the general reasonableness requirement controlled. Tamez v. State, 534 S.W.2d 686 (Tex. Crim. App. 1976), supported relating a probation condition to the crime and offender.

Turner v. Pruitt, 342 S.W.2d 422 (Tex. 1961), held that a justice of the peace enjoyed immunity for judicial acts within the court's jurisdiction, including a colorable invocation of jurisdiction. Vela v. Cameron County, 703 S.W.2d 721 (Tex. App. - Corpus Christi 1985, writ ref'd n.r.e.), described county governmental immunity absent a Tort Claims Act waiver. The code expressly excluded claims based on official acts or omissions of courts and judicial functions.

For felony and misdemeanor probation, Adams v. McIlhany, 764 F.2d 294 (5th Cir. 1985), cert. denied, 106 S.Ct. 883 (1986), applied absolute judicial immunity to judicial acts not performed in the clear absence of jurisdiction. It drew on Stump v. Sparkman, 435 U.S. 349 (1978), Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872), and McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972).

Family Code section 54.041 governed juvenile service to charitable or educational institutions and authorized local insurance against specified third-party claims. Article 8309h allowed a political subdivision to cover children in such a program through workers' compensation. Its list of covered classifications did not include adult criminal defendants performing community service.

Citations

Statutory authority:

• Code of Criminal Procedure articles 45.54 and 42.12, section 10A
• Penal Code sections 12.21, 12.22, and 12.23
• Civil Practice and Remedies Code section 101.053
• Family Code section 54.041(b)
• V.T.C.S. article 8309h, section 1(2)

Cases:

• Tamez v. State, 534 S.W.2d 686 (Tex. Crim. App. 1976)
• Turner v. Pruitt, 342 S.W.2d 422 (Tex. 1961)
• Vela v. Cameron County, 703 S.W.2d 721 (Tex. App. - Corpus Christi 1985, writ ref'd n.r.e.)
• Adams v. McIlhany, 764 F.2d 294 (5th Cir. 1985), cert. denied, 106 S.Ct. 883 (1986)
• Stump v. Sparkman, 435 U.S. 349 (1978)
• Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)
• McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972)

Prior Attorney General materials referenced: JM-307 (1985), JM-526 (1986), and H-1128 (1978).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-898
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0898.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

May 9, 1988

Honorable Sam W. Dick Opinion No. JM-898
Criminal District Attorney
County Courthouse Re: Authority of a Justice
Fort 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 a 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 JM-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

           (d) comply with any other reasonable con-
       dition. other than payment of all or part of
       the fine

           (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 JM-898 _

       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.
       (Emphasis added.)

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, i.e., 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. See 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. See 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 Opinion 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 long as the condition         of
employment 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 or Not to Fine is Now the Question, 22 So.
Tex. L.J. 249 (1981) concern is expressed about the
requirement of community 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 or
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
§12.21.

     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
§12.22.




                            p. 4422

Honorable Sam W. Dick - Page 5 (JM-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 "may not exceed 100 hours and may not be less
than 24 hours." Code Crim. Proc. art. 42.12, §10A(d)(4),
(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.2d 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 Fine or Not to Fine is Now the Question,
supra. 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. Judges §88, 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

Honorable Sam W. Dick - Page 6 (JM-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.   Rains v. Simpson, 50 Tex. 495; Bumpus v. Fisher, 21 Tex. 561, 568; 13 A.L.R. 134; 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 County 703 S.W.2d 721 (Tex. App. -
Corpus Christi 1985, writ ref'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

Honorable Sam W. Dick - Page 7 (JM-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. McIlhany, 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.
       Stump v. Sparkman, 435 U.S. 349, 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. Bradley v. Fisher, 13 Wall.
       335, 20 L.Ed. 646 (1872); Stump. supra.

          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.        McAlester 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 McAlester        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
       McAlester   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 purposes.

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 JM-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          may purchase insurance
      policies protecting         the city. town,      or
      county against claims brought bv a person
      ;t             t                   ause of action
      that arises from an act of the child while
      rendering 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.      immunity. or jurisdictional       bar
      available to the city. town. or county
      2ts officer        or employees.   nor shall thy:
      Act be construed
                  . .       to  waive. repeal.  or modify
      any provision of the Texas Tort Claims Act, as amended (Article 6252-19, Vernon's Texas Civil Statutes).        (Emphasis added.)

Family Code §54.041(b).

    Article 8309h, 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 JM-898)

          A   political    subdivision    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) 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 political 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 Crim.
           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

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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