Section 36.04 is the criminal backstop to the rule against ex parte communication. It is the reason your lawyer tells you never to write to the judge, call chambers, or approach a prosecutor on your own.
What the Statute Says
(a) A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law.
(b) For purposes of this section, "adjudicatory proceeding" means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined.
(c) An offense under this section is a Class A misdemeanor.
The Elements
Private communication. The communication must be private — outside the presence of the other parties. Argument made in open court, or in a filed document served on everyone, is not covered.
To a public servant exercising official discretion. Judges, magistrates, and hearing officers, but also any public servant with discretionary authority in an adjudicatory proceeding.
Intent to influence on unauthorized considerations. This is the heart of the offense. The communication must be intended to influence the outcome based on something other than what the law permits — sympathy outside the record, personal relationships, political pressure, or private appeals.
Why Defendants Get Into Trouble Here
People facing charges want to explain themselves. They write letters describing their children, their job, their remorse. Family members call the court. In a family violence case, a complainant writes to the judge asking that the case be dropped.
These are understandable impulses and they are counterproductive as well as risky. Judges are prohibited by Canon 3(B)(8) of the Texas Code of Judicial Conduct from considering ex parte communications; the letter will not be read, may be forwarded to both sides, and can generate a referral.
The right path is the effective one: mitigation packages, letters of support, treatment records, and employment documentation, presented through counsel, on the record, with notice to the State. That material is considered, and it works.
Defenses
No intent to influence on unauthorized grounds. A request for information about a setting, a scheduling inquiry to a coordinator, or a filing made in good faith is not this offense.
Not private. Communications copied to all parties are not ex parte.
Not an adjudicatory proceeding. Legislative advocacy and general policy communications fall outside the definition.
No discretion. Communications to clerical staff who exercise no official discretion in the outcome.
Related
- Harris County criminal courts — how to contact a court properly
- Tampering with a witness (36.05)
- Bribery and obstruction offenses
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.