Texas 2009 - 81st Regular

Texas House Bill HB3315 Compare Versions

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1	1	81R1196 KLA-D
2	2	By: Gonzales H.B. No. 3315
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the employment and powers of, and procedures for
8	8	matters referred to, a statutory probate court associate judge.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 54.604, Government Code, is amended by
11	11	amending Subsection (d) and adding Subsections (e), (f), (g), and
12	12	(h) to read as follows:
13	13	(d) The appointment of the associate judge terminates if:
14	14	(1) [the appointing judge vacates the judge's office;
15	15	[(2)] the associate judge becomes a candidate for
16	16	election to public office; or
17	17	(2) [(3)] the commissioners court does not appropriate
18	18	funds in the county's budget to pay the salary of the associate
19	19	judge.
20	20	(e) If an associate judge serves a single court and the
21	21	appointing judge vacates the judge's office, the associate judge's
22	22	employment continues, subject to Subsections (d) and (h), unless
23	23	the successor appointed or elected judge terminates that
24	24	employment.
25	25	(f) If an associate judge serves two courts and one of the
26	26	appointing judges vacates the judge's office, the associate judge's
27	27	employment continues, subject to Subsections (d) and (h), unless
28	28	the successor appointed or elected judge terminates that employment
29	29	or the judge of the other court served by the associate judge
30	30	terminates that employment as provided by Subsection (c).
31	31	(g) If an associate judge serves more than two courts and an
32	32	appointing judge vacates the judge's office, the associate judge's
33	33	employment continues, subject to Subsections (d) and (h), unless:
34	34	(1) if no successor judge has been elected or
35	35	appointed, the majority of the judges of the other courts the
36	36	associate judge serves vote to terminate that employment; or
37	37	(2) if a successor judge has been elected or
38	38	appointed, the majority of the judges of the courts the associate
39	39	judge serves, including the successor judge, vote to terminate that
40	40	employment as provided by Subsection (b).
41	41	(h) Notwithstanding the powers of an associate judge
42	42	provided by Section 54.610, an associate judge whose employment
43	43	continues as provided by Subsection (e), (f), or (g) after the judge
44	44	of a court served by the associate judge vacates the judge's office
45	45	may perform administrative functions with respect to that court,
46	46	but may not perform any judicial function, including any power
47	47	prescribed by Section 54.610, with respect to that court until a
48	48	successor judge is appointed or elected.
49	49	SECTION 2. Section 54.610, Government Code, is amended to
50	50	read as follows:
51	51	Sec. 54.610. POWERS OF ASSOCIATE JUDGE. (a) Except as
52	52	limited by an order of referral, an associate judge may:
53	53	(1) conduct a hearing;
54	54	(2) hear evidence;
55	55	(3) compel production of relevant evidence;
56	56	(4) rule on the admissibility of evidence;
57	57	(5) issue a summons for the appearance of witnesses;
58	58	(6) examine a witness;
59	59	(7) swear a witness for a hearing;
60	60	(8) make findings of fact on evidence;
61	61	(9) formulate conclusions of law;
62	62	(10) recommend an order to be rendered in a case;
63	63	(11) regulate all proceedings in a hearing before the
64	64	associate judge; [and]
65	65	(12) take action as necessary and proper for the
66	66	efficient performance of the associate judge's duties;
67	67	(13) order the attachment of a witness or party who
68	68	fails to obey a subpoena;
69	69	(14) order the detention of a witness or party found
70	70	guilty of contempt, pending approval by the referring court as
71	71	provided by Section 54.616;
72	72	(15) without prejudice to the right to a de novo
73	73	hearing under Section 54.618, render and sign:
74	74	(A) a final order agreed to in writing as to both
75	75	form and substance by all parties;
76	76	(B) a final default order;
77	77	(C) a temporary order;
78	78	(D) a final order in a case in which a party files
79	79	an unrevoked waiver made in accordance with Rule 119, Texas Rules of
80	80	Civil Procedure, that waives notice to the party of the final
81	81	hearing or waives the party's appearance at the final hearing;
82	82	(E) an order specifying that the court clerk
83	83	shall issue:
84	84	(i) letters testamentary or of
85	85	administration; or
86	86	(ii) letters of guardianship; or
87	87	(F) an order for inpatient or outpatient mental
88	88	health, mental retardation, or chemical dependency services; and
89	89	(16) sign a final order that includes a waiver of the
90	90	right to a de novo hearing in accordance with Section 54.618.
91	91	(b) An associate judge may, in the interest of justice,
92	92	refer a case back to the referring court regardless of whether a
93	93	timely objection to the associate judge hearing the trial on the
94	94	merits or presiding at a jury trial has been made by any party.
95	95	(c) An order described by Subsection (a)(15) that is
96	96	rendered and signed by an associate judge constitutes an order of
97	97	the referring court. The judge of the referring court shall sign
98	98	the order not later than the 30th day after the date the associate
99	99	judge signs the order.
100	100	(d) An answer filed by or on behalf of a party who previously
101	101	filed a waiver described in Subsection (a)(15)(D) revokes that
102	102	waiver.
103	103	SECTION 3. Section 54.612, Government Code, is amended by
104	104	amending Subsections (a), (b), and (c) and adding Subsection (e) to
105	105	read as follows:
106	106	(a) A court reporter may be provided [is not required]
107	107	during a hearing held by an associate judge appointed under this
108	108	subchapter unless required by other law. A court reporter is
109	109	required to be provided when the associate judge presides over a
110	110	jury trial.
111	111	(b) A party, the associate judge, or the referring court may
112	112	provide for a reporter during the hearing, if one is not otherwise
113	113	provided.
114	114	(c) Except as provided by Subsection (a), in the absence of
115	115	a court reporter or on agreement of the parties, the [The] record
116	116	[of a hearing before an associate judge] may be preserved by any
117	117	means approved by the referring court.
118	118	(e) On a request for a de novo hearing, the referring court
119	119	may consider testimony or other evidence in the record, if the
120	120	record is taken by a court reporter, in addition to witnesses or
121	121	other matters presented under Section 54.618.
122	122	SECTION 4. Section 54.614, Government Code, is amended to
123	123	read as follows:
124	124	Sec. 54.614. REPORT. (a) The associate judge's report may
125	125	contain the associate judge's findings, conclusions, or
126	126	recommendations. The associate judge shall prepare a written
127	127	report in the form directed by the referring court, including in the
128	128	form of:
129	129	(1) [. The form may be] a notation on the referring
130	130	court's docket sheet; or
131	131	(2) a proposed order.
132	132	(b) After a hearing, the associate judge shall provide the
133	133	parties participating in the hearing notice of the substance of the
134	134	associate judge's report, including any proposed order.
135	135	(c) Notice may be given to the parties:
136	136	(1) in open court, by an oral statement or a copy of
137	137	the associate judge's written report; [or]
138	138	(2) by certified mail, return receipt requested; or
139	139	(3) by facsimile transmission.
140	140	(d) There is a rebuttable presumption that notice is
141	141	received [The associate judge shall certify the date of mailing of
142	142	notice by certified mail. Notice is considered given] on the [third
143	143	day after the] date stated on:
144	144	(1) the signed return receipt, if notice was provided
145	145	by certified mail; or
146	146	(2) the confirmation page produced by the facsimile
147	147	machine, if notice was provided by facsimile transmission [of
148	148	mailing].
149	149	(e) After a hearing conducted by an associate judge, the
150	150	associate judge shall send the associate judge's signed and dated
151	151	report, including any proposed order, and all other papers relating
152	152	to the case to the referring court.
153	153	SECTION 5. The heading to Section 54.615, Government Code,
154	154	is amended to read as follows:
155	155	Sec. 54.615. NOTICE OF RIGHT TO DE NOVO HEARING BEFORE
156	156	REFERRING COURT [APPEAL].
157	157	SECTION 6. Section 54.615(a), Government Code, is amended
158	158	to read as follows:
159	159	(a) An associate judge shall give all parties notice of the
160	160	right to a de novo hearing before [of appeal to the judge of] the
161	161	referring court.
162	162	SECTION 7. Section 54.616, Government Code, is amended to
163	163	read as follows:
164	164	Sec. 54.616. ORDER OF COURT. (a) Pending a de novo hearing
165	165	before [appeal of the associate judge's report to] the referring
166	166	court, a proposed order or judgment [the decisions and
167	167	recommendations] of the associate judge has [judge's report have]
168	168	the force and effect, and is [are] enforceable as, an order or
169	169	judgment of the referring court, except for an order [orders]
170	170	providing for [incarceration or for] the appointment of a receiver.
171	171	(b) Except as provided by Section 54.610(c), if a request
172	172	for a de novo hearing before [If an appeal to] the referring court
173	173	is not timely filed or the right to a de novo hearing before [an
174	174	appeal to] the referring court is waived, the proposed order or
175	175	judgment [findings and recommendations] of the associate judge
176	176	becomes [become] the order or judgment of the referring court at the
177	177	time the judge of the referring court signs the proposed [an] order
178	178	or judgment [conforming to the associate judge's report].
179	179	SECTION 8. Section 54.617, Government Code, is amended to
180	180	read as follows:
181	181	Sec. 54.617. JUDICIAL ACTION ON ASSOCIATE JUDGE'S PROPOSED
182	182	ORDER OR JUDGMENT [REPORT]. (a) Unless a party files a written
183	183	request for a de novo hearing before the referring court [notice of
184	184	appeal], the referring court may:
185	185	(1) adopt, modify, or reject the associate judge's
186	186	proposed order or judgment [report];
187	187	(2) hear further evidence; or
188	188	(3) recommit the matter to the associate judge for
189	189	further proceedings.
190	190	(b) The judge of the referring court shall sign a proposed
191	191	order or judgment the court adopts as provided by Subsection (a)(1)
192	192	not later than the 30th day after the date the associate judge
193	193	signed the order or judgment.
194	194	SECTION 9. Section 54.618, Government Code, is amended to
195	195	read as follows:
196	196	Sec. 54.618. DE NOVO HEARING BEFORE [APPEAL TO] REFERRING
197	197	COURT. (a) A party may request a de novo hearing before the
198	198	referring court [appeal an associate judge's report] by filing with
199	199	the clerk of the referring court a written request [notice of
200	200	appeal] not later than the seventh working [third] day after the
201	201	date the party receives notice of the substance of the associate
202	202	judge's report as provided by Section 54.614.
203	203	(b) A request for a de novo hearing under this section must
204	204	specify the issues that will be presented [An appeal] to the
205	205	referring court [must be made in writing and specify the findings
206	206	and conclusions of the associate judge to which the party objects.
207	207	The appeal is limited to the findings and conclusions specified in
208	208	the written appeal].
209	209	(c) In the de novo hearing before the referring court, the
210	210	[The] parties may present witnesses [on appeal to the referring
211	211	court as in a hearing de novo] on the issues specified [raised] in
212	212	the request for hearing [appeal]. The referring court may also
213	213	consider the record from the hearing before the associate judge,
214	214	including the charge to and verdict returned by a jury, if the
215	215	record was taken by a court reporter.
216	216	(d) Notice of a request for a de novo hearing before [an
217	217	appeal to] the referring court must be given to the opposing
218	218	attorney in the manner provided by Rule 21a, Texas Rules of Civil
219	219	Procedure.
220	220	(e) If a request for a de novo hearing before [an appeal to]
221	221	the referring court is filed by a party, any other party may file a
222	222	request for a de novo hearing before [an appeal to] the referring
223	223	court not later than the seventh day after the date of filing of the
224	224	initial request [appeal].
225	225	(f) The referring court, after notice to the parties, shall
226	226	hold a de novo hearing [on all appeals] not later than the 30th day
227	227	after the date on which the initial request for a de novo hearing
228	228	[appeal] was filed with the clerk of the referring court, unless all
229	229	of the parties agree to a later date.
230	230	(g) Before the start of a hearing conducted by an associate
231	231	judge, the parties may waive the right of a de novo hearing before
232	232	[appeal to] the referring court. The waiver may be in writing or on
233	233	the record.
234	234	(h) The denial of relief to a party after a de novo hearing
235	235	under this section or a party's waiver of the right to a de novo
236	236	hearing before the referring court does not affect the right of a
237	237	party to file a motion for new trial, motion for judgment
238	238	notwithstanding the verdict, or other post-trial motion.
239	239	(i) A party may not demand a second jury in a de novo hearing
240	240	before the referring court if the associate judge's proposed order
241	241	or judgment resulted from a jury trial.
242	242	SECTION 10. Section 54.619, Government Code, is amended to
243	243	read as follows:
244	244	Sec. 54.619. APPELLATE REVIEW. (a) A party's failure to
245	245	request a de novo hearing before [Failure to appeal to] the
246	246	referring court or a party's waiver of the right to request a de
247	247	novo hearing before[, by waiver or otherwise, the approval by] the
248	248	referring court [of an associate judge's report] does not deprive
249	249	the [a] party of the right to appeal to or request other relief from
250	250	a court of appeals or the supreme court.
251	251	(b) Except as provided by Subsection (c), the [The] date the
252	252	judge of a referring court signs an order or judgment is the
253	253	controlling date for the purposes of appeal to or request for other
254	254	relief from a court of appeals or the supreme court.
255	255	(c) The date an order described by Section 54.610(a)(15) is
256	256	signed by an associate judge is the controlling date for the purpose
257	257	of an appeal to or a request for other relief relating to the order
258	258	from a court of appeals or the supreme court.
259	259	SECTION 11. The changes in law made by this Act apply to a
260	260	matter referred to a statutory probate court associate judge on or
261	261	after the effective date of this Act. A matter referred to a
262	262	statutory probate court associate judge before the effective date
263	263	of this Act is governed by the law in effect on the date the matter
264	264	was referred to the associate judge, and the former law is continued
265	265	in effect for that purpose.
266	266	SECTION 12. This Act takes effect September 1, 2009.