Texas 2009 - 81st Regular

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11 S.B. No. 683
22
33
44 AN ACT
55 relating to the employment, powers, and duties of and procedures
66 for matters referred to a statutory probate court judge or
77 associate judge.
88 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
99 SECTION 1. Subsections (d) and (h), Section 25.0022,
1010 Government Code, are amended to read as follows:
1111 (d) The presiding judge shall:
1212 (1) ensure the promulgation of local rules of
1313 administration in accordance with policies and guidelines set by
1414 the supreme court;
1515 (2) advise local statutory probate court judges on
1616 case flow management practices and auxiliary court services;
1717 (3) perform a duty of a local administrative statutory
1818 probate court judge if the local administrative judge does not
1919 perform that duty;
2020 (4) appoint an assistant presiding judge of the
2121 statutory probate courts;
2222 (5) call and preside over annual meetings of the
2323 judges of the statutory probate courts at a time and place in the
2424 state as designated by the presiding judge;
2525 (6) call and convene other meetings of the judges of
2626 the statutory probate courts as considered necessary by the
2727 presiding judge to promote the orderly and efficient administration
2828 of justice in the statutory probate courts;
2929 (7) study available statistics reflecting the
3030 condition of the dockets of the probate courts in the state to
3131 determine the need for the assignment of judges under this section;
3232 [and]
3333 (8) compare local rules of court to achieve uniformity
3434 of rules to the extent practical and consistent with local
3535 conditions; and
3636 (9) assign a judge or former or retired judge of a
3737 statutory probate court to hear a case under the circumstances
3838 described by Section 25.002201(b).
3939 (h) Subject to Section 25.002201, a [A] judge or a former or
4040 retired judge of a statutory probate court may be assigned by the
4141 presiding judge of the statutory probate courts to hold court in a
4242 statutory probate court, a county court, or any statutory court
4343 exercising probate jurisdiction when:
4444 (1) a statutory probate judge requests assignment of
4545 another judge to the judge's court;
4646 (2) a statutory probate judge is absent, disabled, or
4747 disqualified for any reason;
4848 (3) a statutory probate judge is present or is trying
4949 cases as authorized by the constitution and laws of this state and
5050 the condition of the court's docket makes it necessary to appoint an
5151 additional judge;
5252 (4) the office of a statutory probate judge is vacant;
5353 (5) the presiding judge of an administrative judicial
5454 district requests the assignment of a statutory probate judge to
5555 hear a probate matter in a county court or statutory county court;
5656 (6) the presiding judge of the administrative judicial
5757 district fails to timely assign a judge to replace a recused or
5858 disqualified statutory probate court judge as described by Section
5959 25.002201(b) [a motion to recuse the judge of a statutory probate
6060 court has been filed];
6161 (7) a county court judge requests the assignment of a
6262 statutory probate judge to hear a probate matter in the county
6363 court; or
6464 (8) a local administrative statutory probate court
6565 judge requests the assignment of a statutory probate judge to hear a
6666 matter in a statutory probate court.
6767 SECTION 2. Subchapter B, Chapter 25, Government Code, is
6868 amended by adding Section 25.002201 to read as follows:
6969 Sec. 25.002201. ASSIGNMENT OF JUDGE ON RECUSAL OR
7070 DISQUALIFICATION. (a) Not later than the 15th day after the date
7171 an order of recusal or disqualification of a statutory probate
7272 court judge is issued in a case, the presiding judge of the
7373 administrative judicial district shall assign a statutory probate
7474 court judge or a former or retired judge of a statutory probate
7575 court to hear the case if:
7676 (1) the judge of the statutory probate court recused
7777 himself or herself under Section 25.00255(g)(1)(A);
7878 (2) the judge of the statutory probate court
7979 disqualified himself or herself under Section 25.00255(g-1);
8080 (3) the order was issued under Section
8181 25.00255(i-3)(1); or
8282 (4) the presiding judge of the administrative judicial
8383 district receives notice and a request for assignment from the
8484 clerk of the statutory probate court under Section 25.00255(l).
8585 (b) If the presiding judge of an administrative judicial
8686 district does not assign a judge under Subsection (a) within the
8787 time prescribed by that subsection, the presiding judge of the
8888 statutory probate courts may assign a judge to hear the case instead
8989 of the presiding judge of the administrative judicial district
9090 making the assignment under that subsection.
9191 (c) The provisions of Section 25.0022 applicable to a judge
9292 assigned under that section apply to the same extent to a judge
9393 assigned under the authority of this section.
9494 SECTION 3. Section 25.00255, Government Code, is amended by
9595 amending Subsections (f), (g), (h), and (i) and adding Subsections
9696 (g-1), (i-1), (i-2), (i-3), (i-4), (i-5), (l), and (m) to read as
9797 follows:
9898 (f) Before further proceedings in a case in which a motion
9999 for the recusal or disqualification of a judge has been filed, the
100100 judge shall:
101101 (1) recuse or disqualify himself or herself; or
102102 (2) request the assignment of a judge to hear the
103103 motion by forwarding the motion and opposing and concurring
104104 statements to the presiding judge of the statutory probate courts
105105 as provided by Subsection (h).
106106 (g) A judge who recuses himself or herself:
107107 (1) shall enter an order of recusal and:
108108 (A) if the judge serves a statutory probate court
109109 located in a county with only one statutory probate court, request
110110 that the presiding judge of the administrative judicial district
111111 assign [statutory probate courts request the assignment of] a judge
112112 under Section 25.002201 to hear the case; or
113113 (B) subject to Subsection (l), if the judge
114114 serves a statutory probate court located in a county with more than
115115 one statutory probate court, request that the clerk who serves the
116116 statutory probate courts in that county randomly reassign the case
117117 to a judge of one of the other statutory probate courts located in
118118 the county [motion for recusal or disqualification as provided by
119119 Subsection (i)]; and
120120 (2) may not take other action in the case except for
121121 good cause stated in the order in which the action is taken.
122122 (g-1) A judge who disqualifies himself or herself:
123123 (1) shall enter an order of disqualification and
124124 request that the presiding judge of the administrative judicial
125125 district assign a judge under Section 25.002201 to hear the case;
126126 and
127127 (2) may not take other action in the case.
128128 (h) A judge who does not recuse or disqualify himself or
129129 herself:
130130 (1) shall forward to the presiding judge of the
131131 statutory probate courts, in either original form or certified
132132 copy, an order of referral, the motion for recusal or
133133 disqualification, and all opposing and concurring statements; and
134134 (2) may not take other action in the case during the
135135 time after the filing of the motion for recusal or disqualification
136136 and before a hearing on the motion, except for good cause stated in
137137 the order in which the action is taken.
138138 (i) After receiving a request under Subsection [(g) or] (h),
139139 the presiding judge of the statutory probate courts shall
140140 immediately forward the request to the presiding judge of the
141141 administrative judicial district and request that the presiding
142142 judge of the administrative judicial district assign a judge to
143143 hear the motion for recusal or disqualification. Not later than the
144144 15th day after the date [On receipt of the request,] the presiding
145145 judge of the administrative judicial district receives the request,
146146 the presiding judge shall:
147147 (1) [immediately] set a hearing before himself or
148148 herself or a judge designated by the presiding judge, except that
149149 the presiding judge may not designate a judge of a statutory probate
150150 court in the same county as the statutory probate court served by
151151 the judge who is the subject of the motion;
152152 (2) cause notice of the hearing to be given to all
153153 parties or their counsel to the case; and
154154 (3) make other orders, including orders for interim or
155155 ancillary relief, in the pending case.
156156 (i-1) If the presiding judge of the administrative judicial
157157 district does not assign a judge to hear a motion for recusal or
158158 disqualification within the time prescribed by Subsection (i), the
159159 presiding judge of the statutory probate courts may assign a judge
160160 to hear the motion and take other action under that subsection.
161161 (i-2) A judge who hears a motion for recusal or
162162 disqualification under Subsection (i) or (i-1) may also hear any
163163 amended or supplemented motion for recusal or disqualification
164164 filed in the case.
165165 (i-3) If a motion for recusal or disqualification is granted
166166 after a hearing conducted as provided by Subsection (i) or (i-1),
167167 the judge who heard the motion shall:
168168 (1) if the judge subject to recusal or
169169 disqualification serves a statutory probate court located in a
170170 county with only one statutory probate court, enter an order of
171171 recusal or disqualification, as appropriate, and request that the
172172 presiding judge of the administrative judicial district assign a
173173 judge under Section 25.002201 to hear the case; or
174174 (2) subject to Subsection (l), if the judge subject to
175175 recusal or disqualification serves a statutory probate court
176176 located in a county with more than one statutory probate court,
177177 enter an order of recusal or disqualification, as appropriate, and
178178 request that the clerk who serves the statutory probate courts in
179179 that county randomly reassign the case to a judge of one of the
180180 other statutory probate courts located in the county.
181181 (i-4) The presiding judge of an administrative judicial
182182 district may delegate the judge's authority to make orders of
183183 interim or ancillary relief under Subsection (i)(3) to the
184184 presiding judge of the statutory probate courts.
185185 (i-5) A judge assigned to hear a motion for recusal or
186186 disqualification under Subsection (i) is entitled to receive the
187187 same salary, compensation, and expenses, and to be paid in the same
188188 manner and from the same fund, as a judge otherwise assigned under
189189 Section 25.0022, except that a judge assigned under Subsection (i)
190190 shall provide the information required by Section 25.0022(l) to the
191191 presiding judge of the administrative judicial district, who shall
192192 immediately forward the information to the presiding judge of the
193193 statutory probate courts.
194194 (l) If a clerk of a statutory probate court is unable to
195195 reassign a case as requested under Subsection (g)(1)(B) or (i-3)(2)
196196 because the other statutory probate court judges in the county have
197197 been recused or disqualified or are otherwise unavailable to hear
198198 the case, the clerk shall immediately notify the presiding judge of
199199 the administrative judicial district and request that the presiding
200200 judge of the administrative judicial district assign a judge under
201201 Section 25.002201 to hear the case.
202202 (m) The clerk of a statutory probate court shall immediately
203203 notify and provide to the presiding judge of the statutory probate
204204 courts a copy of an order of recusal or disqualification issued with
205205 respect to the judge of the statutory probate court.
206206 SECTION 4. Section 54.604, Government Code, is amended by
207207 amending Subsection (d) and adding Subsections (e), (f), (g), and
208208 (h) to read as follows:
209209 (d) The appointment of the associate judge terminates if:
210210 (1) [the appointing judge vacates the judge's office;
211211 [(2)] the associate judge becomes a candidate for
212212 election to public office; or
213213 (2) [(3)] the commissioners court does not
214214 appropriate funds in the county's budget to pay the salary of the
215215 associate judge.
216216 (e) If an associate judge serves a single court and the
217217 appointing judge vacates the judge's office, the associate judge's
218218 employment continues, subject to Subsections (d) and (h), unless
219219 the successor appointed or elected judge terminates that
220220 employment.
221221 (f) If an associate judge serves two courts and one of the
222222 appointing judges vacates the judge's office, the associate judge's
223223 employment continues, subject to Subsections (d) and (h), unless
224224 the successor appointed or elected judge terminates that employment
225225 or the judge of the other court served by the associate judge
226226 terminates that employment as provided by Subsection (c).
227227 (g) If an associate judge serves more than two courts and an
228228 appointing judge vacates the judge's office, the associate judge's
229229 employment continues, subject to Subsections (d) and (h), unless:
230230 (1) if no successor judge has been elected or
231231 appointed, the majority of the judges of the other courts the
232232 associate judge serves vote to terminate that employment; or
233233 (2) if a successor judge has been elected or
234234 appointed, the majority of the judges of the courts the associate
235235 judge serves, including the successor judge, vote to terminate that
236236 employment as provided by Subsection (b).
237237 (h) Notwithstanding the powers of an associate judge
238238 provided by Section 54.610, an associate judge whose employment
239239 continues as provided by Subsection (e), (f), or (g) after the judge
240240 of a court served by the associate judge vacates the judge's office
241241 may perform administrative functions with respect to that court,
242242 but may not perform any judicial function, including any power
243243 prescribed by Section 54.610, with respect to that court until a
244244 successor judge is appointed or elected.
245245 SECTION 5. Section 54.610, Government Code, is amended to
246246 read as follows:
247247 Sec. 54.610. POWERS OF ASSOCIATE JUDGE. (a) Except as
248248 limited by an order of referral, an associate judge may:
249249 (1) conduct a hearing;
250250 (2) hear evidence;
251251 (3) compel production of relevant evidence;
252252 (4) rule on the admissibility of evidence;
253253 (5) issue a summons for the appearance of witnesses;
254254 (6) examine a witness;
255255 (7) swear a witness for a hearing;
256256 (8) make findings of fact on evidence;
257257 (9) formulate conclusions of law;
258258 (10) recommend an order to be rendered in a case;
259259 (11) regulate all proceedings in a hearing before the
260260 associate judge; [and]
261261 (12) take action as necessary and proper for the
262262 efficient performance of the associate judge's duties;
263263 (13) order the attachment of a witness or party who
264264 fails to obey a subpoena;
265265 (14) order the detention of a witness or party found
266266 guilty of contempt, pending approval by the referring court as
267267 provided by Section 54.616;
268268 (15) without prejudice to the right to a de novo
269269 hearing under Section 54.618, render and sign:
270270 (A) a final order agreed to in writing as to both
271271 form and substance by all parties;
272272 (B) a final default order;
273273 (C) a temporary order;
274274 (D) a final order in a case in which a party files
275275 an unrevoked waiver made in accordance with Rule 119, Texas Rules of
276276 Civil Procedure, that waives notice to the party of the final
277277 hearing or waives the party's appearance at the final hearing;
278278 (E) an order specifying that the court clerk
279279 shall issue:
280280 (i) letters testamentary or of
281281 administration; or
282282 (ii) letters of guardianship; or
283283 (F) an order for inpatient or outpatient mental
284284 health, mental retardation, or chemical dependency services; and
285285 (16) sign a final order that includes a waiver of the
286286 right to a de novo hearing in accordance with Section 54.618.
287287 (b) An associate judge may, in the interest of justice,
288288 refer a case back to the referring court regardless of whether a
289289 timely objection to the associate judge hearing the trial on the
290290 merits or presiding at a jury trial has been made by any party.
291291 (c) An order described by Subsection (a)(15) that is
292292 rendered and signed by an associate judge constitutes an order of
293293 the referring court. The judge of the referring court shall sign
294294 the order not later than the 30th day after the date the associate
295295 judge signs the order.
296296 (d) An answer filed by or on behalf of a party who previously
297297 filed a waiver described in Subsection (a)(15)(D) revokes that
298298 waiver.
299299 SECTION 6. Section 54.612, Government Code, is amended by
300300 amending Subsections (a), (b), and (c) and adding Subsection (e) to
301301 read as follows:
302302 (a) A court reporter may be provided [is not required]
303303 during a hearing held by an associate judge appointed under this
304304 subchapter unless required by other law. A court reporter is
305305 required to be provided when the associate judge presides over a
306306 jury trial.
307307 (b) A party, the associate judge, or the referring court may
308308 provide for a reporter during the hearing, if one is not otherwise
309309 provided.
310310 (c) Except as provided by Subsection (a), in the absence of
311311 a court reporter or on agreement of the parties, the [The] record
312312 [of a hearing before an associate judge] may be preserved by any
313313 means approved by the referring court.
314314 (e) On a request for a de novo hearing, the referring court
315315 may consider testimony or other evidence in the record, if the
316316 record is taken by a court reporter, in addition to witnesses or
317317 other matters presented under Section 54.618.
318318 SECTION 7. Section 54.614, Government Code, is amended to
319319 read as follows:
320320 Sec. 54.614. REPORT. (a) The associate judge's report may
321321 contain the associate judge's findings, conclusions, or
322322 recommendations. The associate judge shall prepare a written
323323 report in the form directed by the referring court, including in the
324324 form of:
325325 (1) [. The form may be] a notation on the referring
326326 court's docket sheet; or
327327 (2) a proposed order.
328328 (b) After a hearing, the associate judge shall provide the
329329 parties participating in the hearing notice of the substance of the
330330 associate judge's report, including any proposed order.
331331 (c) Notice may be given to the parties:
332332 (1) in open court, by an oral statement or a copy of
333333 the associate judge's written report; [or]
334334 (2) by certified mail, return receipt requested; or
335335 (3) by facsimile transmission.
336336 (d) There is a rebuttable presumption that notice is
337337 received [The associate judge shall certify the date of mailing of
338338 notice by certified mail. Notice is considered given] on the [third
339339 day after the] date stated on:
340340 (1) the signed return receipt, if notice was provided
341341 by certified mail; or
342342 (2) the confirmation page produced by the facsimile
343343 machine, if notice was provided by facsimile transmission [of
344344 mailing].
345345 (e) After a hearing conducted by an associate judge, the
346346 associate judge shall send the associate judge's signed and dated
347347 report, including any proposed order, and all other papers relating
348348 to the case to the referring court.
349349 SECTION 8. The heading to Section 54.615, Government Code,
350350 is amended to read as follows:
351351 Sec. 54.615. NOTICE OF RIGHT TO DE NOVO HEARING BEFORE
352352 REFERRING COURT [APPEAL].
353353 SECTION 9. Subsection (a), Section 54.615, Government Code,
354354 is amended to read as follows:
355355 (a) An associate judge shall give all parties notice of the
356356 right to a de novo hearing before [of appeal to the judge of] the
357357 referring court.
358358 SECTION 10. Section 54.616, Government Code, is amended to
359359 read as follows:
360360 Sec. 54.616. ORDER OF COURT. (a) Pending a de novo hearing
361361 before [appeal of the associate judge's report to] the referring
362362 court, a proposed order or judgment [the decisions and
363363 recommendations] of the associate judge has [judge's report have]
364364 the force and effect, and is [are] enforceable as, an order or
365365 judgment of the referring court, except for an order [orders]
366366 providing for [incarceration or for] the appointment of a receiver.
367367 (b) Except as provided by Section 54.610(c), if a request
368368 for a de novo hearing before [If an appeal to] the referring court
369369 is not timely filed or the right to a de novo hearing before [an
370370 appeal to] the referring court is waived, the proposed order or
371371 judgment [findings and recommendations] of the associate judge
372372 becomes [become] the order or judgment of the referring court at the
373373 time the judge of the referring court signs the proposed [an] order
374374 or judgment [conforming to the associate judge's report].
375375 SECTION 11. Section 54.617, Government Code, is amended to
376376 read as follows:
377377 Sec. 54.617. JUDICIAL ACTION ON ASSOCIATE JUDGE'S PROPOSED
378378 ORDER OR JUDGMENT [REPORT]. (a) Unless a party files a written
379379 request for a de novo hearing before the referring court [notice of
380380 appeal], the referring court may:
381381 (1) adopt, modify, or reject the associate judge's
382382 proposed order or judgment [report];
383383 (2) hear further evidence; or
384384 (3) recommit the matter to the associate judge for
385385 further proceedings.
386386 (b) The judge of the referring court shall sign a proposed
387387 order or judgment the court adopts as provided by Subsection (a)(1)
388388 not later than the 30th day after the date the associate judge
389389 signed the order or judgment.
390390 SECTION 12. Section 54.618, Government Code, is amended to
391391 read as follows:
392392 Sec. 54.618. DE NOVO HEARING BEFORE [APPEAL TO] REFERRING
393393 COURT. (a) A party may request a de novo hearing before the
394394 referring court [appeal an associate judge's report] by filing with
395395 the clerk of the referring court a written request [notice of
396396 appeal] not later than the seventh working [third] day after the
397397 date the party receives notice of the substance of the associate
398398 judge's report as provided by Section 54.614.
399399 (b) A request for a de novo hearing under this section must
400400 specify the issues that will be presented [An appeal] to the
401401 referring court [must be made in writing and specify the findings
402402 and conclusions of the associate judge to which the party objects.
403403 The appeal is limited to the findings and conclusions specified in
404404 the written appeal].
405405 (c) In the de novo hearing before the referring court, the
406406 [The] parties may present witnesses [on appeal to the referring
407407 court as in a hearing de novo] on the issues specified [raised] in
408408 the request for hearing [appeal]. The referring court may also
409409 consider the record from the hearing before the associate judge,
410410 including the charge to and verdict returned by a jury, if the
411411 record was taken by a court reporter.
412412 (d) Notice of a request for a de novo hearing before [an
413413 appeal to] the referring court must be given to the opposing
414414 attorney in the manner provided by Rule 21a, Texas Rules of Civil
415415 Procedure.
416416 (e) If a request for a de novo hearing before [an appeal to]
417417 the referring court is filed by a party, any other party may file a
418418 request for a de novo hearing before [an appeal to] the referring
419419 court not later than the seventh day after the date of filing of the
420420 initial request [appeal].
421421 (f) The referring court, after notice to the parties, shall
422422 hold a de novo hearing [on all appeals] not later than the 30th day
423423 after the date on which the initial request for a de novo hearing
424424 [appeal] was filed with the clerk of the referring court, unless all
425425 of the parties agree to a later date.
426426 (g) Before the start of a hearing conducted by an associate
427427 judge, the parties may waive the right of a de novo hearing before
428428 [appeal to] the referring court. The waiver may be in writing or on
429429 the record.
430430 (h) The denial of relief to a party after a de novo hearing
431431 under this section or a party's waiver of the right to a de novo
432432 hearing before the referring court does not affect the right of a
433433 party to file a motion for new trial, motion for judgment
434434 notwithstanding the verdict, or other post-trial motion.
435435 (i) A party may not demand a second jury in a de novo hearing
436436 before the referring court if the associate judge's proposed order
437437 or judgment resulted from a jury trial.
438438 SECTION 13. Section 54.619, Government Code, is amended to
439439 read as follows:
440440 Sec. 54.619. APPELLATE REVIEW. (a) A party's failure to
441441 request a de novo hearing before [Failure to appeal to] the
442442 referring court or a party's waiver of the right to request a de
443443 novo hearing before[, by waiver or otherwise, the approval by] the
444444 referring court [of an associate judge's report] does not deprive
445445 the [a] party of the right to appeal to or request other relief from
446446 a court of appeals or the supreme court.
447447 (b) Except as provided by Subsection (c), the [The] date the
448448 judge of a referring court signs an order or judgment is the
449449 controlling date for the purposes of appeal to or request for other
450450 relief from a court of appeals or the supreme court.
451451 (c) The date an order described by Section 54.610(a)(15) is
452452 signed by an associate judge is the controlling date for the purpose
453453 of an appeal to, or a request for other relief relating to the order
454454 from, a court of appeals or the supreme court.
455455 SECTION 14. The changes in law made by this Act to Chapter
456456 54, Government Code, apply to a matter referred to a statutory
457457 probate court associate judge on or after the effective date of this
458458 Act. A matter referred to a statutory probate court associate judge
459459 before the effective date of this Act is governed by the law in
460460 effect on the date the matter was referred to the associate judge,
461461 and the former law is continued in effect for that purpose.
462462 SECTION 15. This Act takes effect September 1, 2009.
463463 ______________________________ ______________________________
464464 President of the Senate Speaker of the House
465465 I hereby certify that S.B. No. 683 passed the Senate on
466466 March 19, 2009, by the following vote: Yeas 31, Nays 0; and that
467467 the Senate concurred in House amendments on May 30, 2009, by the
468468 following vote: Yeas 31, Nays 0.
469469 ______________________________
470470 Secretary of the Senate
471471 I hereby certify that S.B. No. 683 passed the House, with
472472 amendments, on May 27, 2009, by the following vote: Yeas 148,
473473 Nays 0, one present not voting.
474474 ______________________________
475475 Chief Clerk of the House
476476 Approved:
477477 ______________________________
478478 Date
479479 ______________________________
480480 Governor