By: Gallego H.B. No. 3475
A BILL TO BE ENTITLED
AN ACT
relating to the recusal and disqualification of municipal judges
pursuant to the Code of Criminal Procedure.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 45, Code of Criminal Procedure,
Subchapter D, is amended by adding Article 45.204 to read as
follows:
Art. 45.204. Recusal or Disqualification of Municipal
Judges
(a) For purposes of this Section:
(1) "County judge" refers to:
(A) a local administrative statutory county
court judge under Section 74.0911, Government Code, or
(B) if there is no statutory county court judge,
a judge of a county court or other proper court that hears appeals
from a municipal court, including a municipal court of record.
(2) "Presiding judge" refers to the presiding judge of
a municipal court, including a municipal court of record.
(b) A party in a hearing or trial in a municipal court may
file with the clerk of the court a motion stating grounds for the
recusal or disqualification of the judge. The grounds may include
any disability of the judge to preside over the case.
(c) A motion for the recusal or disqualification of a
municipal judge must:
(1) be filed at least 10 days before the date of the
hearing or trial, except as provided by Subsection (d);
(2) be verified; and
(3) state with particularity the alleged grounds for
recusal or disqualification of the judge based on:
(A) personal knowledge that is supported by
admissible evidence; or
(B) specifically stated grounds for belief of the
allegations.
(d) A motion for recusal or disqualification may be filed at
the earliest practicable time before the beginning of the trial or
other hearing if a judge is assigned to a case 10 or fewer days
before the date set for a trial or hearing.
(e) A party filing a motion for recusal or disqualification
shall serve on all other parties or their counsel:
(1) copies of the motion; and
(2) notice that the movant expects the motion to be
presented to the judge three days after the filing of the motion
unless the judge orders otherwise.
(f) A party may file with the clerk of the court a statement
opposing or concurring with a motion for recusal or
disqualification at any time before the motion is heard.
(g) Before further proceedings in a case in which a motion
for the recusal or disqualification of a municipal judge has been
filed, the judge shall:
(1) recuse or disqualify himself or herself; or
(2) request the assignment of a judge to hear the
motion by forwarding the motion and opposing and concurring
statements to the appropriate judge as provided by Subsection (i).
(h) A municipal judge who recuses or disqualifies himself or
herself:
(1) shall enter an order of recusal or
disqualification and:
(A) if the municipal judge is not the presiding
judge, request that the presiding judge assign another judge of the
municipal court to hear the case; or
(B) if the judge is the presiding judge of the
court, request the county judge to assign another judge of a
municipal court located in the county to hear the case; or
(C) if the judge is located in a municipality
with only one municipal judge, request the county judge to assign
another judge of a municipal court located in the county to hear the
case; and
(2) the judge:
(A) in the case of a recusal, may not take other
action in the case except for good cause stated in the order in
which the action is taken; or
(B) in the case of a disqualification, may not
take other action in the case.
(i) A municipal judge who does not recuse or disqualify
himself or herself:
(1) shall forward in original form or certified copy,
an order of referral, the motion, and all opposing and concurring
statements to:
(A) the presiding judge, if the municipal judge
is not the presiding judge; or
(B) the county judge, if the municipal judge is
the presiding judge or the only judge of the municipality; and
(2) may not take other action in the case during the
time after the filing of the motion for recusal or disqualification
and before a hearing on the motion, except for good cause stated in
the order in which the action is taken.
(j) A presiding judge or county judge who receives a request
under Subsection (i) shall immediately set a hearing before himself
or herself or some other municipal judge designated by the
presiding judge or county judge and, shall cause notice of such
hearing to be given to all parties or their counsel, and shall make
such other orders including orders on interim or ancillary relief
in the pending cause as justice may require.
(k) A judge who hears a motion for recusal or
disqualification under Subsection (j) may also hear any amended or
supplemented motion for recusal or disqualification filed in the
case.
(l) If a motion for recusal or disqualification is granted
after a hearing conducted as provided by Subsection (j), the judge
who heard the motion shall enter an order of recusal or
disqualification, and:
(1) if the judge who heard the motion is a presiding
judge, the presiding judge may:
(A) hear the case;
(B) assign another judge of the municipality to
hear the case; or
(C) request a county judge to assign another
judge to hear the case.
(2) if the judge who heard the motion is not the
presiding judge, request that a county judge assign another judge
of the municipality to hear the case.
(m) If the judge subject to recusal or disqualification is
located in a municipality with only one municipal judge, the county
judge shall assign a judge of another municipal court in the county
to hear the case.
(n) After a municipal court of record has rendered a final
judgement in a case, a party may appeal an order that denies a
motion for recusal or disqualification as an abuse of the court's
discretion. A party may not appeal an order that grants a motion
for recusal or disqualification.
(o) If a party files a motion to recuse under this rule and
it is determined by the presiding judge, county judge, or the judge
designated by a presiding judge or county judge at the hearing and
on motion of the opposite party, that the motion to recuse is
brought solely for the purpose of delay and without sufficient
cause, the judge hearing the motion may in the interest of justice
find the party filing the motion in contempt, under Section
21.002(c), Government Code.
(p) If the county judge is unable to assign a judge to hear a
motion to recuse or disqualify or to hear the case when the judge is
recused or disqualified, because there are no other municipal court
judges in the county or all of the municipal court judges have been
recused or disqualified or are otherwise unavailable to hear the
case, the county judge may assign a municipal court judge from a
municipality in an adjacent county.
(q) A judge assigned pursuant to this Section shall receive
compensation and travel expenses as provided by law for regular
judges in similar cases.
SECTION 2. Chapter 29, Government Code, is amended by
adding Sec. 29.013 to read as follows:
Sec. 29.013 DUTIES OF CITY SECRETARY. The secretary of the
municipality in a municipality with a municipal court, including a
municipal court of record, shall notify the Texas Judicial Council
of the name of each person who is elected or appointed as mayor,
municipal court judge, or clerk of a municipal court. The secretary
shall notify the judicial council within 30 days after the date of
the person's election, appointment, or vacancy from office.
Section 3. Section 22.073, Local Government Code, is
amended to read as follows:
Sec. 22.073. POWERS AND DUTIES OF SECRETARY. (a) The
secretary of the municipality shall attend each meeting of the
governing body of the municipality and shall keep, in a record
provided for that purpose, accurate minutes of the governing body's
proceedings.
(b) The secretary shall:
(1) engross and enroll all laws, resolutions, and
ordinances of the governing body;
(2) keep the corporate seal;
(3) take charge of, arrange, and maintain the records
of the governing body;
(4) countersign all commissions issued to municipal
officers and all licenses issued by the mayor, and keep a record of
those commissions and licenses; and
(5) prepare all notices required under any regulation
or ordinance of the municipality.
(c) The secretary shall notify the Texas Judicial
Council of the name of each person who is elected or appointed as
mayor, municipal court judge, or clerk of a municipal court of the
municipality. The secretary shall notify the judicial council
within 30 days after the date of the person's election or
appointment.
(d) (c) The secretary shall draw all the warrants on the
treasurer, countersign the warrants, and keep, in a record provided
for that purpose, an accurate account of the warrants.
(e) (d) The secretary serves as the general accountant of
the municipality and shall keep regular accounts of the municipal
receipts and disbursements. The secretary shall keep each cause of
receipt and disbursement separately and under proper headings. The
secretary shall also keep separate accounts with each person,
including each officer, who has monetary transactions with the
municipality. The secretary shall credit accounts allowed by
proper authority and shall specify the particular transaction to
which each entry applies. The secretary shall keep records of the
accounts and other information covered by this subsection.
(f) (e) The secretary shall keep a register of bonds and
bills issued by the municipality and all evidence of debt due and
payable to the municipality, noting the relevant particulars and
facts as they occur.
(g) (f) The secretary shall carefully keep all contracts
made by the governing body.
(h) (g) The secretary shall perform all other duties
required by law, ordinance, resolution, or order of the governing
body.
SECTION 4. Section 29.012 of the Government Code is
repealed.
Section 5. This Act takes effect September 1, 2011.