By: Naishtat (Senate Sponsor - Watson) H.B. No. 3856
(In the Senate - Received from the House May 13, 2011;
May 13, 2011, read first time and referred to Committee on
Jurisprudence; May 21, 2011, reported favorably by the following
vote: Yeas 5, Nays 0; May 21, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the proceedings that may be referred to and the powers
of a criminal law magistrate in Travis County.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 54.976, Government Code, is amended by
amending Subsections (a) and (b) and adding Subsection (d) to read
as follows:
(a) A judge may refer to a magistrate any criminal case or
matter relating to a criminal case for proceedings involving:
(1) a negotiated plea of guilty or no contest and
sentencing;
(2) a pretrial motion;
(3) an examining trial;
(4) a [postconviction] writ of habeas corpus;
(5) a bond forfeiture suit;
(6) issuance of search warrants;
(7) setting, setting conditions, modifying, revoking,
and surrendering of bonds, including surety bonds;
(8) arraignment of defendants;
(9) a motion to increase or decrease a bond;
(10) a motion to revoke community supervision or to
proceed to an adjudication;
(11) an issue of competency or a civil commitment
under Chapter 46, 46B, or 46C, Code of Criminal Procedure, with or
without a jury; [and]
(12) a motion to modify community supervision;
(13) specialty court proceedings, including drug
court proceedings, veteran's court proceedings, and driving while
intoxicated court proceedings;
(14) an expunction or a petition for nondisclosure;
(15) an occupational driver's license;
(16) a waiver of extradition;
(17) the issuance of subpoenas and orders requiring
the production of medical records, including records relating to
mental health or substance abuse treatment; and
(18) any other matter the judge considers necessary
and proper.
(b) A magistrate may select a jury. A magistrate may not
preside over a contested criminal trial on the merits, regardless
of whether the trial is before a jury.
(d) A judge may refer to a magistrate proceedings involving
a grand jury, including issuance of grand jury subpoenas, receipt
of grand jury reports on behalf of a district judge, the granting of
a grand jury request to recess, motions to compel testimony, and
discharge of a grand jury at the end of a term. A magistrate may not
impanel a grand jury.
SECTION 2. Section 54.977, Government Code, is amended by
amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) To refer one or more cases or matters to a magistrate, a
judge must issue an order of referral specifying the magistrate's
duties.
(c) A judge may issue a general order of referral
authorizing the magistrate to act on certain types of matters
without requiring an order for each referral. Items that may be in
the general order of referral include:
(1) waivers of extradition;
(2) search warrants;
(3) bench warrants;
(4) grand jury subpoenas;
(5) subpoenas and orders requiring the production of
medical records, including records relating to mental health and
substance abuse treatment; and
(6) records and other matters relating to the grand
jury.
SECTION 3. Section 54.978, Government Code, is amended to
read as follows:
Sec. 54.978. POWERS. (a) Except as limited by an order of
referral, a magistrate to whom a case or matter related to a
criminal case is referred may:
(1) conduct hearings;
(2) hear evidence;
(3) compel production of relevant evidence;
(4) rule on admissibility of evidence;
(5) issue summons for the appearance of witnesses;
(6) examine witnesses;
(7) swear witnesses for hearings;
(8) make findings of fact on evidence;
(9) formulate conclusions of law;
(10) rule on pretrial motions;
(11) recommend the rulings, orders, or judgment to be
made in a case;
(12) regulate proceedings in a hearing;
(13) in any case referred under Section 54.976(a)(1):
(A) accept a negotiated plea of guilty;
(B) enter a finding of guilt and impose or
suspend sentence; or
(C) defer adjudication of guilty; [and]
(14) notwithstanding Article 18.01(c), Code of
Criminal Procedure, issue a search warrant under Article 18.02(10),
Code of Criminal Procedure;
(15) notwithstanding Article 18.01(h), Code of
Criminal Procedure, issue a search warrant under Article 18.02(12),
Code of Criminal Procedure; and
(16) do any act and take any measure necessary and
proper for the efficient performance of the duties required by the
order of referral.
(b) A magistrate may not enter a ruling on any issue of law
or fact if that ruling could result in dismissal or require
dismissal of a pending criminal prosecution, but the magistrate may
make findings, conclusions, and recommendations on those issues. A
magistrate may sign a motion to dismiss submitted by an attorney
representing the state on cases referred to the magistrate or on
dockets called by the magistrate, and may consider unadjudicated
cases at sentencing under Section 12.45, Penal Code.
(c) A magistrate has all of the powers of a magistrate under
the laws of this state and may administer an oath for any purpose.
(d) A magistrate does not have authority under Subsection
(a)(14) to issue a subsequent search warrant under Article
18.02(10), Code of Criminal Procedure.
(e) In this subsection, "pen register," "ESN reader," "trap
and trace device," and "mobile tracking device" have the meanings
assigned by Section 18.21, Code of Criminal Procedure. A
magistrate may:
(1) notwithstanding Section 2(a), Article 18.21, Code
of Criminal Procedure, issue an order under Section 2, Article
18.21, Code of Criminal Procedure, for the installation and use of:
(A) a pen register;
(B) an ESN reader;
(C) a trap and trace device; or
(D) equipment that combines the function of a pen
register and a trap and trace device;
(2) issue an order to obtain access to stored
communications under Section 5, Article 18.21, Code of Criminal
Procedure; and
(3) notwithstanding Section 14(a), Article 18.21,
Code of Criminal Procedure, issue an order for the installation and
use of a mobile tracking device under Section 14, Article 18.21,
Code of Criminal Procedure.
SECTION 4. The changes in law made by this Act apply to a
cause of action referred to a magistrate on or after the effective
date of this Act. A cause of action referred to a magistrate before
the effective date of this Act is governed by the law in effect
immediately before that date, and that law is continued in effect
for that purpose.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2011.
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