85R2412 SRS-D
By: Thompson of Harris H.B. No. 2102
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the state bar.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 81.003, Government Code, is amended to
read as follows:
Sec. 81.003. SUNSET PROVISION. The state bar is subject to
Chapter 325 (Texas Sunset Act). Unless continued in existence as
provided by that chapter, this chapter expires September 1, 2029
[2017].
SECTION 2. Section 81.0201, Government Code, is amended by
amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) The training program must provide the person with
information regarding:
(1) the law governing [legislation that created the]
state bar operations [and the board];
(2) the programs operated by the state bar;
(3) the role and functions of the state bar;
(4) the rules of the state bar, with an emphasis on the
rules that relate to disciplinary and investigatory authority;
(4-a) the scope of and limitations on the rulemaking
authority of the state bar;
(5) the current budget for the state bar;
(6) the results of the most recent formal audit of the
state bar;
(7) the requirements of:
(A) laws relating to [the] open meetings [law],
[Chapter 551;
[(B) the] public information [law],
administrative procedure, and the disclosure of conflicts of
interest [Chapter 552]; and
(B) [(C)] other laws applicable to members of a
state policymaking body in performing their duties [relating to
public officials, including conflict-of-interest laws]; and
(8) any applicable ethics policies adopted by the
state bar or the Texas Ethics Commission.
(c) The executive director shall create a training manual
that includes the information required by Subsection (b). The
executive director shall distribute a copy of the training manual
annually to each member of the board of directors. On receipt of
the training manual, each member of the board shall sign and submit
to the executive director a statement acknowledging receipt of the
training manual.
SECTION 3. Section 81.022, Government Code, is amended by
adding Subsection (a-2) to read as follows:
(a-2) Any change in a membership fee or other fee for
members of the state bar must be clearly described and included in
the supreme court's proposed budget and considered by the supreme
court in its deliberations on the budget. The change may not be
implemented unless approved by the court as part of its budget.
SECTION 4. Sections 81.024(a) and (b), Government Code, are
amended to read as follows:
(a) The supreme court shall promulgate the rules governing
the state bar. [The rules may be amended as provided by this
section.]
(b) The supreme court may:
(1) [, either] as it considers necessary, [pursuant to
a resolution of the board of directors of the state bar, or pursuant
to a petition signed by at least 10 percent of the registered
members of the state bar,] prepare, propose, and adopt rules or
amendments to rules for the operation, maintenance, and conduct of
the state bar; and
(2) in accordance with Subchapter E-1, adopt rules for
the discipline of state bar [its] members.
SECTION 5. Subchapter B, Chapter 81, Government Code, is
amended by adding Section 81.037 to read as follows:
Sec. 81.037. CRIMINAL HISTORY RECORD INFORMATION. (a) The
state bar shall require that each member of the state bar submit a
complete and legible set of fingerprints, on a form prescribed by
the state bar, to the state bar or to the Department of Public
Safety for the purpose of obtaining criminal history record
information from the department and the Federal Bureau of
Investigation. The state bar may obtain the information from the
Board of Law Examiners for a state bar member who has been issued an
initial license.
(b) A state bar member is not required to submit
fingerprints under this section if the member has previously
submitted fingerprints to:
(1) the Board of Law Examiners and the Board of Law
Examiners made the information accessible to the state bar; or
(2) the state bar or the Department of Public Safety
for a previous license renewal under this chapter.
(c) The board of directors shall conduct a criminal history
record check of each member of the state bar using information:
(1) provided by the state bar member or the Board of
Law Examiners under this section; or
(2) made available to the state bar by the Department
of Public Safety, the Federal Bureau of Investigation, and any
other criminal justice agency under Chapter 411, Government Code.
(d) The state bar may:
(1) enter into an agreement with the Department of
Public Safety to administer a criminal history record check
required under this section; and
(2) authorize the Department of Public Safety to
collect from each state bar member the costs incurred by the
department in conducting the criminal history record check.
(e) The state bar may administratively suspend or refuse to
renew the license of a member of the state bar who fails to assist
the state bar in obtaining criminal history record information
under this section.
SECTION 6. Section 81.054(a), Government Code, is amended
to read as follows:
(a) The supreme court shall set membership fees and other
fees for members of the state bar during the court's annual budget
process under Section 81.022. The fees, except as provided by
Subsection (j) and those set for associate members, must be set in
accordance with this section [and Section 81.024].
SECTION 7. Section 81.072(e), Government Code, is amended
to read as follows:
(e) The state bar shall establish a voluntary mediation and
dispute resolution procedure to:
(1) attempt to resolve each minor grievance referred
to the voluntary mediation and dispute resolution procedure by the
chief disciplinary counsel [allegation of attorney misconduct that
is:
[(A) classified as an inquiry under Section
81.073(a)(2)(A) because it does not constitute an offense
cognizable under the Texas Disciplinary Rules of Professional
Conduct; or
[(B) classified as a complaint and subsequently
dismissed]; and
(2) facilitate coordination with other programs
administered by the state bar to address and attempt to resolve
inquiries and complaints referred to the voluntary mediation and
dispute resolution procedure.
SECTION 8. Subchapter E, Chapter 81, Government Code, is
amended by adding Sections 81.080, 81.081, 81.082, 81.083, 81.084,
81.085, and 81.086 to read as follows:
Sec. 81.080. ISSUANCE OF SUBPOENA; OBJECTION. (a) On
approval of the presiding officer of the appropriate district
grievance committee, the chief disciplinary counsel may, during an
investigation of a grievance, issue a subpoena that relates
directly to a specific allegation of attorney misconduct.
(b) The chief disciplinary counsel shall provide a process
for a respondent to object to a subpoena issued under this section.
Sec. 81.081. ATTORNEY SELF-REPORTING. The chief
disciplinary counsel shall develop guidelines and a procedure for
an attorney to self-report:
(1) any criminal offense committed by the attorney;
and
(2) any disciplinary action taken by another state's
bar against the attorney.
Sec. 81.082. PROCESS TO IDENTIFY COMPLAINTS SUITABLE FOR
SETTLEMENT OR INVESTIGATORY HEARING. (a) The chief disciplinary
counsel shall develop a process to identify a complaint that is
appropriate for a settlement attempt or an investigatory hearing
before a trial is requested or the complaint is placed on a hearing
docket.
(b) The chief disciplinary counsel may authorize a
settlement at any time during the disciplinary process.
Sec. 81.083. SANCTION GUIDELINES. (a) The chief
disciplinary counsel shall propose and the supreme court shall
adopt by rule sanction guidelines to:
(1) associate a specific rule violation or ethical
misconduct with a range of appropriate sanctions;
(2) provide aggravating and mitigating factors that
justify deviating from the established sanctions; and
(3) provide consistency between grievances heard by a
district grievance committee and grievances heard by a district
court.
(b) The chief disciplinary counsel shall ensure that
interested parties are provided an opportunity to comment on the
proposed sanction guidelines.
(c) The sanction guidelines adopted under this section do
not limit the authority of a district grievance committee or of a
district judge to make a finding or issue a decision.
Sec. 81.084. GRIEVANCE TRACKING SYSTEM. (a) The chief
disciplinary counsel shall create and maintain a grievance tracking
system for grievances filed and disciplinary decisions issued under
this subchapter.
(b) The grievance tracking system must:
(1) associate each rule violation or instance of
ethical misconduct with the sanction imposed or final action taken
for the violation or misconduct in a diversionary procedure adopted
under state bar rules;
(2) include any aggravating or mitigating factor used
in a sanction recommendation or imposition;
(3) address whether a sanction decision aligns with
the sanction guidelines adopted under Section 81.083;
(4) specify the district grievance committee or
district judge that imposed the sanction to evaluate sanction
patterns within the disciplinary districts and facilitate training
for district grievance committee members; and
(5) include sufficient information to evaluate and
track disciplinary trends over time.
(c) The chief disciplinary counsel shall:
(1) periodically evaluate and report information
gathered in the grievance tracking system to the commission and
district grievance committee members; and
(2) post the information reported under Subdivision
(1) on the state bar's Internet website.
Sec. 81.085. REGULAR SEARCH OF NATIONAL LAWYER REGULATORY
DATA BANK. The chief disciplinary counsel shall establish a
process to regularly search the National Lawyer Regulatory Data
Bank maintained by the American Bar Association to identify a
member of the state bar who is disciplined in another state.
Sec. 81.086. TELECONFERENCE. The chief disciplinary
counsel may hold investigatory and disciplinary hearings by
teleconference.
SECTION 9. Chapter 81, Government Code, is amended by
adding Subchapters E-1 and E-2 to read as follows:
SUBCHAPTER E-1. COMMITTEE ON DISCIPLINARY RULES AND REFERENDA;
DISCIPLINARY RULE PROPOSAL PROCESS
Sec. 81.0871. DEFINITION. In this subchapter, "committee"
means the Committee on Disciplinary Rules and Referenda.
Sec. 81.0872. ESTABLISHMENT OF COMMITTEE. (a) The
committee consists of nine members, including:
(1) four attorneys appointed by the president of the
state bar;
(2) two nonattorney public members appointed by the
president of the state bar;
(3) two attorneys appointed by the supreme court; and
(4) one nonattorney public member appointed by the
supreme court.
(b) The president of the state bar shall designate an
attorney member of the committee to serve as the presiding officer
of the committee for a term of one year.
(c) Committee members serve staggered three-year terms,
with one-third of the members' terms expiring each year.
Sec. 81.0873. COMMITTEE DUTIES. The committee shall:
(1) regularly review the Texas Disciplinary Rules of
Professional Conduct and the Texas Rules of Disciplinary Procedure;
(2) at least annually issue to the supreme court and
the board of directors a report on the adequacy of the rules
reviewed under Subdivision (1); and
(3) oversee the initial process for proposing a
disciplinary rule under Section 81.0875.
Sec. 81.0874. STAFF ATTORNEY. The state bar may hire a
staff attorney to assist the committee.
Sec. 81.0875. INITIATION OF RULE PROPOSAL PROCESS. (a) The
committee may initiate the process for proposing a disciplinary
rule for the state bar as the committee considers necessary or in
conjunction with the review of the Texas Disciplinary Rules of
Professional Conduct and the Texas Rules of Disciplinary Procedure
under Section 81.0873(1).
(b) Not later than the 60th day after the date the committee
receives a request to initiate the process for proposing a
disciplinary rule, the committee shall:
(1) initiate the process; or
(2) issue a written decision declining to initiate the
process and the reasons for declining.
(c) A request to initiate the process for proposing a
disciplinary rule under Subsection (b) may be made by:
(1) a resolution of the board of directors;
(2) a request of the supreme court;
(3) a request of the commission;
(4) a petition signed by at least 10 percent of the
registered members of the state bar;
(5) a concurrent resolution of the legislature; or
(6) a petition signed by at least 20,000 people.
Sec. 81.0876. RULE PROPOSAL. (a) On initiation of the
process for proposing a disciplinary rule, the committee shall:
(1) study the issue to be addressed by the proposed
rule;
(2) hold a public hearing on the issue; and
(3) draft the proposed rule, which may not address
more than one subject.
(b) The committee shall publish the proposed disciplinary
rule in:
(1) the Texas Register; and
(2) the Texas Bar Journal.
(c) The committee shall give interested parties at least 30
days from the date the proposed disciplinary rule is published as
required under Subsection (b) to submit comments on the rule to the
committee. The committee shall make all reasonable efforts to
solicit comments from:
(1) different geographic regions in this state;
(2) nonattorney members of the public; and
(3) members of the state bar.
(d) The committee shall hold a public hearing on the
proposed disciplinary rule if, during the comment period described
by Subsection (c), the hearing is requested by:
(1) at least 25 people;
(2) a state agency or political subdivision of this
state; or
(3) an association with at least 25 members.
(e) On conclusion of the comment period described by
Subsection (c), the committee may amend the proposed disciplinary
rule in response to the comments.
(f) The committee shall vote on whether to recommend a
proposed disciplinary rule to the board of directors not later than
the 60th day after the final day of the comment period described by
Subsection (c). The committee may not recommend a proposed
disciplinary rule unless at least five members of the committee
favor recommendation.
(g) The committee shall submit a proposed disciplinary rule
that is recommended by the committee to the board of directors for
review and consideration.
(h) A proposed disciplinary rule is withdrawn six months
after the date the rule proposal process is initiated under Section
81.0875(b)(1) if the committee does not recommend the rule to the
board of directors before expiration of that time.
Sec. 81.0877. APPROVAL OF PROPOSED DISCIPLINARY RULE BY
BOARD OF DIRECTORS. (a) The board of directors shall vote on each
proposed disciplinary rule recommended by the committee not later
than the 180th day after the date the rule is received from the
committee. The board shall vote for or against the rule or return
the rule to the committee for additional consideration.
(b) If a proposed disciplinary rule is approved by a
majority of the directors, the board of directors shall petition
the supreme court to order a referendum as provided by Section
81.0878 on the rule by the members of the state bar.
Sec. 81.0878. REFERENDUM VOTE BY STATE BAR MEMBERS. (a) On
receipt of a petition filed by the board of directors under Section
81.0877(b), the supreme court shall:
(1) distribute a copy of the rule in ballot form to
each member of the state bar and order a vote on the rule; and
(2) publish the rule in:
(A) the Texas Register; and
(B) the Texas Bar Journal.
(b) The supreme court shall give state bar members:
(1) at least 30 days to consider a proposed
disciplinary rule before voting begins; and
(2) 30 days to vote on the proposed disciplinary rule
following the period for considering the proposed rule under
Subdivision (1).
(c) The state bar shall provide proponents and opponents of
a proposed disciplinary rule an equal opportunity to present their
views at any bar sponsored forum at which the rule referendum is
discussed.
(d) One or more proposed disciplinary rules may appear on a
single referendum ballot. State bar members shall vote for or
against each rule. If a majority of the members who vote on the
proposed rule vote in favor of the rule, the rule is approved by the
members of the state bar.
Sec. 81.0879. SUPREME COURT APPROVAL OR REJECTION. The
supreme court by majority vote may approve or reject a proposed
disciplinary rule in its entirety, but may not approve or reject
only part of the rule. If the supreme court does not vote on the
rule on or before the 60th day after the date the rule is approved by
bar members under Section 81.0878, the rule is considered approved
by the supreme court.
Sec. 81.08791. RULE DELIBERATIONS. (a) The committee, the
board of directors, or the supreme court shall provide notice of any
deliberation on a proposed disciplinary rule, and the deliberation
must be open to the public.
(b) The board of directors and the supreme court shall
record and make public each vote for or against a proposed
disciplinary rule.
Sec. 81.08792. PROPOSED DISCIPLINARY RULE APPROVAL
REQUIRED BEFORE ADOPTION. A proposed disciplinary rule may not be
adopted by the supreme court unless the rule is approved by:
(1) the committee;
(2) the board of directors;
(3) the members of the state bar; and
(4) the supreme court.
Sec. 81.08793. USE OF TECHNOLOGY. The supreme court, the
committee, and the state bar shall use technological solutions
throughout the disciplinary rule proposal process to promote:
(1) financial efficiency; and
(2) comments from interested persons.
SUBCHAPTER E-2. OMBUDSMAN FOR ATTORNEY DISCIPLINE SYSTEM
Sec. 81.0881. DEFINITIONS. In this subchapter:
(1) "Ombudsman" means the ombudsman for the attorney
discipline system of the state bar.
(2) "System" means the attorney discipline system of
the state bar.
Sec. 81.0882. OMBUDSMAN FOR ATTORNEY DISCIPLINE SYSTEM.
(a) The state bar shall fund one full-time equivalent position of
ombudsman for the attorney discipline system.
(b) The ombudsman is selected by the members of the supreme
court and is independent of the state bar, the board of directors,
the commission, and the chief disciplinary counsel.
(c) The ombudsman shall report directly to the supreme
court.
Sec. 81.0883. POWERS AND DUTIES OF OMBUDSMAN. (a) The
ombudsman shall:
(1) review grievances to determine whether the state
bar followed the proper grievance procedures;
(2) receive complaints about the system;
(3) receive and investigate complaints on violations
of the system's procedural rules;
(4) answer questions from the public on the system's
operation, accessing the system, and the availability of other
state bar programs;
(5) assist members of the public wishing to submit a
lawyer grievance by explaining the information required and the
methods for submitting the information; and
(6) at least annually, make recommendations to the
board of directors and the supreme court for improvements to the
system, including ways to improve access to the system and changes
to the grievance form.
(b) The ombudsman may not:
(1) draft a complaint for a member of the public;
(2) act as an advocate for a member of the public; or
(3) reverse or modify a finding or judgment in any
disciplinary proceeding.
Sec. 81.0884. ACCESS TO INFORMATION. The chief
disciplinary counsel, a district grievance committee, the board of
directors, the commission, and state bar members shall share with
the ombudsman requested information that is necessary to:
(1) determine whether the state bar followed
procedural rules related to a particular grievance; or
(2) evaluate the system's efficacy and adequacy.
Sec. 81.0885. CONFIDENTIAL INFORMATION; PRIVILEGED
COMMUNICATIONS. (a) All types of information, proceedings,
hearing transcripts, and statements presented to the ombudsman are
confidential and may not be disclosed to any person other than the
chief disciplinary counsel unless disclosure is ordered by a court.
(b) The ombudsman may not access privileged communications
and information shared between the chief disciplinary counsel and
the commission.
SECTION 10. Section 81.115(b), Government Code, is amended
to read as follows:
(b) A profile must contain the following information on each
attorney:
(1) the name of each law school attended and the date
the attorney graduated;
(2) the date the attorney became licensed to practice
law in this state;
(3) any specialty certification recognized by the
state bar and held by the attorney;
(4) the attorney's primary practice location;
(5) any public disciplinary sanctions issued by the
state bar against the attorney, including a link on the attorney's
online profile to the full text of the disciplinary judgment
entered by a district grievance committee or district judge [during
at least the 10-year period preceding the date of the profile]; and
(6) any public disciplinary sanctions issued by an
entity in another state responsible for attorney discipline in that
state against the attorney [during at least the 10-year period
preceding the date of the profile].
SECTION 11. Section 411.100, Government Code, is amended to
read as follows:
Sec. 411.100. ACCESS TO CRIMINAL HISTORY RECORD
INFORMATION: BOARD OF LAW EXAMINERS AND STATE BAR OF TEXAS. (a)
The Board of Law Examiners is entitled to obtain from the department
criminal history record information maintained by the department
that relates to a person who is an applicant to take a bar
examination.
(a-1) The State Bar of Texas is entitled to obtain:
(1) from the department, criminal history record
information maintained by the department that relates to a person
who is a member of the state bar; or
(2) from the Board of Law Examiners, criminal history
record information obtained under Subsection (a).
(b) Criminal history record information obtained [by the
board] under Subsection (a) or (a-1) may not be released or
disclosed to any person, except on court order or with consent of
the applicant.
(c) Immediately following the [board's] decision of the
Board of Law Examiners on recommending an applicant, the board
shall collect and make accessible to the State Bar of Texas [seal]
all criminal history record information obtained by the board that
relates to that applicant.
SECTION 12. Section 411.1005(a), Government Code, is
amended to read as follows:
(a) The general counsel of the State Bar of Texas is
entitled to obtain from the department criminal history record
information maintained by the department that relates to a person
who is:
(1) [a person] licensed by the state bar;
(2) [and who is] the subject of or involved in an
investigation of:
(A) professional misconduct relating to a
grievance filed under the disciplinary rules of the state bar; or
(B) barratry, the unauthorized practice of law,
or falsely holding oneself out as a lawyer, in violation of Section
38.12, 38.122, or 38.123, Penal Code;
(3) [(2)] a witness in any disciplinary action or
proceeding conducted by the state bar, the Board of Disciplinary
Appeals, or any court; or
(4) [(3)] an applicant for reinstatement to practice
law.
SECTION 13. The following provisions of the Government Code
are repealed:
(1) Sections 81.024(c), (d), (e), (f), and (g); and
(2) Section 411.1005(c).
SECTION 14. (a) The State Bar of Texas shall obtain
criminal history record information on each person who is a member
of the state bar on the effective date of this Act as authorized by
Section 81.037, Government Code, as added by this Act, not later
than September 1, 2019.
(b) As soon as practicable after the effective date of this
Act, but not later than January 1, 2018, the president of the State
Bar of Texas and the Texas Supreme Court shall appoint the initial
members of the Committee on Disciplinary Rules and Referenda as
follows:
(1) the state bar president shall appoint two people
to terms expiring in 2018;
(2) the supreme court shall appoint one person to a
term expiring in 2018;
(3) the state bar president shall appoint two people
to terms expiring in 2019;
(4) the supreme court shall appoint one person to a
term expiring in 2019;
(5) the state bar president shall appoint two people
to terms expiring in 2020; and
(6) the supreme court shall appoint one person to a
term expiring in 2020.
(c) Notwithstanding Subchapter E-1, Government Code, as
added by this Act, not later than March 1, 2018, the Texas Supreme
Court shall adopt the rules necessary to:
(1) modify the voluntary mediation and dispute
resolution procedures for grievances as required by Section
81.072(e), Government Code, as amended by this Act;
(2) authorize the issuance of subpoenas under Section
81.080, Government Code, as added by this Act;
(3) implement Section 81.081, Government Code, as
added by this Act;
(4) revise the time provided for grievance
investigations, subpoena issuance, and investigatory hearings to
provide for voluntary mediation and dispute resolution under
Section 81.072(e), Government Code, as amended by this Act;
(5) establish the process to identify complaints
suitable for settlement attempts and authorize the chief
disciplinary counsel to conduct investigatory and disciplinary
hearings by teleconference under Sections 81.082 and 81.086,
Government Code, as added by this Act;
(6) establish the grievance referral program as
required by Subsection (d)(3) of this section; and
(7) establish the sanction guidelines proposed by the
chief disciplinary counsel under Section 81.083, Government Code,
as added by this Act.
(d) The chief disciplinary counsel shall:
(1) develop proposed changes to the disciplinary rules
regarding the time for conducting an investigation of a grievance
or issuing a subpoena related to an investigation or attempting a
settlement in an investigatory hearing under Section 81.082,
Government Code, as added by this Act;
(2) propose rules necessary to implement the
settlement process described by Section 81.082, Government Code, as
added by this Act; and
(3) propose rules to establish a grievance referral
program under the Texas Rules of Disciplinary Procedure, including
criteria for attorney participation and authorization for use of
the program at any point in the attorney disciplinary process.
(e) The State Bar of Texas shall assist the Texas Supreme
Court on rule modifications to the Texas Rules of Disciplinary
Procedure that are necessary to address Section 81.072(e)(1),
Government Code, as amended by this Act, including:
(1) types of grievances the chief disciplinary counsel
may refer to the voluntary mediation and dispute resolution
procedure and the criteria defining the grievance types;
(2) modifications to the time for processing
grievances to accommodate voluntary mediation and dispute
resolution and the establishment of a limit on the time for
resolution through voluntary mediation and dispute resolution or
referral to the formal grievance process for further action; and
(3) confidentiality rules to allow the chief
disciplinary counsel and client-attorney assistance program to
share appropriate information in a case referred for voluntary
mediation and dispute resolution.
(f) The State Bar of Texas shall include on attorneys'
online profiles any historical information on public disciplinary
sanctions as is practicable under Section 81.115(b), Government
Code, as amended by this Act. A public disciplinary action issued
on or after the effective date of this Act must be included on the
attorney's online profile as required by Section 81.115(b),
Government Code, as amended by this Act.
SECTION 15. (a) Except as provided by Subsection (b) of
this section, Section 81.0201, Government Code, as amended by this
Act, applies to a member of the board of directors of the State Bar
of Texas appointed before, on, or after the effective date of this
Act.
(b) A member of the board of directors of the State Bar of
Texas who, before the effective date of this Act, completed the
training program required by Section 81.0201, Government Code, as
that law existed before the effective date of this Act, is required
to complete additional training only on subjects added by this Act
to the training program as required by Section 81.0201, Government
Code, as amended by this Act. A board member described by this
subsection may not vote, deliberate, or be counted as a member in
attendance at a meeting of the board held on or after December 1,
2017, until the member completes the additional training.
SECTION 16. This Act takes effect September 1, 2017.