HBA-KMH H.J.R. 54 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.J.R. 54
By: Dunnam
Judicial Affairs
3/24/1999
Introduced



BACKGROUND AND PURPOSE

In 1988, the U.S. Congress passed the "Judicial Improvements and Access to
Justice Act," Public Law 100-702, (28 U.S.C.A.   1, et seq.),  (JIAJA),
which addressed rulemaking by individual courts as well as the general
rulemaking power of the U.S. Supreme Court and the procedures authorized in
its exercise.  Previously, the U.S. Supreme Court was empowered to
promulgate the general rules that govern practice and procedure in the
federal courts (including such compilations as the Federal Rules of Civil
Procedure) and prescribing the method of their promulgation.  The JIAJA
repealed and replaced this authority.  While the U.S. Supreme Court's
rulemaking power continues, it has been modified by providing for closer
public and congressional scrutiny.  The U.S. House of Representatives
attempted to concurrently remove the supersession clause, which provides
that all laws in conflict with such rules shall be of no further force or
effect after such rules have taken effect, as "unwise and unconstitutional"
but the U.S. Senate would not agree and JIAJA passed without that revision. 

Currently, under the Texas Constitution of 1876 (constitution), the Supreme
Court of Texas has responsibility for the efficient administration of the
judicial branch and is required to promulgate rules of administration, as
well as rules of civil procedure for all courts, not inconsistent with the
laws of the state as may be necessary for the efficient and uniform
administration of justice in the various courts.  Furthermore, the Supreme
Court of Texas and the Texas Court of Criminal Appeals have express
authority to promulgate other rules as may be prescribed by law or the
constitution that may be delegated by the legislature and subject to
limitations and procedures that may be provided by law.  There is no
proscription as to when the Supreme Court of Texas or the Texas Court of
Criminal Appeals must promulgate rules, therefore they can be, and
sometimes are, promulgated at a time which escapes review by the
legislature. 

As proposed, H.J.R. 54 requires the submission to the voters of a
constitutional amendment which would repeal the constitutional authority of
the Supreme Court of Texas to promulgate rules of civil procedure for all
courts, and delete language which provides express authority to the Supreme
Court of Texas and the Texas Court of Criminal Appeals to promulgate other
rules as may be prescribed by law or the Texas Constitution as may be
delegated by the legislature. 


RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority previously delegated to Supreme Court of Texas and the Texas
Court of Criminal Appeals is modified in SECTION 1 and 2 (Section 31(b) and
(c), Article V, Texas Constitution) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 31(c), Article V, Texas Constitution, as follows:

(c)  Grants to the legislature the authority to delegate rulemaking
authority to the Supreme Court or Court of Criminal Appeals, with respect
to any rules prescribed by law or the Texas Constitution, by delegating the
qualifying word "other." 

SECTION 2.   (b) Repealer: Section 31(b), Article V, Texas Constitution.
(The Supreme Court shall  promulgate rules of civil procedure for all
courts not inconsistent with the laws of the state as may be necessary for
the efficient and uniform administration of justice in the various courts.) 

SECTION 3.  Requires this proposed constitutional amendment to be submitted
to the voters at an election to be held November 2, 1999.  Sets forth the
required language for the ballot.