HBA-KMH H.J.R. 96 76(R) BILL ANALYSIS Office of House Bill AnalysisH.J.R. 96 By: Solomons Judicial Affairs 4/26/1999 Introduced BACKGROUND AND PURPOSE There has been a growing concern recently on how we select appellate and district court judges. A combination of elections and appointments may help to maintain a true representation of the populace in the judiciary. As proposed, H.J.R. 96 requires the submission to the voters of a constitutional amendment providing for a combination of election, appointment, and retention elections in order to fill the offices of appellate and district court judges. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Supreme Court of Texas in SECTIONS 7 and 32 and to the Secretary of State in SECTION 32 of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Sections 1, 2, 3, 6, 7, and 28, Article V, Texas Constitution, as follows: Sec. 1. Prescribes that a reference in the constitution or other law to the Court of Criminal Appeals means the Supreme Court and a reference to a judge of the Court of Criminal Appeals means a justice of the Supreme Court. Makes a conforming change. Sec. 2. (a) Requires the Supreme Court to consist of the chief justice and 14 justices, rather than 8, and requires that any eight justices constitute a quorum and requires that the concurrence of eight justices is necessary to decide a case. Authorizes the court to sit in panels of at least five justices. Requires the court to sit en banc during proceedings involving capital punishment, rehearings of cases on granted motions, and other cases as required by law. Designated from existing and new text. (b) Requires the eligibility requirements regarding citizenship and residency to apply to appointments to the court. Requires, as a part of the residency requirement, a person to be a resident of a particular Supreme Court district, if applicable. (c) Provides that of the 14 justices, seven positions are appointive and seven are elective, as provided by this section. Requires the legislature to divide the state into seven contiguous Supreme Court districts, as prescribed, that meet the population requirements of federal law with each district having one elected and one appointed justice. Requires the governor to appoint one justice from the district who holds office for a term of six years or until a successor has qualified. Requires the other seven justices to be subject to an initial election on a partisan ballot followed by retention or rejection on a nonpartisan ballot. Provides that retention and election terms are six years. (d) Requires the governor to appoint the chief justice for a term of six years or until a successor has qualified. Prohibits the appointee from being a resident of the same district in which the preceding chief justice resided, if a new chief justice is appointed. Provides that the senior justice also serves as the chief justice until a successor has qualified, on a vacancy in the office of chief justice. (e) Prohibits a chief justice or justice from serving on the court for more than 20 years, comprising an aggregate of appointment and elected tenure and regardless of the capacity served. (f) Makes conforming and nonsubstantive changes. Sec. 3. Authorizes the Supreme Court to issue prohibitions in addition to other writs. Requires the appeal of all cases in which the death penalty has been assessed to be to the Supreme Court. Requires the appeal of all other criminal cases to be to the courts of appeal as prescribed by law. Authorizes the Supreme Court, on its own motion, to review a decision of a court of appeals in a criminal case as provided by law. Provides that discretionary review by the Supreme Court is not a matter of right, but of sound judicial discretion. Makes conforming changes. Sec. 6. Provides that Supreme Court districts should be considered in dividing the state into courts of appeals districts. Requires the chief justice and justices of a court of appeals to be subject to an initial election on a partisan ballot followed by retention or rejection on a nonpartisan ballot and serve terms of six years for election and retention or until a successor has qualified. Prohibits a chief justice or justice of a court of appeals from serving on the court for more than 20 years, comprising an aggregate of appointment and elected tenure and regardless of the capacity served. Makes conforming and nonsubstantive changes. Sec. 7. Requires a judge of a judicial district to be subject to an initial election on a partisan ballot followed by retention or rejection on a nonpartisan ballot and serve terms of four years for election and retention or until a successor has qualified. Requires judges of judicial districts composed entirely of one of the state's most populous counties, as determined by law, to be elected from quadrants of the county as provided by law. Requires the legislature to draw the quadrants, as prescribed. Requires district judges for all other judicial districts to be elected from within the boundaries of the judicial district. Provides that a district judge elected from a quadrant serves the entire judicial district. Requires the Supreme Court to adopt rules to minimize conflicts of interest in the hearing of cases by a district judge elected from a quadrant, and authorizes a district judge, only on exception, to hear a case that arises in the judge's quadrant. Provides that a district judge must reside in the judicial district, and in the quadrant, if applicable. Provides that a person must have resided in the quadrant for the six months preceding election from that quadrant. Provides that a person appointed as a district judge must establish residence in the quadrant within three months after the date of qualifying for office. Prohibits a district judge from serving on the court for more than 20 years, comprising an aggregate of appointment and elected tenure and regardless of the capacity served. Provides that Section 7a(i) (Judicial Districts Board; reapportionment of judicial districts) of this article (Judicial Department) does not affect the election of a district judge from a quadrant under this section (Judicial Districts; District Judges; terms or sessions; absence, disability or disqualification of Judges). Makes conforming and nonsubstantive changes. Sec. 28. Deletes subheading (Vacancies In Offices Of Judges Of Superior Courts To Be Filled By The Governor). Requires vacancies in the offices of chief justice and justice of the Supreme Court holding appointive positions to be filled by the governor for the unexpired term. Makes conforming and nonsubstantive changes. SECTION 2. Repealer: Sections 4 (Court of Criminal Appeals; judges) and 5 (Jurisdiction of Court of Criminal Appeals; terms of court; clerk). SECTION 3. Amends Article 5, Texas Constitution, by adding Section 32, as follows: Sec. 32. (a) Applies this section to the constitutional amendment proposed by the 76th Legislature, Regular Session, 1999, abolishing the Court of Criminal Appeals and establishing one Supreme Court with civil and criminal jurisdiction and revising the manner in which appellate justices and district judges are selected, using a combination of appointment, partisan elections, and nonpartisan retention elections. Provides that the constitutional amendment takes effect January 1, 2000. (b) Provides that each appellate or district justice or judge in office January 1, 2000, unless otherwise removed as provided by law, continues in office subject to this section. (c) Subjects each appellate or district justice or judge who has stood for election and is in office January 1, 2000, to retention or rejection, in the manner prescribed by law, at the general election preceding the expiration of the term for which each was elected. (d) Provides that each appellate or district justice or judge who was appointed before January 1, 2000, has not stood for election, and is in office January 1, 2000, must, before becoming subject to retention or rejection, stand for election in accordance with the law as it existed immediately before January 1, 2000, and that law is continued in effect for that purpose. (e) Requires the secretary of state by rule to prescribe any procedures necessary to implement the judicial selection system in accordance with the applicable provisions of this constitution and the Election Code, subject to the provisions of Subsection (j). (f) Provides that each justice of the Supreme Court and judge of the criminal court of appeals serving on January 1, 2000, continues in office as a justice of the Supreme Court. Provides that the person serving as chief justice of the Supreme Court continues in office as chief justice. Requires a vacancy in a position on the Supreme Court held by a former Supreme Court or Court of Criminal Appeals justice or judge under this subsection to be filled in accordance with Sections 2 (Supreme Court; justices; sections; eligibility; election; vacancies) and 28 (Vacancies in judicial offices) of this article only when the justice or judge resigns or otherwise leaves office or when the justice's or judge's term ends and the justice or judge was not elected or does not run for retention or is not retained after running in a retention election, as applicable. Prohibits the first vacancies on the Supreme Court occurring after January 1, 2000, that would otherwise be filled as provided by Sections 2 and 28 of this article from being filled until the number of justices is reduced to the number provided by Section 2 of this article. (g) Provides that a matter pending in any court on January 1, 2000, remains pending in that court for disposition in the manner provided by law in effect when the matter was filed in that court, unless otherwise provided by law or this subsection. Provides that a matter pending before the Court of Criminal Appeals immediately before January 1, 2000, is considered pending in the Supreme Court on that date. Authorizes the Supreme Court by rule or order to make any provision necessary to ensure that a change made by this article or by the legislature in conformance with this article does not adversely affect the substantial rights of any party having a matter pending before any court on January 1, 2000. (h) Provides that rules adopted by a court that are in effect on January 1, 2000, are continued in effect until superseded by law or court rule, except as otherwise provided by law. (i) Provides that the members of the State Judicial Qualifications Commission on the effective date of this article continue in office, and requires the existing commission to continue to operate pursuant to Section 1-a (Retirement, censure, removal and compensation of justices and judges; State Commission on Judicial Conduct; procedure), Article V, Texas Constitution, until otherwise provided by law. (j) Authorizes the Supreme Court by rule or order to adopt any additional saving or transitional procedures or provisions the Supreme Court considers appropriate to implement this article fairly and efficiently, before January 1, 2003. Authorizes a rule or order under this subsection to be superseded by statute. SECTION 4. Requires this proposed constitutional amendment to be submitted to the voters at an election to be held November 2, 1999. Sets forth the language of the ballot.