RBT S.B. 1346 76(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 1346
By: Ellis
Judicial Affairs
4/22/1999
Engrossed



BACKGROUND AND PURPOSE 

The State Commission on Judicial Conduct (commission) was created by
constitutional amendment in 1965 and given authority to discipline
appellate and district judges.  In 1970, that authority was extended to
other state judges, and in 1984 it was extended to former judges,
magistrates, and masters.  Currently, the commission has authority over
more than 3,300 judges. 

The commission's powers have steadily broadened to include public and
private admonitions, warnings, reprimands, and orders of education.  In
1987, Section 33.034, Government Code (Review of Commission Decision), was
added to provide for appellate review of sanctions imposed by the
commission.  While the commission itself may not remove a judge from
office, it may initiate formal proceedings against a judge -- a public
trial that may result in the removal of a judge from office by a
seven-member tribunal. 

Constitutional and legislative changes over the past three decades have
created incongruities within Chapter 33, Government Code (State Commission
on Judicial Conduct), and other relevant law.  S.B. 1346 amends Chapter 33
to improve consistency and clarity, and to provide consistency and
conformity with other relevant law. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Sections 33.001(a) and (b), Government Code, as follows:

(a)  Defines, for the purpose of Chapter 33, Government Code (State
Commission on Judicial Conduct), the following terms:  "censure,"
"chairperson," "clerk," "examiner," "formal hearing," "formal proceedings,"
"review tribunal," "sanction," and "special courts of review." Amends the
definition of "judge."  Redesignates Subdivisions (1), (2), and (3) to (4),
(8), and (12), respectively, and makes a nonsubstantive change.  

(b) Makes a nonsubstantive change.

SECTION 2.  Amends Section 33.002(a), Government Code, to make a
nonsubstantive change. 

SECTION 3.  Amends Section 33.005, Government Code, by amending Subsections
(b) and (c) and adding Subsection (e), as follows: 

(b)  Deletes examples of proper judicial conduct from the annual
statistical information to be included in the State Commission on Judicial
Conduct's (commission) annual report. 

(c)  Includes the editor of the Texas Bar Journal in a list of persons to
whom the commission is required to distribute its annual report. 

(e)  Requires the Texas Bar Journal to publish the annual report.
 
SECTION 4.  Amends Subchapter A, Chapter 33, Government Code, by adding
Section 33.006, as follows: 

Sec. 33.006.  IMMUNITY FROM LIABILITY  (a)  Sets forth the persons to whom
this section applies. 

(b)  Provides that a person to whom this section applies is not liable for
an act or omission committed by the person within the scope of the person's
official duties. 

(c)  Provides that such immunity is absolute and unqualified, and that it
extends to any action at law or in equity. 

SECTION 5.  Amends Section 33.021, Government Code, to make a
nonsubstantive change regarding the employment of special masters. 

SECTION 6.  Amends Section 33.022, Government Code, as follows:

Sec. 33.022.  New title:  INVESTIGATIONS AND FORMAL PROCEEDINGS.  (a)
Authorizes the commission to conduct a preliminary investigation of the
circumstances surrounding an allegation or appearance of misconduct or
disability of a judge to determine if the allegation or appearance is
frivolous.   

(b)  Requires the commission, if it finds an allegation or appearance to be
unfounded or frivolous during a preliminary investigation under Subsection
(a), to terminate the investigation. 

(c)  Sets forth the procedure that the commission must follow if the
preliminary investigation results do not determine an allegation or
appearance to be unfounded or frivolous. Sets forth actions the commission
may take if the preliminary investigation results do not determine an
allegation to be unfounded or frivolous.   

(d)  Requires the commission to serve an order of deposition to a person
other than the accused judge on both the person who is the subject of the
deposition and the judge who is the subject of the investigation (judge).
Provides that the order must be served within a reasonable amount of time
before the date of the deposition. 

(e)  Authorizes the commission to file an application in a district court
to enforce an order of deposition. 

(f)  Requires the commission to notify the judge, in writing, of the
disposition of a full investigation conducted by the commission under this
section.  Deletes former Subsection (f) to make a conforming change. 

(g)  Makes nonsubstantive changes.  Redesignated from existing Subsection
(b).   

(h)  Requires a notice served on a judge to inform the judge that formal
proceedings will be initiated against the judge to specify the standards,
rather than statute or rule, which the judge is contended to have violated.
Makes conforming changes. 

(i)  Redesignated from existing Subsection (b).  Makes conforming and
nonsubstantive changes. 

(j)  Redesignated from existing Subsection (e).  Makes conforming changes.  

(k)  Provides that a judge is not entitled to a jury trial in formal
proceedings before a special master or the commission. 

SECTION 7.  Amends Section 33.023, Government Code, by amending Subsection
(a) and adding  Subsection (d), as follows:   

Sec. 33.023.  New title:  PHYSICAL AND MENTAL INCAPACITY OF JUDGE.  (a)
Provides that in any investigation, in addition to proceeding, involving
the involuntary retirement of a judge because of a physical or mental
incapacity to discharge the judge's duty, the commission may order, rather
than require, a judge to submit to a physical and mental examination. 

(d)  Authorizes the commission, if a judge refuses to submit to an
examination ordered under this section, to petition the court for an order
compelling the judge to submit to the examination. 

SECTION 8.  Amends Section 33.024, Government Code, to make conforming
changes. 

SECTION 9.  Amends Section 33.025, Government Code, as follows:

Sec. 33.025.  New title:  ENFORCEMENT OF SUBPOENA.  (a)  Authorizes the
commission to file an application in a district court, with a special
master, or with a special court of review to enforce a subpoena issued
under this chapter.  Deletes existing text of Subsection (b) and Subsection
(c) entirely, regarding the enforcement of a subpoena 
.  
(b)  Authorizes a special master or special court of review to enforce by
contempt a subpoena issued under this chapter. 

SECTION 10.  Amends Section 33.026, Government Code, as follows:

Sec. 33.026.  New title:  WITNESS IMMUNITY.  (a)  Makes conforming changes.

SECTION 11.  Amends Section 33.027, Government Code, as follows:

(a)  Sec. 33.027.  New title: DISCOVERY.  (a)  Requires, in formal
proceedings or a proceeding before a special court of review, discovery to
be conducted according to the rules that generally apply to civil cases.
Deletes existing text regarding court-ordered deposition testimony.  Makes
a conforming change. 

(b)  Authorizes a special master, the commission, or a special court of
review, upon request, to expedite discovery in formal proceedings or in a
proceeding before a special court of review.  Makes a conforming change.
Deletes existing text regarding court-ordered deposition testimony. 

(c)  Provides that the discussions, thought processes, or individual votes
of the commission, the discussions or thought processes of commission
employees including special counsel, or the identity of the complainant or
informant, should that person request confidentiality, may not be the
subject of a discovery request in formal proceedings or in a proceeding
before a special court of review.  Makes a conforming change.  Deletes
existing text regarding courtordered deposition testimony. 

SECTION 12.  Amends Sections 33.028(a) and (b), as follows:

(a)  Makes a conforming change regarding the issuance of process.

(b)  Sets forth a list of persons who may serve process or execute a lawful
order under this chapter.  Makes a conforming change. 

SECTION 13.  Amends Section 33.029, Government Code, to make a conforming
change. 

SECTION 14.  Amends Section 33.030, Government Code, as follows:

Sec. 33.030.  New title:  ASSISTANCE TO COMMISSION, SPECIAL MASTER, OR
SPECIAL COURT OF REVIEW.  Makes conforming changes. 

SECTION 15.  Amends Section 33.031, Government Code, as follows:

Sec. 33.031.  NO AWARD OF COSTS.  Provides that neither court costs nor
attorney's fees may be awarded under this chapter. 

SECTION 16.  Amends Section 33.032, Government Code, as follows:

Sec. 33.032.  New title:  CONFIDENTIALITY OF PAPERS, RECORDS, AND
PROCEEDINGS.  (a)  Makes conforming changes. 

(b)  Provides that evidence introduced during the formal hearing shall be
public on the convening of the formal hearing.  Makes conforming changes. 

(d)  Provides that the disciplinary record of a judge, including any
private sanctions, is admissible in a subsequent proceeding under this
chapter. 

(e)  Authorizes a judge to make a written request that the commission
provide a person designated in the request, including the judge, with
certain specified information on the disposition of a complaint filed
against that judge.  Authorizes the commission to release such information,
but allows the commission to refuse to release the identity of a
complainant. 

SECTION 17.  Amends Section 33.033, Government Code, by amending
Subsections (a)-(d), as follows:   

(a)  Makes a nonsubstantive change.  

(b)  Authorizes the commission to inform a complainant that a public
sanction has been issued by the commission when notifying a complainant of
the disposition of a complaint. Makes nonsubstantive and conforming
changes. 

(c)  Prohibits the notification to a complainant from containing the name
of a judge unless a public sanction has been issued by the commission. 

(d)  Provides that the commission must include a copy of the public
sanction when notifying a complainant of the disposition of a complaint, if
the commission has issued such a sanction. 

SECTION 18.  Amends Sections 33.034(a), (d)-(f), and (h), relating to the
review of a decision of the commission, as follows: 

(a)  Makes a conforming change.

(d)  Sets forth a procedure for the filing of a charging document within 15
days of the appointment of a court of review.  Provides that the judge who
is the subject of such a document must receive the document, as well as
each justice on the court of review. Makes conforming changes. 

(e)  Provides that any evidence introduced during a proceeding under this
section is public. Makes a nonsubstantive change. 

(f)  Provides that a review procedure under this chapter, prospective to
this section, is governed to the extent practicable by the rules of law,
evidence, and procedure that apply to the trial of civil actions generally. 

(h)  Authorizes a review court under this chapter to grant one or more
continuances, not to exceed a total of 30 days, for good cause.  Makes
conforming changes. 
 
SECTION 19.  (a)  Provides that, except as provided under Subsection (b),
the change in law made by this Act applies only to an investigation or
proceeding under Chapter 33, Government Code, as amended by this Act,
instituted on or after the effective date of this Act. 

(b)  Provides that the change in law made by SECTION 4 of this Act applies
only to a cause of action that accrues on or after the effective date of
this Act.  Makes application of this Act prospective. 

SECTION 20.  Emergency clause.
   Effective date: upon passage.