HBA-KMH C.S.S.J.R. 9 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.S.J.R. 9
By: Ellis 
Judicial Affairs
5/6/1999
Committee Report (Substituted)


BACKGROUND AND PURPOSE

Currently, Texas is one of the few states in which judges are elected for
each term of office.  Texas has received criticism for this system which
forces judges to wage expensive political battles during a term in order to
return for the next term.  According to the Office of Court Administration
report Public Trust and Confidence in the Courts and the Legal Profession
in Texas, "Seventy percent of Texans believed that judges should be elected
by the people. The next most popular method for selecting judges (noted by
20 percent of the survey respondents) was to have judges appointed by the
Governor and subject to retention elections." This bill would reduce the
partisan election of judges by requiring appellate justices once elected or
appointed to remain in office up to 20 years, after an initial partisan
election, by a retention or rejection election. 

Texas is one of only two states, Oklahoma is the other, that has a
bifurcated appellate system.  A problem that arises in this system is when
the Supreme Court and the Court of Criminal Appeals offer different
opinions on the same questions of law due to overlapping jurisdiction. 

As proposed, C.S.S.J.R. 9 requires the submission to the voters of a
constitutional amendment to provide for the abolishment of the Court of
Criminal Appeals and the establishment of one Supreme Court with civil and
criminal jurisdiction and to revise the manner in which appellate justices
are selected, using a combination of appointment, partisan elections, and
nonpartisan retention elections and to increase the number of Justices
serving on the Supreme Court. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the secretary of state and the Supreme
Court in SECTION 3 (Section 32, Article V, Texas Constitution) of this
bill.  

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Sections 1, 2, 3, 6, and 28, Article V, Texas
Constitution, as follows: 

Sec.  1.  Provides that a reference in this 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. Deletes the text requiring that the judicial power of the state be
vested in one Court of Criminal Appeals, as well as certain other state
courts. Assigns subsection designations to this section and makes
conforming and nonsubstantive changes. 

Sec.  2.  (a) Requires the Supreme Court to consist of a Chief Justice and
14, rather than 8, Justices, any eight, rather than five, of whom shall
constitute a quorum, and the concurrence of eight, rather than five, is
required to be necessary to a decision of a case, provided, that when the
business of the court may require, the court is authorized to sit in panels
of at least five Justices, rather than sections, as properly designated.
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. 

(b) Makes the eligibility provisions set forth in this subsection
applicable to any Justice who is appointed, as well as to any Justice who
is elected, and includes a requirement that  a Justice be a resident of a
particular supreme court district if appropriate, as well as a resident of
the state. 

(c) Provides that an office of Justice, other than the office of Chief
Justice, is an elective position as provided by this section.  Requires the
legislature to divide the state into seven contiguous supreme court
districts (West, South, South Central, Central, North Central, East, and
Costal) that meet the population requirements of federal law, with each
district having two elected Justices.  Requires the Justices to be subject,
in the manner proved by law, to an initial election on a partisan ballot,
followed by retention or rejection on a nonpartisan ballot, by qualified
voters of their respective districts, rather than the state, at a general
election.  Requires the Justices on each election and on each successive
retention by the voters to hold their offices six years, or until their
successors are qualified, rather than elected and qualified.  Deletes the
requirement that three Justices be elected every two years. 

(d) Requires the Governor to appoint the Chief Justice, who holds office
for a term of six years or until a successor has qualified.  Prohibits a
new Chief Justice who is appointed from being a resident of the same
district in which the preceding Chief Justice resided. Provides that the
senior Justice also serves as Chief Justice until a successor has
qualified, on a vacancy in the office of the Chief Justice. 

(e) Prohibits a Chief Justice or Justice from serving on the court for more
than 20 years, comprising an aggregate of appointed and elected tenure and
regardless of the capacity served. 

(f) Requires the Chief Justice and Justices to each receive such
compensation as shall be provided by law.  Deletes text requiring the
governor to fill a Supreme Court vacancy by appointment which would last
only until the next general election. 

Assigns subsection designations to this section and makes conforming and
nonsubstantive changes. 

Sec.  3.  Authorizes the Supreme Court to issue writs of prohibition.
Requires appeals of death penalty cases to be assessed by the Supreme Court
and all other criminal cases to the Courts of Appeals, as prescribed by
law.  Authorizes the Supreme Court, on its own motion, to review a decision
of the Court of Appeals in a criminal case, as prescribed by law. Provides
that discretionary review by the Supreme Court is not a matter of right,
but of sound judicial discretion. Deletes text providing that Supreme Court
determinations of criminal law matters are not final.   Assigns subsection
designations to this section and makes conforming and nonsubstantive
changes. 

Sec.  6.  Requires the state to be divided into courts of appeals
districts, taking into consideration the supreme court districts. Requires
the Chief Justice and Justices to be subject, in the manner provided by
law, to an initial election on a partisan ballot, followed by retention or
rejection on a nonpartisan ballot, by qualified voters of their respective
districts at a general election, rather than elected.  Requires the
Justices on each election and on each successive retention by the voters to
hold their offices six years, or until their successors are qualified.
Prohibits a Chief Justice or Justice from serving on the court for more
than 20 years, comprising an aggregate of appointed and elected tenure and
regardless of the capacity served. Requires the Chief Justices and Justices
to each receive for their services the sum provided by law.  Assigns
subsection designations to this section and makes conforming and
nonsubstantive changes. 

Sec.  28.  Clarifies that vacancies in the offices of Justices and Judges
of the Supreme Court, the Courts of Appeals, and the District Courts,
rather than vacancies in the office of Judges of the Supreme Court, the
Court of Criminal Appeals, the Court of Civil Appeals, and the District
Courts are required to be filled by the Governor as prescribed by this
section. Requires vacancies in the office of the Chief Justice of the
Supreme Court to be filled by the Governor for the unexpired term. Deletes
the title of the section. Assigns subsection  designations to this section
and 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), Article
V, Texas Constitution. 

SECTION 3.  Amends Article V, 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
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 Justice or Judge in office January 1,
2000, unless otherwise removed as provided by law, continues in office
subject to this section. 

(c) Provides that each appellate Justice or Judge who has stood for
election and is in office January 1, 2000, is subject to retention or
rejection, in the manner provided by law, at the general election preceding
the expiration of the term for which each was elected. 

(d) Provides that each appellate 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 for appellate courts
in accordance with the applicable provisions of this constitution and the
Election Code. 

(f) Provides that each Justice of the Supreme Court and Judge of the Court
of Criminal 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 and 28 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 the law in
effect when the matter was filed in that court, unless otherwise provided
by the Supreme Court under this subsection or by other law.  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. 

(i) Requires the existing State Judicial Qualifications Commission
(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 and provides that members of the commission on
the effective date of this article continue in office. 

(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 in connection
with the changes made by the constitutional amendment described by
Subsection (a) of this section.  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 on November 2, 1999.  Sets forth
the required language for the ballot. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.S.J.R. 9 modifies the original in the caption by clarifying that this
bill relates to proposing a constitutional amendment abolishing the court
of criminal appeals and establishing one supreme court with civil and
criminal jurisdiction and revising the manner in which appellate Justices
are selected, using a combination of appointment, partisan elections, and
nonpartisan retention elections. The original caption provided that this
bill related to proposing a constitutional amendment providing for
gubernatorial appointment to fill vacancies in the offices of appellate
Justices and Judges and for nonpartisan retention elections for those
Justices and Judges. 

C.S.S.J.R. 9 modifies the original in SECTIONS 1, 2, and 3 (Article V,
Texas Constitution) by amending Sections 1 and 3 (which were not addressed
in the original), by changing amendments made in the original to Sections
2, 6, and 28, by adding Section 32, by repealing, rather than amending
Section 4, and by repealing Section 5, as follows: 

C.S.S.J.R. 9 modifies the original in SECTION 1 (Section 1, Article V,
Texas Constitution) to provide that a reference in this 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.  Deletes the text requiring that the judicial power of
the state be vested in one Court of Criminal Appeals, as well as certain
other state courts. Additionally, the substitute assigns subsection
designations to this section and makes conforming and nonsubstantive
changes. 

C.S.S.J.R. 9 modifies the original in SECTION 1 (Section 2, Article V,
Texas Constitution) to restructure the Supreme Court in accordance with the
abolition of the Court of Criminal Appeals as prescribed in Section 1, as
amended by this Act.  The substitute increases the number of Justices to
serve on the Supreme Court from eight to fourteen, the number of Justices
necessary for a determination in a case from five to eight, and the number
of Justices required to provide a quorum from five to eight.  The
substitute also authorizes the court to sit in panels of at least five
justices for hearing a case.  Additionally, the substitute requires the
Supreme Court to sit en banc during proceedings involving capital
punishment, rehearings of cases on granted motions, and other cases as
required by law.  The substitute further provides for the state to be
divided into supreme court districts, as prescribed.  Requires the Governor
to appoint the Chief Justice. Prohibits a new Chief Justice who is
appointed from being a resident of the same district in which the preceding
Chief Justice resided.  Provides that the senior Justice also serves as
Chief Justice until a successor has qualified, on a vacancy in the office
of the Chief Justice.  The substitute also prohibits a Chief Justice or
Justice from serving on the court for more than 20 years, comprising an
aggregate of appointed and elected tenure and regardless of the capacity
served.  The substitute deletes provisions of the original relating to the
initial term of an appointed Justice or Chief Justice, redesignates
subsection designations made to this section in the original and makes
conforming and nonsubstantive changes. 

C.S.S.J.R. 9 modifies the original in SECTION 1 (Section 3, Article V,
Texas Constitution) to authorize the Supreme Court to issue writs of
prohibition and, on its own motion, to review a decision of the Court of
Appeals in a criminal case, as prescribed by law.  Additionally, the
substitute requires appeals of death penalty cases to be assessed by the
Supreme Court and all other criminal cases to the Courts of Appeals, as
prescribed by law.  The substitute further provides that discretionary
review by the Supreme Court is not a matter of right, but of sound judicial
discretion. Deletes text providing that Supreme Court determinations of
criminal law matters are not final. The  substitute redesignates subsection
designations made to this section in the original and makes conforming and
nonsubstantive changes. 

C.S.S.J.R. 9 modifies SECTION 1 of the original by repealing Section 4
(Court of Criminal Appeals; judges), Article V, Texas Constitution in
SECTION 2 of the substitute.  The original amended Section 4, as follows: 

_required the judges of the Court of Criminal Appeals (CCA) to have the
same qualifications and receive the same salaries as justices of the
Supreme Court, rather than associate justices of the Supreme Court;
required CCA judges, after the appointed term, to serve a six-year term for
each appointment or retention;  

_provided that a CCA judge on appointment to a vacancy, serves an initial
term of a specified time after taking the oath of office;  

_deleted text requiring the governor to appoint a judge for the purpose of
filling a vacancy; and  

_assigned subsection designations to the section.

C.S.S.J.R. 9 modifies the original in SECTION 1 (Section 6, Article V,
Texas Constitution) to provide for a similarly structured appointment,
election, retention plan, and compensation plan for Justices to the Courts
of Appeals, and for the consideration of Supreme Court districts when
dividing the state into districts for courts of appeals districts.  The
original provided that a Court of Appeals Justice on appointment to a
vacancy, serves an initial term of a specified time after taking the oath
of office. The substitute redesignates subsection designations made to this
section in the original and makes conforming and nonsubstantive changes. 

C.S.S.J.R. 9 modifies the original in SECTION 1 (Section 28, Article V,
Texas Constitution) to delete reference to the Court of Criminal Appeals
and requires vacancies in the office of the Chief Justice of the Supreme
Court, rather than vacancies in the office of Judge of a District Court, to
be filled by the Governor for the unexpired term. 

C.S.S.J.R. 9 modifies the original by deleting the text of SECTION 2
(proposed Temporary Provision). 

C.S.S.J.R. 9 modifies the original in SECTION 2 by repealing Sections 4
(Court of Criminal Appeals; Judges) and 5 (Jurisdiction of Court of
Criminal Appeals; terms of court; clerk), Article V, Texas Constitution. 

C.S.S.J.R. 9 modifies the original by redesignating SECTION 3 of the
original as SECTION 4. 

C.S.S.J.R. 9 modifies the original by adding new SECTION 3 which proposes
to add Section 32, Article  V, Texas Constitution.  For a more complete
analysis of this section please refer to the Section-by-Section Analysis of
this bill. 

C.S.S.J.R. 9 modifies the original in SECTION 4 (Submission Clause) to
require the ballot to state, "The constitutional amendment abolishing the
court of criminal appeals and establishing one supreme court with civil and
criminal jurisdiction and revising the manner in which appellate Justices
are selected, using a combination of appointment, partisan elections, and
nonpartisan retention elections."  The original required the ballot to
state, "The constitutional amendment providing for the governor to fill
vacancies in the offices of appellate Justices and Judges and providing for
nonpartisan retention elections for those Justices and Judges."