HBA-JLV, AMW S.B. 1434 77(R)BILL ANALYSIS


Office of House Bill AnalysisS.B. 1434
By: Ogden
Judicial Affairs
5/18/2001
Committee Report (Amended)



BACKGROUND AND PURPOSE 

Under current law, the Commissioners Court of Brazos County is not
authorized to fund criminal law magistrates.  Senate Bill 1434 establishes
funding for criminal law magistrates and sets forth provisions relating to
the duties and appointment of a magistrate. 

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. 

ANALYSIS

Senate Bill 1434 amends the Government Code to authorize the judges of the
district courts and county courts at law in Brazos County (judges), with
the consent and approval of the Commissioners Court of Brazos County, to
jointly appoint one or more magistrates.  The bill authorizes the judges to
authorize one or more magistrates to share service with more than one court
and provides that, if a magistrate serves more than one court, the
magistrate's appointment must be made with the unanimous approval of all
the judges under whom the magistrate serves (Sec. 54.1041).  The bill sets
forth provisions regarding the qualifications of and compensation for a
magistrate (Secs. 54.1042 and 54.1043).  The bill also sets forth
provisions regarding judicial immunity and termination of a magistrate's
employment (Secs. 54.1044 and 54.1045).   

The bill sets forth provisions regarding proceedings that may be referred
to a magistrate and procedures for an order of referral (Secs. 54.1046 and
54.1047).  The bill prescribes the powers of a magistrate and sets forth
provisions regarding notice of a hearing before a magistrate (hearing),
witnesses who appear before a magistrate, and the record of evidence in a
hearing (Secs. 54.1048-54.1051).  The bill also sets forth provisions
regarding the transmission by the magistrate of a report and related papers
at the conclusion of the hearing, a hearing before the judge of the
referring court after notice of the magistrate's findings, the effect of
the magistrate's report pending appeal of the report, and judicial action
on an action taken by the magistrate (Secs. 54.1052-54.1055). 

The bill requires a court to determine if the nonprevailing party is able
to defray the costs of the magistrate. If the court determines that the
nonprevailing party is able to pay those costs, the bill requires the court
to impose the magistrate's fees as costs against the nonprevailing party.
The bill requires the Commissioners Court of Brazos County to set the
amount of the magistrate's fees that may be imposed as costs and prohibits
the magistrate's fees in a case from exceeding $50, unless a higher fee is
authorized by law for a particular action taken by the magistrate.  The
bill requires the clerk of the referring court to collect the magistrate's
fees and deposit the fees in the county treasury (Sec. 54.1056). 

EFFECTIVE DATE

On passage, or if the Act does not receive the necessary vote, the Act
takes effect September 1, 2001. 

 EXPLANATION OF AMENDMENTS

Committee Amendment No. 1 removes provisions authorizing a judge of a court
authorized by the commissioners court of Brazos County (court) to refer
criminal cases to a magistrate for proceedings involving a pretrial motion,
a writ of habeas corpus, an examining trial, a motion to modify or revoke
probation, and any matter the judge considers necessary and proper.  The
amendment removes the provisions authorizing a juvenile court judge to
refer to a magistrate any matter the court may refer to a referee under the
juvenile justice code.    The amendment removes provisions authorizing a
judge of a court to refer to a magistrate a civil case for proceedings
involving a pretrial motion, a default or agreed judgment, an alternative
dispute resolution procedure, a postjudgment matter, and any other matter
the judge considers necessary and proper (Sec. 54.1046).  The amendment
specifies the magistrate's duties that an order of referral is required,
rather than authorized, to contain an order of referral  (Sec. 54.1047).   

The amendment removes provisions authorizing the magistrate to make
findings of fact on evidence, formulate conclusions of law, rule on a
pretrial motion, recommend the rulings, orders, or judgment to be made in a
case, regulate proceedings in a hearing, and perform any action necessary
and proper for the efficient performance of the duties required by the
order of referral.  The amendment also removes provisions prohibiting the
magistrate from entering a ruling on any issue of law or fact if that
ruling could result in dismissal or require dismissal of a pending case,
and authorizing the magistrate to make findings, conclusions, and
recommendations on those issues (Sec. 54.1048).