BILL ANALYSIS



H.B. 2028
By: Naishtat
March 21, 1995
Committee Report (Unamended)


BACKGROUND

     A recent judicial ethics opinion indicated that it would be
inappropriate for a master appointed by a probate court to conduct
probable cause hearings under the Texas Mental Health Code to
practice law in the court from which the appointment came.  This
ethics opinion emanates from the Texas Supreme Court-issued
judicial conduct rules which have the effect of law.  The
underlying rationale for the prohibition of masters practicing in
front of judges appointing them is that it would appear unfair to
allow a master to practice law before the judge who appointed the
lawyer as master when the judge wields control over the master and
his or her decisions due to the nature of the master-judge
relationship in civil practice.  This statutory relationship allows
for control not only by imposing a duty upon the court to ratify
the master's decisions, but also by charging the appointing court
with appellate jurisdiction over the master's decisions.
     This control by the appointing court does not exist under the
Texas Mental Health Code's probable cause provisions.  The probable
cause master appointed by the court makes a one-time, non-appealable, binding decision as to whether probable cause exists
for continued detention of a person held under an Order of
Protective Custody.  To prohibit these masters, whose appointment
is for a very limited duty, from practicing law in the mental
health courts will result in higher costs to counties to operate
the legal end of the mental health systems because courts will have
to employ full-time masters or pay a higher fee to induce a lawyer
to serve who will be precluded from further practice in the probate
court.  In addition, this prohibition will result in masters who
have no experience in mental health law or guardianship law hearing
these probable cause hearings.


PURPOSE

     To exclude probable cause masters appointed under the Texas
Mental Health Code from the prohibition against practicing law in
the court appointing them. 


RULEMAKING AUTHORITY

     It is the committee's opinion that this bill does not
expressly grant any additional rulemaking authority to a state
officer, department, agency, or institution.


SECTION BY SECTION ANALYSIS

     SECTION 1 adds a provision to Section 574.025(c) of the Health
And Safety Code to allow a master appointed to hear a probable
cause hearing under the Mental Health Code to practice law in the
court the master serves.


SECTION 2.  Emergency clause.  Effective date.


SUMMARY OF COMMITTEE ACTION

     Pursuant to a public notice posted March 15, 1995, in
accordance with House rules, the Committee on Judicial Affairs met
in a public hearing on March 21, 1995, to consider House Bill 2028. 
The Chair laid out H.B. 2028 and recognized the author, Rep.
Naishtat, to explain the bill.  The Honorable Guy Herman, judge for
Travis County statutory county Probate Court Number 1, testified
for the bill.  There were no other witnesses.  Rep. Solis moved to
report H.B. 2028 back to the full House favorably, without
amendment, with the recommendation that it do pass, be printed and
sent to the Committee on Local and Consent Calendars.  The motion
prevailed by the following record vote:  7 ayes, 0 nays, 0 PNV and
2 absent.