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.