74(R) SB 94 House Committee Report

BILL ANALYSIS

C.S.S.B. 94
By: Ellis (Madden)
05-12-95
Committee Report (Substituted)

BACKGROUND

Currently, Texas judges, with the exception of municipal judges,
are chosen by election on a partisan ballot. Texas' method of
electing certain judges has been subjected to repeated challenges
under the federal Voting Rights Act.

The Texas judicial system has been criticized for the influence of
campaign contributions on the elections and the lack of minority
participation in the judiciary. A bipartisan work group reviewed
ideas for reforming Texas' judicial selection, including
nonpartisan elections, alternative voting systems, appointment
systems, subdistricts and campaign finance reform.

PURPOSE

As proposed, C.S.S.B. 94 regulates political contributions,
expenditures and advertising in connection with certain judicial
candidates and officeholders, and sets forth guidelines for
personal financial statements filed by certain judicial
officeholders. Provides civil and criminal penalties.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is granted
to the Texas Ethics Commission in SECTION 1 (Sections 253.175(d)
and 253.163(f), Election Code), SECTION 6 (Section 255.008(e),
Election Code).

The authority to issue order is given to the Ethics Commission in
SECTION 1 (Sections 253.165 (b) and 253.170 (c), Election Code).

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Chapter 253, Election Code, by adding Subchapter
F, as follows:

SUBCHAPTER F. JUDICIAL CAMPAIGN FAIRNESS ACT

Sec. 253.151. APPLICABILITY OF SUBCHAPTER. Provides that this
subchapter applies only to a political contribution or
political expenditure in connection with certain judicial
offices.

Sec. 253.152. DEFINITIONS. Defines "complying candidate,"
"complying officeholder," "in connection with an election,"
"judicial district," "noncomplying candidate," and "statewide
judicial office."

Sec. 253.153. CONTRIBUTION PROHIBITED EXCEPT DURING ELECTION
PERIOD. (a) Sets forth time periods during which a judicial
candidate or officeholder, a specific-purpose committee for
supporting or opposing a judicial candidate, or a specific-purpose committee for assisting a judicial officeholder
(specific-purpose committee) may not knowingly accept a
political contribution.

(b) Provides that Subsection (a)(2) does not apply to a
political contribution what was made and accepted with the
intent that it be used to defray expenses incurred in
connection with an election contest.

(c) Authorizes a judicial candidate who does not have an
opponent whose name will appear on the ballot or a specific-purpose committee for supporting such a candidate to accept
a political contribution after another person files a
declaration of write-in candidacy opposing the candidate.

(d) Provides that a person who violates this section is
liable for a civil penalty not to exceed three times the
amount of the political contributions accepted in violation
of this section.

Sec. 253.154. WRITE-IN CANDIDACY. (a) Prohibits a write-in
candidate for judicial office or a specific-purpose committee
for supporting a write-in candidate for judicial office from
knowingly accepting a political contribution before the
candidate files a declaration of write-in candidacy.

(b) Provides that a person who violates this section is
liable for a civil penalty not to exceed three times the
amount of the political contributions accepted in violation
of this section.

Sec. 253.155. CONTRIBUTION LIMITS. (a) Prohibits a judicial
candidate, except as provided by Subsection (c), from
accepting political contributions from a person that in the
aggregate exceed the limits prescribed by Subsection (b) in
connection with each election in which the candidate is
involved.

(b) Sets forth contribution limits.

(d) Provides that a contribution by a law firm whose members
are each members of a second law firm is considered a
contribution by the firm that has members other than the
ones they have in common.

(e) Provides that a person who violates this section is
liable for a civil penalty not to exceed three times the
amount of the political contributions accepted in violation
of this section.

Sec. 253.156. CONTRIBUTION TO CERTAIN COMMITTEES CONSIDERED
CONTRIBUTION TO CANDIDATE. Provides that a contribution to a
specific-purpose committee for supporting a judicial
candidate, opposing the candidate's opponent, or assisting the
candidate as an officeholder is considered a contribution to
the candidate.

Sec. 253.157. LIMIT ON CONTRIBUTION BY MEMBER OR GENERAL-PURPOSE COMMITTEE OF LAW FIRM. (a) Prohibits a judicial
candidate from accepting a political contribution in excess of
$50 from a person if:

(1) the person is a member of a law firm or a general-purpose committee established or controlled by a law firm;
and

(2) the contribution, when aggregated with all political
contributions accepted by the candidate from other members
of the law firm or from a general-purpose committee
established or controlled by the law firm in connection
with the election, would exceed six times the applicable
contribution limit under Section 253.155.

(b) Requires a candidate who receives a political
contribution that violates Subsection (a) to return the
contribution by a certain deadline.

(c) Provides that a candidate who violates this section is
liable for a civil penalty not to exceed three times the
total amount of political contributions accepted from
members of or general-purpose committees established or
controlled by the law firm in connection with the election.

(d) Provides that a general-purpose committee is established
or controlled by a law firm if the committee is established
or controlled by members of the law firm.

(e) Defines "law firm," "member," "of counsel," and "of the
firm."

Sec. 253.158 CONTRIBUTION BY SPOUSE OR CHILD CONSIDERED TO BE
CONTRIBUTION BY INDIVIDUAL. Provides that (a) for Sections
253.155 and 253.157 that a contribution by a spouse or child
is to be considered a contribution by the individual; and (b)
defines "child."

Sec. 253.159. EXCEPTION TO CONTRIBUTION LIMITS. Provides that
Sections 253.155 and 253.157 do not apply to an individual who
is related within the second degree as determined by
Subchapter B, Chapter 573, Government.

Sec. 253.160. AGGREGATE LIMIT ON CONTRIBUTIONS FROM AND DIRECT
CAMPAIGN EXPENDITURES BY GENERAL-PURPOSE COMMITTEE. (a)
Prohibits a judicial candidate or officeholder or a specific-purpose committee from accepting a political contribution from
a general-purpose committee that, when aggregated with each
other political contribution from a general-purpose committee
in connection with an election, exceeds 15 percent of the
applicable limit on expenditures prescribed by Section
253.168, regardless of whether the limit on expenditures is
suspended.

(b) Requires a candidate or officeholder who receives a
political contribution that violates Subsection (a) to
return the contribution to the contributor by a certain
deadline.

(d) Provides that this section does not apply to a political
expenditure by the principal political committee of the
state executive committee or a county executive committee of
a political party that complies with Section 253.171(b).

(e) Provides that a person who violates this section is
liable for a civil penalty not to exceed three times the
amount by which the political contributions accepted in
violation of this section exceed the applicable limit
prescribed by Subsection (a).

Sec. 253.161. USE OF CONTRIBUTION FROM NONJUDICIAL OFFICE
PROHIBITED. (a) Sets forth the criteria under which a judicial
candidate, officeholder, or specific-purpose committee is
prohibited from using a political contribution to make a
campaign or officeholder expenditure for judicial office.

(b) Provides that a person who violates this section is
liable for a civil penalty not to exceed three times the
amount of political contributions used in violation of this
section.

Sec. 253.162. RESTRICTIONS ON REIMBURSEMENT OF PERSONAL FUNDS
AND PAYMENTS On CERTAIN LOANS. (a) Prohibits a judicial
candidate or officeholder who makes political expenditures
from personal funds from reimbursing the personal funds from
political contributions in certain aggregate amounts for each
election in which the person's name appears on the ballot.

(b) Prohibits a candidate or officeholder to repay loans
from people related to the candidate with political
contributions.

(d) Provides that a person who violates this section is
liable for a civil penalty not to exceed three times the
amount by which the reimbursement made in violation of this
section exceeds the applicable limit prescribed by
Subsection (a).

Sec. 253.163. NOTICE REQUIRED FOR CERTAIN POLITICAL
EXPENDITURES. (a) Prohibits a person, other than a candidate,
officeholder, or the principal political committee of the
state or county executive committee of a political party, from
making political expenditures that exceed a specific amount
for the purpose of supporting, opposing, or assisting a
candidate other than a statewide judicial office without
written declaration filed with the appropriate authority.

(b) Prohibits a person, other than a candidate,
officeholder, or the principal political committee of the
state or county executive committee of a political party,
from making political expenditures that exceed a specific
amount for the purpose of supporting, opposing, or assisting
a candidate for statewide judicial office without written
declaration filed with the commission.

(d) Requires a declaration received under Subsection (a) or
(b) to be filed with the records of each appropriate
judicial candidate or officeholder. Requires the
declaration, if the person intends to make only political
expenditures opposing a judicial candidate, to be filed with
the records of each candidate for the office.

(e) Authorizes an expenditure made by a political committee
or other association that consists only of costs incurred in
contacting the committee's or association's membership to be
made without the declaration required by Subsection (a) or
(b).

(f) Requires a person who makes a political expenditure
benefitting more than one judicial candidate or officeholder
to, in accordance with rules adopted by the commission,
allocate a portion of the expenditure in proportion to the
benefit. Sets forth beneficiaries of political expenditures
for purposes of this subsection.

(g) Provides that a person who violates this section is
liable for a civil penalty not to exceed three times the
amount of the political expenditures made in violation of
this section.

Sec. 253.164. VOLUNTARY COMPLIANCE. (a) Sets forth two
declarations required to be filed when a person becomes a
candidate for a judicial office.

(b) Establishes the candidates to which the contribution and
reimbursement limits prescribed by this subchapter apply.

(c) Prohibits a judicial candidate from knowingly accepting
a campaign contribution, or making or authorizing a campaign
expenditure before a declaration under Subsection (a) is
filed.

(d) Provides that a person who violates Subsection (c) is
liable for a civil penalty not to exceed three times the
amount of the political contributions or political
expenditures made in violation of this section.

Sec. 253.165. EFFECT OF NONCOMPLYING CANDIDATE. (a)
Establishes criteria under which a complying candidate or
specific-purpose committee supporting the candidate is not
required to comply with the prescribed limits on
contributions, expenditures, and the reimbursement and use of
personal funds.

(b) Requires the executive director of the commission or the
county clerk to issue an order suspending the financial
limits for a specific office no later than 10 days after the
director or county clerk determines a candidate has filed
the declaration of intent to exceed the limits or a
complying candidate has exceeded the prescribed limit.

(c) Authorizes the executive director or the county clerk to
issue an order under Subsection (b) only in connection with
an office for which a candidate files a campaign treasurer
appointment. Requires a county clerk who issues an order
under Subsection (b) to deliver a copy of the order to the
commission.
Sec. 253.166. BENEFIT TO COMPLYING CANDIDATE. Entitles a
complying candidate to state on political advertising that the
candidate complies with the Judicial Campaign Fairness Act,
regardless of whether the limits on contributions,
expenditures and the reimbursement and use of personal funds
are later suspended. Provides that a noncomplying candidate is
not entitled to this benefit.

Sec. 253.167. CERTIFICATION OF POPULATION; NOTICE OF
CONTRIBUTION AND EXPENDITURE LIMITS. (a) Sets forth
requirements of the secretary of state.

(b) Requires the commission or county clerk, based on the
certification of population, to deliver to each candidate,
within a specific time period, written notice of the
contribution and expenditure limits applicable to the office
sought.

Sec. 253.168. EXPENDITURE LIMITS. Sets forth limits for
political expenditures for a complying candidate. Provides
that a complying candidate who violates this section is liable
for a civil penalty not to exceed three times the amount by
which the political expenditures made in violation of this
section exceeds the applicable limit prescribed by Subsection
(a).

Sec. 253.169. EXPENDITURE BY CERTAIN COMMITTEES CONSIDERED
EXPENDITURE BY CANDIDATE. (a) Provides that an expenditure by
a specific-purpose committee supporting, opposing, or
assisting a candidate is considered an expenditure by the
candidate unless the candidate files an affidavit disclaiming
political affiliation with the appropriate authority.

(b) Provides that this section applies only to an
expenditure as to which the candidate or officeholder
receives notice as required by Section 254.128.

(c) Requires an affidavit under this section to be filed
with the next report the candidate or officeholder is
required to file under Chapter 254 following receipt of the
notice required by Section 254.128.
Sec. 253.170. EFFECT OF CERTAIN POLITICAL EXPENDITURES. (a)
Provides that a complying candidate for an office other than
a statewide judicial office or a specific-purpose committee
supporting such a candidate is not required to comply with
this subchapter's financial limits if a person other than the
candidate's opponent or opposing political party makes
political expenditures against the candidate that exceed
$5,000.

(b) Provides that a complying candidate for a statewide
judicial office or a specific-purpose committee supporting
such a candidate is not required to comply with this
subchapter's financial limits if a person other than the
candidate's opponent or opposing political party makes
political expenditures against the candidate that exceed
$25,000.

(c) Requires the executive director of the commission or the
county clerk to issue an order suspending the financial
limits for a specific office no later than 10 days after the
director or county clerk determines a candidate has filed
the declaration of intent to exceed expenditure limits or a
political expenditure that exceeds the limit has been made.

(d) Authorizes the executive director or county clerk to
deliver an order under Subsection (c) only in connection
with an office for which a candidate files a campaign
treasurer appointment.

(e) Provides that an expenditure made by a political
committee or other association that consists only of costs
incurred in contacting the committee's or association's
membership does not count towards the prescribed limit.

Sec. 253.171. CONTRIBUTION FROM OR DIRECT CAMPAIGN EXPENDITURE
BY POLITICAL PARTY. (a) Provides that, except as provided by
Subsection (b), a political contribution or a campaign
expenditure made by the principal political committee of the
state or county executive committee of a political party is
considered to be a political expenditure.

(b) Sets forth criteria for political expenditures to which
Subsection (a) does not apply.

Sec. 253.172. RESTRICTION ON EXCEEDING EXPENDITURE LIMITS. (a)
Prohibits a candidate who files a declaration of compliance
under Section 253.164(a)(1) who later files a declaration of
intent to exceed the limits on expenditures and the use of
personal funds under Section 253.164(a)(2) or a specific-purpose committee from making a political expenditure that
causes the person to exceed the prescribed applicable limit
before 60 days after the candidate files a declaration of
intent to exceed the limits.

(b) Provides that a person who violates this section is
liable for a civil penalty not to exceed three times the
amount of political expenditures made in violation of this
section.

Sec. 253.173. AGREEMENT TO EVADE LIMITS PROHIBITED. Prohibits
candidates from making agreements to not comply with the ACT
or to solicit a person to enter a campaign as a non-complying
candidate.

Sec. 253.174. MISREPRESENTATION OF OPPONENT'S COMPLIANCE WITH
OR VIOLATION OF SUBCHAPTER PROHIBITED. Prohibits a candidate
from knowingly misrepresenting that an opponent that is not in
compliance.

Sec. 253.175. JUDICIAL CAMPAIGN FAIRNESS FUND. (a)-(b)
Provides that the judicial campaign fairness fund is an
account in the general revenue fund consisting of recovered
penalties and gifts or grants received by the commission.

(c) Authorizes the fund to be used only for voter education
projects relating to judicial campaigns; and payment of
costs incurred in imposing civil penalties under this
subchapter.

(d) Requires the fund to be permitted to accumulate until
the balance is sufficient to permit the publication of a
voter's guide. Requires the commission to implement this
subsection and adopt rules under which a candidate must
provide information to the commission for inclusion in the
voter's guide. Requires the candidate, in providing the
information, to comply with applicable provisions of the
Code of Judicial Conduct. Requires the voter's guide to
indicate whether each candidate is a complying candidate or
noncomplying candidate. Provides that the listing of a
noncomplying candidate may not include any information other
than the candidates name and must include a statement that
the candidate is not entitled to have complete information
included in the guide.

(e) Authorizes the commission to accept gifts and grants for
the purposes described by Subsections (c)(1) and (d).
Requires funds received under this subsection to be
deposited to the credit of the judicial campaign fairness
fund.

(f) Provides that the judicial campaign fairness fund is
exempt from Sections 403.094 and 403.095, Government Code.

Sec. 253.176. CIVIL PENALTY. (a) Authorizes the commission to
impose a civil penalty against a person only after a formal
hearing as provided by Chapter 571E, Government Code.

(b) Sets forth provisions on which the commission shall base
the amount of the penalty.

(c) Requires a penalty collected under this section to be
deposited to the credit of the judicial campaign fairness
fund.

SECTION 2. Amends Sections 253.003, 253.004, and 253.005, Election
Code, to provide that those sections do not apply to a political
contribution made or accepted in violation of Subchapter F.

SECTION 3. Amends Chapter 254C, Election Code, by adding Section
254.0611, as follows:

Sec. 254.0611. ADDITIONAL CONTENTS OF REPORTS BY CERTAIN
JUDICIAL CANDIDATES. Sets forth the required content of each
report. Defines "law firm," "member," and "child."

SECTION 4. Amends Chapter 254D, Election Code, by adding Section
254.0911, as follows:

Sec. 254.0911. ADDITIONAL CONTENTS OF REPORTS BY CERTAIN
JUDICIAL OFFICEHOLDERS. Requires each report by a holder of a
judicial office to contain certain information.
SECTION 5. Amends Chapter 254E, Election Code, by adding Section
254.1211, as follows:

Sec. 254.1211. ADDITIONAL CONTENTS OF REPORTS OF CERTAIN
COMMITTEES. Sets forth the requirements for each report by a
specific-purpose committee which supports or opposes
candidates or assists a holder of a judicial office.

SECTION 6. Amends Chapter 255, Election Code, by adding Section
255.008, as follows:

Sec. 255.008. DISCLOSURE ON POLITICAL ADVERTISING FOR JUDICIAL
OFFICE. (a) Provides that this section applies only to a
candidate or political committee covered by Chapter 253F.

(b) Allows a specific statement to accompany any political
advertising by a candidate or a specific-purpose committee
that has declared compliance with the limits on
expenditures.

(c) Requires a specific statement to accompany any political
advertising by a candidate or a specific-purpose committee
that has declared an intention to exceed the limits on
expenditures.

(d) Requires the commission to adopt rules providing for
requirements on disclosures in written, television, and
radio political advertising.

(e) Provides that a person who violates this section commits
a Class B misdemeanor.

SECTION 7. Amends Chapter 159, Local Government Code, by adding
Subchapter C, as follows:

SUBCHAPTER C. FINANCIAL DISCLOSURE BY COUNTY JUDICIAL OFFICERS

Sec. 159.051. DEFINITION. Defines "county judicial officer."

Sec. 159.052. FILING REQUIREMENT. Requires a county judicial
officer or a candidate for office as a county judicial officer
to file with the county clerk a financial statement that
complies with Sections 572.022 and 572.023, Government Code.

Sec. 159.053. FILING DATES; TIMELINESS OF FILING. (a) Requires
a county judicial officer to file the financial statement
required by this subchapter within the time prescribed by
Section 572.026, Government Code. Requires a candidate for
office as a county judicial officer to file the financial
statement required by this subchapter within the time
prescribed by Section 572.027, Government Code.

(b) Provides that the timeliness of the filing is governed
by Section 572.029, Government Code.

Sec. 159.054. PREPARATION OF FORMS. (a) Authorizes the county
clerk to design a form to be used for filing the financial
statement required by this subchapter; or require that a form
designed by the Texas Ethics Commission under Chapter 572,
Government Code, be used for filing the financial statement.

(b) Requires the county clerk to mail two copies of the form
to each person required to file under this subchapter within
the time prescribed by Section 572.030(c), Government Code.

Sec. 159.055. PUBLIC ACCESS TO STATEMENTS. (a) Provides that
a financial statement filed under this subchapter is public
record. Requires the county clerk to maintain the financial
statements in a manner that is accessible to the public during
regular business hours.

(b) Requires the county clerk until the first anniversary of
the date a financial statement is filed, each time a person
requests to see the financial statement, to place in the
file a statement of the person's name and address, whom the
person represents and the date of the request. Requires the
county clerk to maintain that statement in the file until
the first anniversary of the date the financial statement is
filed.

(c) Provides that the county clerk, after the second
anniversary of the date a person ceases to be a county
judicial officer, may and on notification from the former
officer shall destroy each financial statement filed by the
officer.

Sec. 159.056. FAILURE TO FILE; CRIMINAL PENALTY. (a) Provides
that a person commits an offense if the person is a county
judicial officer or a candidate for office as a county
judicial officer; and knowingly fails to file a financial
statement as required by this subchapter.

(b) Provides that an offense under this section is a Class
B misdemeanor.

SECTION 8. Amends Section 159.032(3), Local Government Code, to
redefine "county judicial officer."

SECTION 9. Provides that Sections 253.155, 253.156, 253.157,
253.163 through 253.171, and 253.173, Election Code, as added by
this Act, are not severable, and none would have been enacted
without the others. Provides that if any one of those provisions is
held invalid, each of those provisions is invalid.

SECTION 10. (a) Provides that if this Act receives the votes
required by Section 39, Article III, Texas Constitution, for an
effective date before the 91st day after the last day of the
legislative session:

(1) Sections 1, 2, 9, 11, and this section of this Act take
effect immediately; and

(2) Sections 3-5 of this Act take effect July 1, 1995.
(b) Provides that if this Act does not receive the votes
required by Section 39, Article III, Texas Constitution, for
an effective date before the 91st day after the last day of
the legislative session, Sections 1-5, 9, 11, and this section
take effect September 1, 1995.

(d) Provides that Chapter 253F, Election Code, as added by
this Act, applies only to a political contribution accepted or
political expenditure made on or after the effective date of
Section 1 of this Act. Provides that a political contribution
accepted or political expenditure made before the effective
date of Section 1 of this Act is governed by the law effect on
the date the contribution was accepted or the expenditure was
made and is not aggregated with political contributions
accepted or political expenditures made on or after that date.

(e) Provides that Sections 254.0611, 254.0911, and 254.1211,
Election Code, as added by this Act, apply to account
balances, assets, and debts existing as of the effective date
of Sections 3-5 of this Act and to the reporting of a
political contribution accepted before the effective date of
Sections 3-5 of this Act is governed by the law in effect on
the date it was accepted.

SECTION 11. (a) Requires the secretary of state, for purposes of
Chapter 253F, Election Code, to execute certain deliveries no later
than 15 days after the effective date of Section 1 of this Act.

(b) Requires the Texas Ethics Commission or county clerk to
deliver to each candidate for an office covered by Chapter
253F, Election Code, written notice of the contribution limits
applicable to the office under Section 253.168, Election Code,
within a specific time period.

SECTION 12. Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute of the senate bill includes the definitions of
"member of a law firm" and language from Representative Madden's HB
262 including attorneys "of counsel" or "of the firm." The
committee substitute includes language from HB 262 providing that
contributions from a law firm whose members are all members of a
larger firm count as a contribution from the larger firm. The
substitute deletes the voluntary limit on use of personal funds.
Exempts contributions from immediate family members from
contribution limits. The substitute has language from HB 262
prohibiting agreements to evade the limits by soliciting a non-complying opponent. The substitute also includes language from HB
262 prohibiting misrepresentation of opponent's compliance with the
act.

SUMMARY OF COMMITTEE ACTION

SB 94 was considered by the Committee on Elections in a public
hearing on May 11, 1995. The following persons testified in favor
of SB 94: George E. Christian representing Texans for Judicial
Selection Reform; Tom Smith representing Public Citizen; George
Strong representing himself; Ashley Smith representing Texans for
Lawsuit Reform; and Suzy Woodford representing Common Cause Texas.
The Committee considered a complete substitute for SB 94. The
substitute was adopted without objection. SB 94 was reported
favorably as substituted, with the recommendation that it do pass
and be printed, by a record vote of: 7 ayes, 0 nays, 0 pnv, 2
absent.