PMWJ C.S.H.B. 1175 75(R)BILL ANALYSIS JUDICIAL AFFAIRS H.B. 1175 By: Thompson C.S.H.B. 1175 By: Thompson 5-1-97 Committee Report (Substituted) BACKGROUND Texas' method of selecting judges is confusing to voters, expensive, and biased against voters of color. PURPOSE This bill establishes a system of nonpartisan judicial elections for all state appellate justices and judges. RULEMAKING AUTHORITY Sec. 291.005 of the Election Code, in Section 2 of this bill, authorizes the secretary of state to prescribe additional procedures necessary for the orderly and proper administration of nonpartisan judicial elections. SECTION BY SECTION ANALYSIS SECTION 1 amends Election Code ' 41.002. Current Sec. 41.002 becomes Sec. 41.002(a) and is amended to include nonpartisan judicial elections in the elections to be held at the general election. New Subsec. (b) provides that runoffs in nonpartisan judicial elections shall be held on the first Tuesday following the first Monday in December. SECTION 2 adds new Title 17, Nonpartisan Judicial Elections, to the Election Code. Chapter 291. Nonpartisan Judicial Election. Subchapter A. Nonpartisan Election of Judges Generally Sec. 291.001. Applicability of chapter. Sec. 291.002 prohibits nomination for a nonpartisan judicial office by party. Sec. 291.003 requires that a candidate for a nonpartisan judicial office must receive at least 50% of the vote and be the top votegetter or face a runoff in order to win election to a nonpartisan judicial office. Sec. 291.004 provides that all other titles of the Election Code, to the extent they are not inconsistent with this title, apply to nonpartisan judicial elections. Sec. 291.005 authorizes the secretary of state to prescribe additional procedures necessary for the orderly and proper administration of nonpartisan judicial elections. Subchapter B. Application for Place on Ballot Sec. 291.021, Application Required. Subsec. (a) requires candidates to make application to be entitled to a place on a nonpartisan judicial election ballot. Subsec. (b) provides that an application must be accompanied by a filing fee or a petition prescribed by Sec. 141.062. Subsec. (c) provides that an application is filed at the time of its receipt by the appropriate authority. Subsec. (d) provides that an application accompanied by a filing fee must also be accompanied by a petition signed by at least 250 registered voters, or at least 500 if the application is not accompanied by the filing fee. Signatures may not be obtained on the grounds of a county courthouse or annex. Sec. 291.022 provides that an application for a place on a nonpartisan judicial ballot must be filed with the secretary of state. Sec. 291.023 provides that an application to be placed on the nonpartisan judicial election ballot must be filed no later than 5 p.m. of the 70th day before the election, except as provided by Secs. 291.053 and 202.008, and no earlier than the 30th day before the regular filing deadline. Sec. 291.024 requires that the minimum number of signatures required on a petition authorized by Sec. 291.021 is the lesser of 500 or 2% of the total vote received in the district by all the candidates for governor in the most recent election. Sec. 291.025 sets out the required statement that must appear at the top of each page of a petition to be filed under Sec. 291.021. Sec. 291.026, Certification of Names for Placement on Nonpartisan Judicial Election Ballot. Subsec. (a) provides for the certification for placement on the nonpartisan judicial election ballot by the secretary of state. Subsec. (b) requires the secretary of state to provide the certification to the county election official in which the candidate's name is to appear on the ballot not later than the 55th day before the election. Subsec. (c) provides for circumstances under which a candidate's name may not be certified. Subchapter C. Withdrawal, Death and Ineligibility of Candidate Sec. 291.051 provides that this Subchapter supersedes Subchapter A to the extent of any conflict. Sec. 291.052 requires that a withdrawal request by or for a candidate must be filed with the authority for whom the application is required to be filed on or before the 65th day before election day. Sec. 291.053 provides for the extension for filing an application for a place on the nonpartisan judicial election ballot if a candidate who has made application dies after the fifth day before the regular filing deadline and on or before the 65th day before the election, holds the office for which application was made and withdraws or is declared ineligible on or after the date of the regular filing deadline and before the 65th day before the election, or withdraws or is declared ineligible on or after the date of the regular filing deadline and before the 65th day before the election and no other candidate has made a qualified application. Applications for an office sought by a withdrawn, deceased or ineligible candidate must be filed not later than 5 p.m. of the 60th day before the election. If the deadline is extended, notice shall be given in the same manner as provided for a primary election. Sec. 291.054 requires a candidate's name to be omitted from the nonpartisan judicial election ballot if the candidate dies, withdraws or is declared ineligible on or before the 65th day before the election. Sec. 291.055 provides that if a candidate for the nonpartisan judicial election dies or is declared ineligible after the 65th day before the election, the candidate's name shall be placed on the ballot. Sec. 291.056, Withdrawal from Runoff. Subsec. (a) prohibits a candidate from withdrawing from the runoff nonpartisan judicial election after 5 p.m. on the 10th day after the date of the general nonpartisan judicial election. Subsec. (b) provides that a withdrawal request for the runoff must be filed with the authority with whom the candidate's application for a place on the ballot is filed. Subsec. (c) provides that if a runoff candidate withdraws, the remaining candidate is the winner and no runoff election is necessary. Sec. 291.057 provides that if a runoff candidate dies or is declared ineligible before the runoff, the candidate's name shall be placed on the ballot. Subchapter D. Conduct of Election Sec. 291.071 requires that nonpartisan judicial offices and candidates shall be listed on the general election ballot following partisan offices under the heading "Election for Nonpartisan Judicial Offices." Sec. 291.072 requires the nonpartisan judicial election to be conducted, canvassed, tabulated and reported like partisan elections except as provided by this code. Sec. 291.073 requires the secretary of state to certify candidates for the nonpartisan judicial runoff election and to deliver the certification to the authority responsible for having the ballot prepared. Sec. 291.074 requires the nonpartisan judicial election to be conducted, canvassed, tabulated and reported like a nonpartisan judicial election. SECTION 3 amends Election Code ' 1.005(9) and adds new Subdivisions (25) and (26). Subdivision (9) is amended to provide that the term "independent candidate" does not include a nonpartisan judicial candidate. New Subdivision (25) defines "nonpartisan judicial election." New Subdivision (26) defines "nonpartisan judicial candidate." SECTION 4 amends Election Code ' 52.092. Subsec. (a), listing the ballot order of offices by unit of government, is amended to add "including the nonpartisan judicial election." Subsec. (b), the ordered list of federal offices, was not changed. Subsec. (c) deletes state treasurer, chief justice of the supreme court, supreme court justice, presiding judge of the court of criminal appeals and judge of the court of criminal appeals from the ordered list of state offices. Makes conforming numbering changes. Subsec. (d) deletes chief justice of the court of appeals and justice of the court of appeals from the ordered list of district offices. Makes conforming numbering changes. Subsec. (e), the ordered list of county offices, was not changed. Subsec. (f), the ordered list of precinct offices, was not changed. New Subsec. (g) lists the ballot order for nonpartisan judicial offices. Current Subsec. (g) is relettered as Subsec. (h). Subsecs. (i) and (j) are unchanged. SECTION 5 amends Election Code ' 67.003 to require that the local canvass for the nonpartisan judicial election be conducted not later than the third day after election day. SECTION 6 amends Election Code ' 67.012(a) to require that the state canvass for the nonpartisan judicial election be conducted not later than the 14th day after election day. SECTION 7 amends Election Code ' 145.003(b) to include nonpartisan judicial candidates as candidates who may be declared ineligible before the 30th day preceding election day. The authority with whom the candidate's application for a place on the ballot or declaration of candidacy must be filed is the authority who must declare the candidate ineligible. SECTION 8 amends Election Code ' 145.005(a), requiring votes cast for deceased or ineligible candidates to be counted, by striking "under this chapter" in order to include nonpartisan judicial candidates. SECTION 9 amends Election Code ' 146.021 to apply Chapter 146 to nonpartisan judicial elections. SECTION 10 amends Election Code '' 172.021(c) and (e). Subsec. (c) adds clarifying language to the rule that a mailed application to be placed on the ballot is considered filed when it is received. Subsec. (e) is amended to make conforming changes. SECTION 11 amends Election Code ' 202.002 and adds new Section 202.008. Sec. 202.002 adds clarifying language and includes nonpartisan judicial elections in this section dealing with vacancies filled at the general election. New language specifies that, if a vacancy occurs before the 65th day before the general election, an election at the general election to fill a vacancy for a nonpartisan judicial election shall be for a full fouryear term. If the vacancy occurs after the 65th day before a general election, the nonpartisan judicial office may not be held and an appointment to fill the vacancy continues in office until the next general election. New Sec. 202.008 provides that if a vacancy in a nonpartisan judicial office occurs on or before the 10th day before the regular filing deadline, an application for election to the next four-year term must be filed by the regular filing deadline. If a vacancy in a nonpartisan judicial office occurs after the 10th day before the regular filing deadline, an application for election to the next four-year term must be filed not later than 5 p.m. of the 15th day after the vacancy occurs or 5 p.m. of the 60th day before the election, whichever is earlier. SECTION 12 provides that justices of the supreme court and courts of appeal and judges of the court of criminal appeals in office on January 1, 1998, continue in office for the term to which elected. A vacancy does not exist in those office until the expiration of the term of the person who held office January 1, 1998, or until that person no longer holds office, whichever occurs first. SECTION 13. Effective date. Act subject to approval of constitutional amendment. SECTION 14. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The original bill provided for appointment of appellate justices and judges who would then run for reelection in uncontested retention elections. The original bill also provided for the appointment of district judges who would then run for their first full term in a nonpartisan election; in the largest counties, these elections would have been by commissioner precinct; for the next two terms, the district judge would stand for reelection in an uncontested retention election districtwide. Section 1 of the original bill added a new Subchapter E, Appointment and Retention of Certain Judicial Officers, to Chapter 22 of the Government Code; this does not appear in the substitute. Section 2 of the original bill added new Sections 24.0015, 24.0016, and 24.0017 to the Government Code, to provide for the election of certain district judges from commissioners precincts, to provide for an election and retention cycle, and to provide for the effect of the retention vote; this does not appear in the substitute. Section 3 of the original bill added new Government Code Sections 24.540-24.547 to create eight new district courts; this does not appear in the substitute. Section 4 of the original bill is Section 1 in the substitute. Section 5 of the original bill is Section 2 in the substitute and was amended to delete new Election Code Chapters 292 (Retention Election) and 293 (Voter Information Pamphlet). Election Code Sec. 291.003 in Section 5 of the original bill required the top votegetter to receive at least 30% of the vote to avoid a runoff; in Sec. 291.003 of the substitute, the top votegetter must receive at least 50% of the vote to avoid a runoff. Sec. 291.024 in Section 5 of the original provided for nonpartisan filing fees; this does not appear in the substitute. Sections 291.025-291.027 in Section 5 of the original were renumbered as Secs. 291.024-291.026 in Section 2 of the substitute. Section 6 of the original bill is Section 3 in the substitute. Section 7 of the original bill is Section 4 in the substitute. The substitute does not delete district judges, criminal district judges or family district judges from the ordered list of district offices in Election Code Sec. 52.092(d). The substitute does not include district judges, criminal district judges or family district judges in the ordered list of nonpartisan judicial offices in Election Code Sec. 52.092(g). Sec. 52.092(i) in the original bill does not appear in the substitute. Section 8 in the original bill is Section 5 in the substitute. Section 9 in the original bill is Section 6 in the substitute. Section 10 in the original bill, amending Election Code Sec. 141.001(a), does not appear in the substitute. Section 11 in the original bill is Section 7 in the substitute and removes "or declaration of candidacy" in Election Code Sec. 145.003(b)(2). Section 12 in the original bill is Section 8 in the substitute. Section 13 in the original bill is Section 9 in the substitute. Section 14 in the original bill is Section 10 in the substitute; the substitute makes conforming changes to this section and removes the change from 850,000 to one million. Section 15, amending Election Code Sec. 172.024(a) of the original bill, does not appear in the substitute. Section 16 of the original bill is Section 11 in the substitute. Section 17 of the original bill does not appear in the substitute. Section 18 of the original bill is Section 12 in the substitute and was changed to conform to the substitute. Section 19 of the original bill is Section 13 in the substitute and was changed to conform to the substitute. Section 20 of the original bill is Section 14 in the substitute.