PMWJ C.S.S.B. 402 75(R) BILL ANALYSIS JUDICIAL AFFAIRS S.B. 402 By: Harris (Goodman) C.S.S.B. 402 By: Solis May 21, 1997 Committee Report (Substituted) BACKGROUND Current law does not permit probate court masters to be appointed except for probable cause masters in mental health cases. The statutory probate court judges would like to be able to appoint masters, subject to approval of the county commissioners, to conduct hearings like probable cause hearings, uncontested matters, or other hearings while the judge is in a jury trial. PURPOSE C.S.S.B. 402 provides for the appointment of probate court masters. RULEMAKING AUTHORITY The judge of a statutory probate court is authorized to appoint a probate master in Section 54.602, Government Code, in Section 1 of this bill. The judge of a statutory probate court is authorized to make general and individual orders of referral and to limit the powers of a master in Section 54.608, Government Code, in Section 1 of this bill. SECTION BY SECTION ANALYSIS SECTION 1 adds a new Subchapter G to Chapter 54 of the Government Code as follows: SUBCHAPTER G. PROBATE MASTERS Sec. 54.601. DEFINITION. Defines "statutory probate court." Sec. 54.602. APPOINTMENT. Subsec. (a) authorizes a judge of a statutory probate court, by order, to appoint a person to act as probate master, after obtaining approval of the commissioner's court. Subsec. (b) provides that the commissioners court may authorize the appointment of one or more masters for each court or may authorize one or more masters to share service with two or more courts. Subsec. (c) requires unanimous approval of all the probate judges if the master serves more than one court. Subsec. (d) requires a probate master to meet the qualifications to serve as a judge of the court to which appointed. Subsec. (e) authorizes a master to serve as a master appointed under Health and Safety Code Sec. 574.0085 (court-ordered mental health services). Sec. 54.603. TERMINATION OF PROBATE MASTER. Provides that a probate master serves at the will of the probate judge. Masters who serve more than one court may be terminated by a majority vote. Masters who serve two courts may be terminated by either probate judge. The appointment of a probate master also terminates if the appointing judge vacates office or the master becomes a candidate for election to a public office or the commissioners court does not appropriate money for the master's salary. Sec. 54.604. COMPENSATION. Provides that the probate master is entitled to the compensation set by the appointing judge and approved by the commissioner's court. Prohibits the salary of the probate master from exceeding the appointing judge's salary. Requires the compensation of the probate master to be paid by the county from the county general fund from which the appointing judge's salary is paid. Sec. 54.605 requires the probate master to take the constitutional oath. Sec. 54.606 provides that a probate master is a magistrate. Sec. 54.607. CASES THAT MAY BE REFERRED. Subsec. (a) authorizes a probate judge to refer any matter to the master except as provided in this section. Subsec. (b) authorizes the judge to refer the trial on the merits to the master unless a party files a written objection. Subsec. (c) requires a party to file a written objection to a master hearing a trial on the merits not later than the 10th day after the party receives notice. Subsec. (d) provides that the probate court must hear a trial on the merits of a contested lawsuit in which the court's jurisdiction is concurrent with the district court unless all parties consent in writing to a probate master hearing the trial. Unless the parties consent in writing, any order rendered under a master's report in a lawsuit is void. Subsec. (e) requires the master to refer any matters requiring a jury back to the referring court. Sec. 54.608 authorizes the probate judge to make individual and general orders of referral and authorizes the probate judge to limit the power or duties of the master. Sec. 54.609 sets out the powers of a probate master except as limited by a referral order. Sec. 54.610 requires a bailiff to attend a hearing conducted by a master if directed to attend by the referring court. Sec. 54.611 provides that a party, the master, or the referring court may provide for a court reporter, but otherwise, a court reporter is not required during a hearing held by a master unless required by other law. The record of a hearing before a master may be preserved by any means approved by the referring court. The referring court or the master may impose the expense of preserving the record as a court cost on a party. Sec. 54.612. WITNESS. Subsec. (a) provides that a witness appearing before a master is subject to perjury. Subsec. (b) authorizes a referring court to impose a fine or to imprison a witness who fails to appear before a master after being summoned or who improperly refuses to answer a question. Sec. 54.613. REPORT. Subsec. (a) provides that the master shall prepare a written report in a form directed by the referring court which may be a notation on the docket sheet or may include findings, conclusions or recommendations. Subsec. (b) requires the master to give the parties notice of the substance of the master's report. Subsec. (c) allows notice to be given orally in open court or by providing a copy of a written report in open court or by certified mail. Subsec. (d) requires the master to certify the date of mailing of a notice by certified mail. Notice shall be considered given on the third day after mailing. Subsec. (e) requires a master to send a signed and dated report and all other papers to the referring court after a hearing. Sec. 54.614 requires a master to give all parties notice of the right to appeal to the referring court. Notice may be given orally in open court, by a posting or as directed by the referring court. Sec. 54.615 provides that, except for orders providing for incarceration or the appointment of a receiver, a master's decisions and recommendations have the same force and effect as a court order pending appeal of the master's report to the referring court. If an appeal is not filed or the right to appeal is waived, the master's recommendations and findings become the order of the court at the time the judge signs an order conforming to the master's report. Sec. 54.616 authorizes the referring court to adopt, modify, or reject a master's report unless a party files a written notice of appeal. The referring court may also hear further evidence or recommit the matter to the master for further proceedings. Sec. 54.617. APPEAL TO REFERRING COURT. Subsec. (a) requires a party desiring to appeal a master's report to file notice of appeal within three days of receiving notice of the substance of the master's report. Subsec. (b) provides that appeals must be in writing specifying the party's objections and that the appeal is limited to the findings and conclusions specified. Subsec. (c) provides that the parties may present witnesses on appeal to the referring court. Subsec. (d) provides that notice of an appeal must be given in the manner provided by Texas Rule of Civil Procedure 21a. Subsec. (e) allows other parties to file an appeal within 7 days after the initial appeakl is filed. Subsec. (f) requires the referring court to hold a hearing on all appeals within 30 days of the filing of the initial appeal unless all the parties agree to a later date. Subsec. (g) allows the parties to waive a right to appeal to the referring court before the start of a hearing conducted by a master. Sec. 54.618 provides that a party may appeal to or request other relief from a court of appeals or the supreme court even if the party failed to appeal to the referring court or waived the right to appeal to the referring court. The date the judge of the referring court signs an order or judgment is the controlling date for the purposes of appeal to a higher court. Sec. 54.619 provides that a probate master has the same judicial immunity as an appointing judge. Sec. 54.620 provides that this subchapter does not apply to Harris or Dallas counties. SECTION 2 amends Article 2.09 of the Code of Criminal Procedure to add probate masters to the list of persons who are magistrates. SECTION 3. Effective date. SECTION 4. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE New Sec. 54.601 in Section 1 of the bill is the same in both versions. The original version of Sec. 54.602 in Section 1 of the bill did not contain Subsecs. (b), (c) or (e). Subsec. (b) in the original version is Subsec. (d) in the substitute. Sec. 54.603 in Section 1 of the original version was titled Duration of Appointment; it is titled Termination of Probate Master in the substitute. Subsec. (a) in the original version provided for a term of appointment not to exceed four years; this was changed in the substitute to provide that a master is an at-will employee. Secs. 54.604 and 54.605 in Section 1 of the bill is the same in both versions. Sec. 54.607 in Section 1 of the original version is Sec. 54.606 in the substitute. Sec. 54.607 in Section 1 of the substitute provides for cases that may be referred to the probate master; this was not in the original version, but does incorporate the principles of Sec. 54.610 in the original version. Sec. 54.608 in Section 1 of the substitute, providing for referral orders, was not in the original version. Sec. 54.606 in Section 1 of the original version, relating to the powers of the master, is Sec. 54.609 in the substitute and was changed to provide a new heading and to provide a more specific and enumerated list of powers. Sec. 54.610 in Section 1 of the substitute, attendance of the bailiff, was not in the original. Sec. 54.611 in Section 1 of the substitute, court reporter, was not in the original version. Sec. 54.612 in Section 1 of the substitute, concerning witnesses, was not in the original version. Sec. 54.613 in Section 1 of the substitute, the report of the master, was not in the original version. Sec. 54.614 in Section 1 of the substitute, notice of the right to appeal, was not in the original version. Sec. 54.615 in Section 1 of the substitute, order of court, was not in the original version. Sec. 54.617 in Section 1 of the substitute, appeal to referring court, was not in the original version. Sec. 54.618 in Section 1 of the substitute, appellate review, was not in the original version. Sec. 54.619 in Section 1 of the substitute was Sec. 54.609 in the original version. Sec. 54.620 in Section 1 of the substitute, excluding Dallas and Harris counties from this act, was not in the original version. Section 2 of the substitute was not in the original version. Section 3 of the substitute was Section 2 in the original version. Section 4 of the substitute was Section 3 in the original version.