1-1 By: Hartnett (Senate Sponsor - Wentworth) H.B. No. 3086
1-2 (In the Senate - Received from the House May 5, 1997;
1-3 May 6, 1997, read first time and referred to Committee on
1-4 Jurisprudence; May 15, 1997, reported favorably by the following
1-5 vote: Yeas 6, Nays 0; May 15, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to statutory probate court judges.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Sections 25.0022(i), (n), and (p), Government
1-11 Code, are amended to read as follows:
1-12 (i) Judges may be assigned in the manner provided by this
1-13 section to hold court in a statutory probate court, county court,
1-14 or any statutory court exercising probate jurisdiction when:
1-15 (1) the regular judge requests assignment of another
1-16 judge to the judge's court;
1-17 (2) the regular judge is absent, disabled, or
1-18 disqualified for any reason;
1-19 (3) the regular judge is present or is trying cases as
1-20 authorized by the constitution and laws of this state;
1-21 (4) the office of the regular judge is vacant; [or]
1-22 (5) the presiding judge of an administrative judicial
1-23 district requests the assignment of a statutory probate judge to
1-24 hear a probate matter in a county court or statutory county court;
1-25 or
1-26 (6) a motion to recuse the regular judge of a
1-27 statutory probate court has been filed.
1-28 (n) A judge assigned under this section has the
1-29 jurisdiction, powers, and duties given by Sections 5, [and] 5A,
1-30 606, and 607, Texas Probate Code, to the regular judge of the court
1-31 to which assigned.
1-32 (p) The daily compensation of a former or retired judge for
1-33 purposes of this section is set at an amount equal to the daily
1-34 compensation of a judge of a statutory probate court in the county
1-35 in which the former or retired judge is assigned. A former or
1-36 retired judge assigned to a county that does not have a statutory
1-37 probate court shall be paid an amount equal to the daily
1-38 compensation of a judge of a statutory probate court in the county
1-39 where the assigned judge was last elected.
1-40 SECTION 2. Subchapter B, Chapter 25, Government Code, is
1-41 amended by adding Section 25.00255 to read as follows:
1-42 Sec. 25.00255. RECUSAL OR DISQUALIFICATION OF JUDGE. (a) A
1-43 party in a hearing or trial in a statutory probate court may file
1-44 with the clerk of the court a motion stating grounds for the
1-45 recusal or disqualification of the judge. The grounds may include
1-46 any disability of the judge to preside over the case.
1-47 (b) A motion for the recusal or disqualification of a judge
1-48 must:
1-49 (1) be filed at least 10 days before the date of the
1-50 hearing or trial, except as provided by Subsection (c);
1-51 (2) be verified; and
1-52 (3) state with particularity the alleged grounds for
1-53 recusal or disqualification of the judge based on:
1-54 (A) personal knowledge that is supported by
1-55 admissible evidence; or
1-56 (B) specifically stated grounds for belief of
1-57 the allegations.
1-58 (c) A motion for recusal or disqualification may be filed at
1-59 the earliest practicable time before the beginning of the trial or
1-60 other hearing if a judge is assigned to a case 10 or fewer days
1-61 before the date set for a trial or hearing.
1-62 (d) A party filing a motion for recusal or disqualification
1-63 shall serve on all other parties or their counsel:
1-64 (1) copies of the motion; and
2-1 (2) notice that the movant expects the motion to be
2-2 presented to the judge three days after the filing of the motion
2-3 unless the judge orders otherwise.
2-4 (e) A party may file with the clerk of the court a statement
2-5 opposing or concurring with a motion for recusal or
2-6 disqualification at any time before the motion is heard.
2-7 (f) Before further proceedings in a case in which a motion
2-8 for the recusal or disqualification of a judge has been filed, the
2-9 judge shall:
2-10 (1) recuse himself; or
2-11 (2) request that the presiding judge of the statutory
2-12 probate courts assign a judge to hear the motion.
2-13 (g) A judge who recuses himself:
2-14 (1) shall enter an order of recusal and request that
2-15 the presiding judge of the statutory probate courts assign a judge
2-16 to hear the motion for recusal or disqualification; and
2-17 (2) may not take other action in the case except for
2-18 good cause stated in the order in which the action is taken.
2-19 (h) A judge who does not recuse himself:
2-20 (1) shall forward to the presiding judge of the
2-21 statutory probate courts, in either original form or certified
2-22 copy, an order of referral, the motion for recusal or
2-23 disqualification, and all opposing and concurring statements; and
2-24 (2) may not take other action in the case during the
2-25 time after the filing of the motion for recusal or disqualification
2-26 and before a hearing on the motion, except for good cause stated in
2-27 the order in which the action is taken.
2-28 (i) After receiving a request under Subsection (g) or (h),
2-29 the presiding judge of the statutory probate courts shall:
2-30 (1) immediately set a hearing before himself or a
2-31 judge designated by the presiding judge;
2-32 (2) cause notice of the hearing to be given to all
2-33 parties or their counsel to the case; and
2-34 (3) make other orders, including orders for interim or
2-35 ancillary relief, in the pending case.
2-36 (j) After a statutory probate court has rendered the final
2-37 judgment in a case, a party may appeal an order that denies a
2-38 motion for recusal or disqualification as an abuse of the court's
2-39 discretion. A party may not appeal an order that grants a motion
2-40 for recusal or disqualification.
2-41 (k) A party may file a motion for sanctions alleging that
2-42 another party in the case filed a motion for the recusal or
2-43 disqualification of a judge solely to delay the case and without
2-44 sufficient cause. The presiding judge or the judge assigned by the
2-45 presiding judge to hear the motion for recusal may approve a motion
2-46 for sanctions authorized by Rule 215(2)(b), Texas Rules of Civil
2-47 Procedure.
2-48 SECTION 3. (a) This Act takes effect September 1, 1997.
2-49 (b) Section 25.0022, Government Code, as amended by this
2-50 Act, applies only to an assignment of a statutory probate court
2-51 judge made on or after the effective date of this Act. An
2-52 assignment made before that date is governed by the law as it
2-53 existed on the date that assignment is made, and that law is
2-54 continued in effect for that purpose.
2-55 (c) Section 25.00255, Government Code, as added by this Act,
2-56 applies only to a motion for recusal or disqualification of a
2-57 statutory probate court judge filed on or after the effective date
2-58 of this Act. A motion for recusal or disqualification of a
2-59 statutory probate court judge filed before the effective date of
2-60 this Act is governed by the law as it existed on the date the
2-61 motion was filed, and that law is continued in effect for that
2-62 purpose.
2-63 SECTION 4. The importance of this legislation and the
2-64 crowded condition of the calendars in both houses create an
2-65 emergency and an imperative public necessity that the
2-66 constitutional rule requiring bills to be read on three several
2-67 days in each house be suspended, and this rule is hereby suspended.
2-68 * * * * *