75R15924 MWV-D                          

         By Harris                                              S.B. No. 402

         Substitute the following for S.B. No. 402:

         By Solis                                           C.S.S.B. No. 402

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the appointment of probate masters for certain courts.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Chapter 54, Government Code, is amended by adding

 1-5     Subchapter G to read as follows:

 1-6                       SUBCHAPTER G.  PROBATE MASTERS

 1-7           Sec. 54.601.  DEFINITION.  In this subchapter, "statutory

 1-8     probate court" has the meaning assigned by Section 3, Texas Probate

 1-9     Code.

1-10           Sec. 54.602.  APPOINTMENT.  (a)  After obtaining the approval

1-11     of the commissioners court, the judge of a statutory probate court

1-12     by order may appoint a person to act as probate master for the

1-13     statutory probate court.

1-14           (b)  The commissioners court may authorize the appointment of

1-15     a probate master for each court or may authorize one or more

1-16     probate masters to share service with two or more courts, if more

1-17     than one statutory probate court exists in a county.

1-18           (c)  If a probate master serves more than one court, the

1-19     probate master's appointment must be made with the unanimous

1-20     approval of all the judges under whom the probate master serves.

1-21           (d)  A probate master must meet the qualifications to serve

1-22     as a judge of the court to which appointed.

1-23           (e)  A probate master appointed under this subchapter may

1-24     serve as a master appointed under Section 574.0085, Health and

 2-1     Safety Code.

 2-2           Sec. 54.603.  TERMINATION OF PROBATE MASTER.  (a)  A probate

 2-3     master who serves a single court serves at the will of the judge of

 2-4     that court.

 2-5           (b)  The employment of a probate master who serves more than

 2-6     two courts may only be terminated by a majority vote of all the

 2-7     judges of the courts that the probate master serves.

 2-8           (c)  The employment of a probate master who serves two courts

 2-9     may be terminated by either of the judges of the courts that the

2-10     probate master serves.

2-11           (d)  The appointment of the probate master terminates if:

2-12                 (1)  the appointing judge vacates the judge's office;

2-13                 (2)  the probate master becomes a candidate for

2-14     election to public office; or

2-15                 (3)  the commissioners court does not appropriate funds

2-16     in the county's budget to pay the salary of the probate master.

2-17           Sec. 54.604.  COMPENSATION.  (a)  A probate master is

2-18     entitled to the compensation set by the appointing judge and

2-19     approved by the commissioners court.  The salary of the probate

2-20     master may not exceed the salary of the appointing judge.

2-21           (b)  The compensation of the probate master shall be paid by

2-22     the county from the county general fund in the same manner that the

2-23     appointing judge's salary is paid.

2-24           Sec. 54.605.  OATH.  A probate master must take the

2-25     constitutional oath of office required of appointed officers of

2-26     this state.

2-27           Sec. 54.606.  MAGISTRATE.  A probate master appointed under

 3-1     this subchapter is a magistrate.

 3-2           Sec. 54.607.  CASES THAT MAY BE REFERRED.  (a)  Except as

 3-3     provided by this section, a judge of a court may refer to a probate

 3-4     master any aspect of a suit over which the probate court has

 3-5     jurisdiction, including any matter ancillary to the suit.

 3-6           (b)  Unless a party files a written objection to the probate

 3-7     master hearing a trial on the merits, the judge may refer the trial

 3-8     to the probate master.  A trial on the merits is any final

 3-9     adjudication from which an appeal may be taken to a court of

3-10     appeals.

3-11           (c)  A party must file an objection to a probate master

3-12     hearing a trial on the merits not later than the 10th day after the

3-13     date the party receives notice that the probate master will hear

3-14     the trial.  If an objection is filed, the referring court shall

3-15     hear the trial on the merits.

3-16           (d)  Unless all parties consent in writing to a probate

3-17     master hearing a contested trial on the merits of a lawsuit in

3-18     which the referring court's jurisdiction is concurrent with the

3-19     district court in the county of the referring court, the matter

3-20     must be tried by the referring court.  In a lawsuit in which the

3-21     referring court's jurisdiction is concurrent with the district

3-22     court, any order rendered under a probate master's report is void

3-23     if the parties do not consent in writing to the probate master

3-24     conducting the trial on the merits.

3-25           (e)  If a jury trial is demanded and a jury fee paid in a

3-26     trial on the merits, the probate master shall refer any matters

3-27     requiring a jury back to the referring court for a trial before the

 4-1     referring court and jury.

 4-2           Sec. 54.608.  ORDER OF REFERRAL.  (a)  In referring a case to

 4-3     a probate master, the judge of the referring court shall render:

 4-4                 (1)  an individual order of referral; or

 4-5                 (2)  a general order of referral specifying the class

 4-6     and type of cases to be heard by the probate master.

 4-7           (b)  The order of referral may limit the power or duties of a

 4-8     probate master.

 4-9           Sec. 54.609.  POWERS OF PROBATE MASTER.  Except as limited by

4-10     an order of referral, a probate master may:

4-11                 (1)  conduct a hearing;

4-12                 (2)  hear evidence;

4-13                 (3)  compel production of relevant evidence;

4-14                 (4)  rule on the admissibility of evidence;

4-15                 (5)  issue a summons for the appearance of witnesses;

4-16                 (6)  examine a witness;

4-17                 (7)  swear a witness for a hearing;

4-18                 (8)  make findings of fact on evidence;

4-19                 (9)  formulate conclusions of law;

4-20                 (10)  recommend an order to be rendered in a case;

4-21                 (11)  regulate all proceedings in a hearing before the

4-22     probate master; and

4-23                 (12)  take action as necessary and proper for the

4-24     efficient performance of the probate master's duties.

4-25           Sec. 54.610.  ATTENDANCE OF BAILIFF.  A bailiff shall attend

4-26     a hearing conducted by a probate master if directed to attend by

4-27     the referring court.

 5-1           Sec. 54.611.  COURT REPORTER.  (a)  A court reporter is not

 5-2     required during a hearing held by a probate master appointed under

 5-3     this subchapter unless required by other law.

 5-4           (b)  A party, the probate master, or the referring court may

 5-5     provide for a reporter during the hearing.

 5-6           (c)  The record of a hearing before a probate master may be

 5-7     preserved by any means approved by the referring court.

 5-8           (d)  The referring court or probate master may impose on a

 5-9     party the expense of preserving the record as a court cost.

5-10           Sec. 54.612.  WITNESS.  (a)  A witness appearing before a

5-11     probate master is subject to the penalties for perjury provided by

5-12     law.

5-13           (b)  A referring court may fine or imprison a witness who:

5-14                 (1)  fails to appear before a probate master after

5-15     being summoned; or

5-16                 (2)  improperly refuses to answer a question if the

5-17     refusal has been certified to the court by the probate master.

5-18           Sec. 54.613.  REPORT.  (a)  The probate master's report may

5-19     contain the probate master's findings, conclusions, or

5-20     recommendations.  The probate master shall prepare a written report

5-21     in the form directed by the referring court.  The form may be a

5-22     notation on the referring court's docket sheet.

5-23           (b)  After a hearing, the probate master shall provide the

5-24     parties participating in the hearing notice of the substance of the

5-25     probate master's report.

5-26           (c)  Notice may be given to the parties:

5-27                 (1)  in open court, by an oral statement or a copy of

 6-1     the probate master's written report; or

 6-2                 (2)  by certified mail, return receipt requested.

 6-3           (d)  The probate master shall certify the date of mailing of

 6-4     notice by certified mail.  Notice is considered given on the third

 6-5     day after the date of mailing.

 6-6           (e)  After a hearing conducted by a probate master, the

 6-7     probate master shall send the probate master's signed and dated

 6-8     report and all other papers relating to the case to the referring

 6-9     court.

6-10           Sec. 54.614.  NOTICE OF RIGHT TO APPEAL.  (a)  A probate

6-11     master shall give all parties notice of the right of appeal to the

6-12     judge of the referring court.

6-13           (b)  The notice may be given:

6-14                 (1)  by oral statement in open court;

6-15                 (2)  by posting inside or outside the courtroom of the

6-16     referring court; or

6-17                 (3)  as otherwise directed by the referring court.

6-18           Sec. 54.615.  ORDER OF COURT.  (a)  Pending appeal of the

6-19     probate master's report to the referring court, the decisions and

6-20     recommendations of the probate master's report have the force and

6-21     effect, and are enforceable as, an order of the referring court,

6-22     except for orders providing for incarceration or for the

6-23     appointment of a receiver.

6-24           (b)  If an appeal to the referring court is not filed or the

6-25     right to an appeal to the referring court is waived, the findings

6-26     and recommendations of the probate master become the order of the

6-27     referring court at the time the judge of the referring court signs

 7-1     an order conforming to the probate master's report.

 7-2           Sec. 54.616.  JUDICIAL ACTION ON A MASTER'S REPORT.  Unless a

 7-3     party files a written notice of appeal, the referring court may:

 7-4                 (1)  adopt, modify, or reject the probate master's

 7-5     report;

 7-6                 (2)  hear further evidence; or

 7-7                 (3)  recommit the matter to the probate master for

 7-8     further proceedings.

 7-9           Sec. 54.617.  APPEAL TO REFERRING COURT.  (a)  A party may

7-10     appeal a probate master's report by filing notice of appeal not

7-11     later than the third day after the date the party receives notice

7-12     of the substance of the probate master's report as provided by

7-13     Section 54.613.

7-14           (b)  An appeal to the referring court must be made in writing

7-15     and specify the findings and conclusions of the probate master to

7-16     which the party objects.  The appeal is limited to the findings and

7-17     conclusions specified in the written appeal.

7-18           (c)  The parties may present witnesses on appeal to the

7-19     referring court as in a hearing de novo on the issues raised in the

7-20     appeal.

7-21           (d)  Notice of an appeal to the referring court must be given

7-22     to the opposing attorney in the manner provided by Rule 21a, Texas

7-23     Rules of Civil Procedure.

7-24           (e)  If an appeal to the referring court is filed by a party,

7-25     any other party may file an appeal to the referring court not later

7-26     than the seventh day after the date of filing of the initial

7-27     appeal.

 8-1           (f)  The referring court, after notice to the parties, shall

 8-2     hold a hearing on all appeals not later than the 30th day after the

 8-3     date on which the initial appeal was filed with the referring

 8-4     court, unless all of the parties agree to a later date.

 8-5           (g)  Before the start of a hearing conducted by a probate

 8-6     master, the parties may waive the right of appeal to the referring

 8-7     court.  The waiver may be in writing or on the record.

 8-8           Sec. 54.618.  APPELLATE REVIEW.  (a)  Failure to appeal to

 8-9     the referring court, by waiver or otherwise, the approval by the

8-10     referring court of a probate master's report does not deprive a

8-11     party of the right to appeal to or request other relief from a

8-12     court of appeals or the supreme court.

8-13           (b)  The date the judge of a referring court signs an order

8-14     or judgment is the controlling date for the purposes of appeal to

8-15     or request for other relief from a court of appeals or the supreme

8-16     court.

8-17           Sec. 54.619.  IMMUNITY.  A probate master appointed under

8-18     this subchapter has the judicial immunity of a probate judge.  All

8-19     existing immunity granted a probate master by law, express or

8-20     implied, continues in full force and effect.

8-21           Sec. 54.620.  APPLICATION OF SUBCHAPTER.  This subchapter

8-22     does not apply to the statutory probate courts of Dallas and Harris

8-23     counties.

8-24           SECTION 2.  Article 2.09, Code of Criminal Procedure, is

8-25     amended to read as follows:

8-26           Art. 2.09.  WHO ARE MAGISTRATES.  Each of the following

8-27     officers is a magistrate within the meaning of this Code:  The

 9-1     justices of the Supreme Court, the judges of the Court of Criminal

 9-2     Appeals, the justices of the Courts of Appeals, the judges of the

 9-3     District Court, the magistrates appointed by the judges of the

 9-4     district courts of Bexar County, Dallas County, Tarrant County, or

 9-5     Travis County that give preference to criminal cases, the criminal

 9-6     law hearing officers for Harris County appointed under Subchapter

 9-7     L, Chapter 54, Government Code, the magistrates appointed by the

 9-8     judges of the district courts of Lubbock County or Webb County, the

 9-9     magistrates appointed by the judges of the criminal district courts

9-10     of Dallas County or Tarrant County, the masters appointed by the

9-11     judges of the district courts and the county courts at law that

9-12     give preference to criminal cases in Jefferson County, the county

9-13     judges, the judges of the county courts at law, judges of the

9-14     county criminal courts, the judges of statutory probate courts, the

9-15     masters appointed by the judges of the statutory probate courts

9-16     under Subchapter G, Chapter 54, Government Code, the justices of

9-17     the peace, the mayors and recorders and the judges of the municipal

9-18     courts of incorporated cities or towns.

9-19           SECTION 3.  This Act takes effect September 1, 1997.

9-20           SECTION 4.  The importance of this legislation and the

9-21     crowded condition of the calendars in both houses create an

9-22     emergency and an imperative public necessity that the

9-23     constitutional rule requiring bills to be read on three several

9-24     days in each house be suspended, and this rule is hereby suspended.