HBA-RBT S.B. 294 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 294 By: Harris Judicial Affairs 3/23/1999 Engrossed BACKGROUND AND PURPOSE Currently, Texas courts do not have probate masters. Both criminal and family courts have satisfied the need to conduct hearings while a judge is in a jury trial by appointing magistrates and masters. S.B. 294 creates the office of probate master for the statutory probate court, and provides for its administration, including procedures for the appointment, termination, and administration of the role of a probate master, to increase the efficiency of operation for probate courts. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 54, Government Code, by adding Subchapter G, as follows: SUBCHAPTER G. PROBATE MASTERS Sec. 54.601. DEFINITION. Defines "statutory probate court". Sec. 54.602. APPLICATION. Provides that this subchapter does not apply to the statutory probate courts of Dallas County. Sec. 54.603. APPOINTMENT. Authorizes the statutory probate court judge to appoint a probate master for the statutory probate court with the approval of the commissioners court. Authorizes the commissioners court to determine the number of and authorize the appointment of probate masters. Provides that the probate master's appointment must have the unanimous approval of all the judges under whom the probate master serves, if that probate master serves more than one court. Provides that the probate master must meet certain qualifications. Authorizes a probate master appointed under this subchapter to serve as a master appointed under Section 574.0085 (Masters), Health and Safety Code. Sec. 54.604. TERMINATION OF PROBATE MASTER. Provides that a probate master serving a single court serves at the will of that court's judge. Provides that a probate master serving more than two courts can only be terminated by a majority of the judges of all the courts the probate master serves. Authorizes either of the judges, if a probate master serves two courts, to terminate that probate master's employment. Sets forth conditions of a probate master appointment termination. Sec. 54.605. COMPENSATION. Entitles a probate master to compensation as determined by the appointing judge and the commissioners court. Prohibits a probate master's salary from exceeding that of an appointing judge. Requires the probate master to be paid by the county from the county general fund in the same manner that the appointing judge's salary is paid. Sec. 54.606. OATH. Provides that a probate master must take the required constitutional oath of office. Sec. 54.607. MAGISTRATE. Provides that a probate master appointed under this subchapter is a magistrate. Sec. 54.608. CASES THAT MAY BE REFERRED. Authorizes a judge to refer to a probate master any aspect of a suit, including any matter ancillary to the suit. Authorizes the judge to refer a trial to a probate master, unless a party files a written objection to this action. Describes a trial on the merits. Provides that a party must file an objection regarding a probate master hearing a trial by the10th day after notification. Requires the referring court to hear the trial on the merits if an objection to the probate master is filed. Provides that a matter must be tried by the referring court, unless all parties provide written consent to a probate master hearing a contested trial. Provides that when there is concurrent jurisdiction between a referring and a district court, any order made by a probate master is void if the parties do not consent in writing to the probate master's authority. Requires the probate master to refer any matters requiring a jury back to the referring court if a jury trial is demanded and a jury fee is paid. Sec. 54.609. ORDER OF REFERRAL. Requires a judge to render an individual order of referral or a general order of referral specifying the class and type of cases to be heard by the probate master when referring a case to a probate master. Authorizes the judge of the referring court to limit the power or duties of a probate master. Sec. 54.610. POWERS OF PROBATE MASTER. Sets forth the actions a probate master is authorized to take. Sec. 54.611. ATTENDANCE OF BAILIFF. Requires a bailiff to attend a hearing conducted by a probate master if directed to attend by the referring court. Sec. 54.612. COURT REPORTER. Provides that a court reporter is not required during a probate master hearing unless required by other law. Authorizes the preservation of hearing records through a court reporter or any other means approved by the referring court. Authorizes the referring court or the probate master to impose on a party as a court cost the expense of preserving the record. Sec. 54.613. WITNESS. Provides that a witness who appears before a probate master is subject to the penalties for perjury provided by law. Authorizes a referring court to impose penalties on a witness who fails to appear or improperly refuses to answer a question if the refusal has been certified to the court by the probate master. Sec. 54.614. REPORT. Authorizes a probate master to include findings, conclusions, or recommendations in the report. Requires a probate master to prepare a written report in the form directed by the referring court. Requires the probate master to provide notice of the substance of the report to the parties participating in the hearing and sets forth the format and mailing requirements of the notice. Requires the probate master to send the probate master's signed and dated report and all other papers relating to a case to the referring court after the hearing. Sec. 54.615. NOTICE OF RIGHT TO APPEAL. Requires a probate master to give all parties notice of the right of appeal to the judge of the referring court. Sets forth the format of the notice. Sec. 54.616. ORDER OF COURT. Provides that the decisions and recommendations of a probate master report have the force and effect, and is as enforceable, as an order of the referring court, except for orders for incarceration or appointment of a receiver. Provides that if there is no appeal to the referring court, the probate master's report becomes the order of the referring court. Sec. 54.617. JUDICIAL ACTION ON A MASTER'S REPORT. Authorizes the referring court to adopt, modify, or reject the probate master's report, hear further evidence, or recommit the matter to the probate master for further proceedings, unless a party files a written notice of appeal. Sec. 54.618. APPEAL TO REFERRING COURT. Authorizes a party to appeal a probate master report and sets forth the required deadline for filing such an appeal. Requires an appeal to be made in writing and specify the probate master's conclusions to which the party objects. Authorizes the parties to present witnesses on appeal to the referring court as in a hearing de novo on the issues raised in the appeal. Requires notice of an appeal to be given in the manner provided by Rule 21a, Texas Rules of Civil Procedure (Notice). Authorizes cross appeals and sets time limits. Requires the referring court to hold a hearing on all appeals by the 30th day after the initial appeal. Authorizes parties to waive the right of appeal before the start of a hearing before a probate master. Authorizes the waiver to be in writing or on the record. Sec. 54.619. APPELLATE REVIEW. Provides that failure to appeal to the referring court the approval by the referring court of a probate master's report does not deprive a party of the right to appeal to a court of appeals or the supreme court. Sets forth the controlling date for the purposes of appeal. Sec. 54.620. IMMUNITY. Provides that a probate master appointed under this subchapter has the judicial immunity of a probate judge. SECTION 2. Amends Article 2.09, Code of Criminal Procedure, to add a master appointed by the judges of the statutory probate courts to the list of officers who are magistrates. SECTION 3. Effective date: September 1, 1999. SECTION 4. Emergency clause.