By Thompson H.B. No. 1282
76R2762 MLS-D
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. APPLICATION. This subchapter does not apply to
1-11 the statutory probate court of Dallas County.
1-12 Sec. 54.603. APPOINTMENT. (a) After obtaining the approval
1-13 of the commissioners court, the judge of a statutory probate court
1-14 by order may appoint a person to act as probate master for the
1-15 statutory probate court.
1-16 (b) The commissioners court may authorize the appointment of
1-17 a probate master for each court or may authorize one or more
1-18 probate masters to share service with two or more courts, if more
1-19 than one statutory probate court exists in a county.
1-20 (c) If a probate master serves more than one court, the
1-21 probate master's appointment must be made with the unanimous
1-22 approval of all the judges under whom the probate master serves.
1-23 (d) A probate master must meet the qualifications to serve
1-24 as a judge of the court to which appointed.
2-1 (e) A probate master appointed under this subchapter may
2-2 serve as a master appointed under Section 574.0085, Health and
2-3 Safety Code.
2-4 Sec. 54.604. TERMINATION OF PROBATE MASTER. (a) A probate
2-5 master who serves a single court serves at the will of the judge of
2-6 that court.
2-7 (b) The employment of a probate master who serves more than
2-8 two courts may only be terminated by a majority vote of all the
2-9 judges of the courts that the probate master serves.
2-10 (c) The employment of a probate master who serves two courts
2-11 may be terminated by either of the judges of the courts that the
2-12 probate master serves.
2-13 (d) The appointment of the probate master terminates if:
2-14 (1) the appointing judge vacates the judge's office;
2-15 (2) the probate master becomes a candidate for
2-16 election to public office; or
2-17 (3) the commissioners court does not appropriate funds
2-18 in the county's budget to pay the salary of the probate master.
2-19 Sec. 54.605. COMPENSATION. (a) A probate master is
2-20 entitled to the compensation set by the appointing judge and
2-21 approved by the commissioners court. The salary of the probate
2-22 master may not exceed the salary of the appointing judge.
2-23 (b) The compensation of the probate master shall be paid by
2-24 the county from the county general fund in the same manner that the
2-25 appointing judge's salary is paid.
2-26 Sec. 54.606. OATH. A probate master must take the
2-27 constitutional oath of office required of appointed officers of
3-1 this state.
3-2 Sec. 54.607. MAGISTRATE. A probate master appointed under
3-3 this subchapter is a magistrate.
3-4 Sec. 54.608. CASES THAT MAY BE REFERRED. (a) Except as
3-5 provided by this section, a judge of a court may refer to a probate
3-6 master any aspect of a suit over which the probate court has
3-7 jurisdiction, including any matter ancillary to the suit.
3-8 (b) Unless a party files a written objection to the probate
3-9 master hearing a trial on the merits, the judge may refer the trial
3-10 to the probate master. A trial on the merits is any final
3-11 adjudication from which an appeal may be taken to a court of
3-12 appeals.
3-13 (c) A party must file an objection to a probate master
3-14 hearing a trial on the merits not later than the 10th day after the
3-15 date the party receives notice that the probate master will hear
3-16 the trial. If an objection is filed, the referring court shall
3-17 hear the trial on the merits.
3-18 (d) Unless all parties consent in writing to a probate
3-19 master hearing a contested trial on the merits of a lawsuit in
3-20 which the referring court's jurisdiction is concurrent with the
3-21 district court in the county of the referring court, the matter
3-22 must be tried by the referring court. In a lawsuit in which the
3-23 referring court's jurisdiction is concurrent with the district
3-24 court, any order rendered under a probate master's report is void
3-25 if the parties do not consent in writing to the probate master
3-26 conducting the trial on the merits.
3-27 (e) If a jury trial is demanded and a jury fee paid in a
4-1 trial on the merits, the probate master shall refer any matters
4-2 requiring a jury back to the referring court for a trial before the
4-3 referring court and jury.
4-4 Sec. 54.609. ORDER OF REFERRAL. (a) In referring a case to
4-5 a probate master, the judge of the referring court shall render:
4-6 (1) an individual order of referral; or
4-7 (2) a general order of referral specifying the class
4-8 and type of cases to be heard by the probate master.
4-9 (b) The order of referral may limit the power or duties of a
4-10 probate master.
4-11 Sec. 54.610. POWERS OF PROBATE MASTER. Except as limited by
4-12 an order of referral, a probate master may:
4-13 (1) conduct a hearing;
4-14 (2) hear evidence;
4-15 (3) compel production of relevant evidence;
4-16 (4) rule on the admissibility of evidence;
4-17 (5) issue a summons for the appearance of witnesses;
4-18 (6) examine a witness;
4-19 (7) swear a witness for a hearing;
4-20 (8) make findings of fact on evidence;
4-21 (9) formulate conclusions of law;
4-22 (10) recommend an order to be rendered in a case;
4-23 (11) regulate all proceedings in a hearing before the
4-24 probate master; and
4-25 (12) take action as necessary and proper for the
4-26 efficient performance of the probate master's duties.
4-27 Sec. 54.611. ATTENDANCE OF BAILIFF. A bailiff shall attend
5-1 a hearing conducted by a probate master if directed to attend by
5-2 the referring court.
5-3 Sec. 54.612. COURT REPORTER. (a) A court reporter is not
5-4 required during a hearing held by a probate master appointed under
5-5 this subchapter unless required by other law.
5-6 (b) A party, the probate master, or the referring court may
5-7 provide for a reporter during the hearing.
5-8 (c) The record of a hearing before a probate master may be
5-9 preserved by any means approved by the referring court.
5-10 (d) The referring court or probate master may impose on a
5-11 party the expense of preserving the record as a court cost.
5-12 Sec. 54.613. WITNESS. (a) A witness appearing before a
5-13 probate master is subject to the penalties for perjury provided by
5-14 law.
5-15 (b) A referring court may fine or imprison a witness who:
5-16 (1) fails to appear before a probate master after
5-17 being summoned; or
5-18 (2) improperly refuses to answer a question if the
5-19 refusal has been certified to the court by the probate master.
5-20 Sec. 54.614. REPORT. (a) The probate master's report may
5-21 contain the probate master's findings, conclusions, or
5-22 recommendations. The probate master shall prepare a written report
5-23 in the form directed by the referring court. The form may be a
5-24 notation on the referring court's docket sheet.
5-25 (b) After a hearing, the probate master shall provide the
5-26 parties participating in the hearing notice of the substance of the
5-27 probate master's report.
6-1 (c) Notice may be given to the parties:
6-2 (1) in open court, by an oral statement or a copy of
6-3 the probate master's written report; or
6-4 (2) by certified mail, return receipt requested.
6-5 (d) The probate master shall certify the date of mailing of
6-6 notice by certified mail. Notice is considered given on the third
6-7 day after the date of mailing.
6-8 (e) After a hearing conducted by a probate master, the
6-9 probate master shall send the probate master's signed and dated
6-10 report and all other papers relating to the case to the referring
6-11 court.
6-12 Sec. 54.615. NOTICE OF RIGHT TO APPEAL. (a) A probate
6-13 master shall give all parties notice of the right of appeal to the
6-14 judge of the referring court.
6-15 (b) The notice may be given:
6-16 (1) by oral statement in open court;
6-17 (2) by posting inside or outside the courtroom of the
6-18 referring court; or
6-19 (3) as otherwise directed by the referring court.
6-20 Sec. 54.616. ORDER OF COURT. (a) Pending appeal of the
6-21 probate master's report to the referring court, the decisions and
6-22 recommendations of the probate master's report have the force and
6-23 effect, and are enforceable as, an order of the referring court,
6-24 except for orders providing for incarceration or for the
6-25 appointment of a receiver.
6-26 (b) If an appeal to the referring court is not filed or the
6-27 right to an appeal to the referring court is waived, the findings
7-1 and recommendations of the probate master become the order of the
7-2 referring court at the time the judge of the referring court signs
7-3 an order conforming to the probate master's report.
7-4 Sec. 54.617. JUDICIAL ACTION ON A MASTER'S REPORT. Unless a
7-5 party files a written notice of appeal, the referring court may:
7-6 (1) adopt, modify, or reject the probate master's
7-7 report;
7-8 (2) hear further evidence; or
7-9 (3) recommit the matter to the probate master for
7-10 further proceedings.
7-11 Sec. 54.618. APPEAL TO REFERRING COURT. (a) A party may
7-12 appeal a probate master's report by filing notice of appeal not
7-13 later than the third day after the date the party receives notice
7-14 of the substance of the probate master's report as provided by
7-15 Section 54.614.
7-16 (b) An appeal to the referring court must be made in writing
7-17 and specify the findings and conclusions of the probate master to
7-18 which the party objects. The appeal is limited to the findings and
7-19 conclusions specified in the written appeal.
7-20 (c) The parties may present witnesses on appeal to the
7-21 referring court as in a hearing de novo on the issues raised in the
7-22 appeal.
7-23 (d) Notice of an appeal to the referring court must be given
7-24 to the opposing attorney in the manner provided by Rule 21a, Texas
7-25 Rules of Civil Procedure.
7-26 (e) If an appeal to the referring court is filed by a party,
7-27 any other party may file an appeal to the referring court not later
8-1 than the seventh day after the date of filing of the initial
8-2 appeal.
8-3 (f) The referring court, after notice to the parties, shall
8-4 hold a hearing on all appeals not later than the 30th day after the
8-5 date on which the initial appeal was filed with the referring
8-6 court, unless all of the parties agree to a later date.
8-7 (g) Before the start of a hearing conducted by a probate
8-8 master, the parties may waive the right of appeal to the referring
8-9 court. The waiver may be in writing or on the record.
8-10 Sec. 54.619. APPELLATE REVIEW. (a) Failure to appeal to
8-11 the referring court, by waiver or otherwise, the approval by the
8-12 referring court of a probate master's report does not deprive a
8-13 party of the right to appeal to or request other relief from a
8-14 court of appeals or the supreme court.
8-15 (b) The date the judge of a referring court signs an order
8-16 or judgment is the controlling date for the purposes of appeal to
8-17 or request for other relief from a court of appeals or the supreme
8-18 court.
8-19 Sec. 54.620. IMMUNITY. A probate master appointed under
8-20 this subchapter has the judicial immunity of a probate judge. All
8-21 existing immunity granted a probate master by law, express or
8-22 implied, continues in full force and effect.
8-23 SECTION 2. Article 2.09, Code of Criminal Procedure, is
8-24 amended to read as follows:
8-25 Art. 2.09. WHO ARE MAGISTRATES. Each of the following
8-26 officers is a magistrate within the meaning of this Code: The
8-27 justices of the Supreme Court, the judges of the Court of Criminal
9-1 Appeals, the justices of the Courts of Appeals, the judges of the
9-2 District Court, the magistrates appointed by the judges of the
9-3 district courts of Bexar County, Dallas County, Tarrant County, or
9-4 Travis County that give preference to criminal cases, the criminal
9-5 law hearing officers for Harris County appointed under Subchapter
9-6 L, Chapter 54, Government Code, the magistrates appointed by the
9-7 judges of the district courts of Lubbock County or Webb County, the
9-8 magistrates appointed by the judges of the criminal district courts
9-9 of Dallas County or Tarrant County, the masters appointed by the
9-10 judges of the district courts and the county courts at law that
9-11 give preference to criminal cases in Jefferson County, the county
9-12 judges, the judges of the county courts at law, judges of the
9-13 county criminal courts, the judges of statutory probate courts, the
9-14 masters appointed by the judges of the statutory probate courts
9-15 under Subchapter G, Chapter 54, Government Code, the justices of
9-16 the peace, the mayors and recorders and the judges of the municipal
9-17 courts of incorporated cities or towns.
9-18 SECTION 3. This Act takes effect September 1, 1999.
9-19 SECTION 4. The importance of this legislation and the
9-20 crowded condition of the calendars in both houses create an
9-21 emergency and an imperative public necessity that the
9-22 constitutional rule requiring bills to be read on three several
9-23 days in each house be suspended, and this rule is hereby suspended.