1-1 By: Duncan S.B. No. 263
1-2 (In the Senate - Filed January 25, 1999; January 28, 1999,
1-3 read first time and referred to Committee on Jurisprudence;
1-4 April 15, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 3, Nays 0; April 15, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 263 By: Wentworth
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the assignment of certain retired or former judges as
1-11 visiting judges.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 74.003, Government Code, is amended by
1-14 amending Subsection (b) and adding Subsection (f) to read as
1-15 follows:
1-16 (b) The chief justice of the supreme court may assign a
1-17 qualified retired justice or judge of the supreme court, of the
1-18 court of criminal appeals, or of a court of appeals to a court of
1-19 appeals for active service regardless of whether a vacancy exists
1-20 in the court to which the justice is assigned. To be eligible for
1-21 assignment under this subsection, a retired justice or judge must:
1-22 (1) have served as an active justice or judge for at
1-23 least 96 months in a district, statutory probate, statutory county,
1-24 or appellate court, including at least 48 months in an appellate
1-25 court;
1-26 (2) not have been removed from office;
1-27 (3) certify under oath to the chief justice of the
1-28 supreme court, on a form prescribed by the chief justice, that the
1-29 justice or judge did not resign from office after having received
1-30 notice that formal proceedings by the State Commission on Judicial
1-31 Conduct had been instituted as provided in Section 33.022 and
1-32 before the final disposition of the proceedings;
1-33 (4) annually demonstrate that the justice or judge has
1-34 completed in the past calendar year the educational requirements
1-35 for active appellate court justices or judges; and
1-36 (5) certify to the chief justice of the supreme court
1-37 a willingness not to appear and plead as an attorney in any court
1-38 in this state for a period of two years.
1-39 (f) For the purposes of Subsection (b)(1), a month of
1-40 service is calculated as a calendar month or a portion of a
1-41 calendar month in which a justice or judge was authorized by
1-42 election or appointment to preside.
1-43 SECTION 2. Section 74.053, Government Code, is amended to
1-44 read as follows:
1-45 Sec. 74.053. OBJECTION TO [ASSIGNED] JUDGE ASSIGNED TO A
1-46 TRIAL COURT. (a) When a judge is assigned to a trial court under
1-47 this chapter the presiding judge shall, if it is reasonable and
1-48 practicable and if time permits, give notice of the assignment to
1-49 each attorney representing a party to the case that is to be heard
1-50 in whole or part by the assigned judge.
1-51 (b) If a party to a civil case files a timely objection to
1-52 the assignment, the judge shall not hear the case. Except as
1-53 provided by Subsection (d), each party to the case is only entitled
1-54 to one objection under this section for that case.
1-55 (c) An objection under this section must be filed not later
1-56 than the seventh day after the date that the party receives actual
1-57 notice of the assignment or, if seven days' notice is not given,
1-58 before the first hearing or trial, including pretrial hearings,
1-59 commences, whichever occurs earlier. The presiding judge may
1-60 extend the time to file an objection under this section on written
1-61 motion by a party who demonstrates good cause [over which the
1-62 assigned judge is to preside].
1-63 (d) An assigned [A former] judge or justice who was defeated
1-64 in the last primary or general election for which the judge or
2-1 justice was a candidate for the judicial office held by the judge
2-2 or justice [not a retired judge] may not sit in a case if either
2-3 party objects to the judge or justice.
2-4 (e) In this section, "party" includes multiple parties
2-5 aligned in a case as determined by the presiding judge.
2-6 (f) In addition to other methods of service permitted,
2-7 notice and objections under this section may be served by
2-8 electronic mail.
2-9 SECTION 3. Subsections (c) and (e), Section 74.055,
2-10 Government Code, are amended to read as follows:
2-11 (c) To be eligible to be named on the list, a retired or
2-12 former judge must:
2-13 (1) have served as an active [a] judge for at least 96
2-14 [48] months in a district, statutory probate, statutory county, or
2-15 appellate court;
2-16 (2) have developed substantial experience in the
2-17 judge's area of specialty;
2-18 (3) not have been removed from office;
2-19 (4) certify under oath to the presiding judge, on a
2-20 form prescribed by the state board of regional judges, that the
2-21 judge did not resign from office after having received notice that
2-22 formal proceedings by the State Commission on Judicial Conduct had
2-23 been instituted as provided in Section 33.022 and before the final
2-24 disposition of the proceedings;
2-25 (5) annually demonstrate that the judge has completed
2-26 in the past calendar year the educational requirements for active
2-27 district, statutory probate, and statutory county court judges; and
2-28 (6) certify to the presiding judge a willingness not
2-29 to appear and plead as an attorney in any court in this state for a
2-30 period of two years.
2-31 (e) For purposes of Subsection (c)(1), a month of service is
2-32 calculated as a calendar month or a portion of a calendar month in
2-33 which a judge was authorized by election or appointment [by the
2-34 governor] to preside.
2-35 SECTION 4. Section 75.551, Government Code, is amended to
2-36 read as follows:
2-37 Sec. 75.551. OBJECTION TO JUDGE OR JUSTICE ASSIGNED TO AN
2-38 APPELLATE COURT. (a) When a judge or justice is assigned to an
2-39 appellate court under this chapter or Chapter 74, the person who
2-40 assigns the judge or justice shall, if it is reasonable and
2-41 practicable and if time permits, give notice of the assignment to
2-42 each attorney representing a party to the case that is to be heard
2-43 in whole or part by the assigned judge or justice.
2-44 (b) A judge or justice assigned to an appellate court may
2-45 not hear a civil case if a party to the case files a timely
2-46 objection to the assignment of the judge or justice. Except as
2-47 provided by Subsection (d):
2-48 (1) each party to the case is entitled to only one
2-49 objection under this section for that case in the appellate court;
2-50 and
2-51 (2) a party to an appeal may not in the same case
2-52 object in an appellate court to the assignment of a judge or
2-53 justice under Section 74.053(b) and under this subsection.
2-54 (c) An objection under this section must be filed not later
2-55 than the seventh day after the date that the party receives actual
2-56 notice of the assignment or, if seven days' notice is not given,
2-57 before the case is submitted to the court, whichever occurs
2-58 earlier. The court may extend the time to file an objection under
2-59 this section on a showing of good cause [first hearing in which the
2-60 assigned judge or justice is assigned to sit].
2-61 (d) A [former] judge or justice who was defeated in the last
2-62 primary or general election for which the judge or justice was a
2-63 candidate for the judicial office held by the judge or justice [not
2-64 a retired judge or justice] may not sit in an appellate case if
2-65 either party objects to the judge or justice.
2-66 (e) In this section, "party" includes multiple parties
2-67 aligned in a case as determined by the appellate court.
2-68 (f) In addition to other methods of service permitted,
2-69 notice and objections under this section may be served by
3-1 electronic mail.
3-2 SECTION 5. Subsection (d), Section 74.055, Government Code,
3-3 is repealed.
3-4 SECTION 6. (a) The change in law made by Sections 2 and 4
3-5 of this Act applies only to a case that is pending or commences on
3-6 or after the effective date of this Act.
3-7 (b) Except as provided by Subsection (c) of this section,
3-8 the change in law made by Sections 1, 3, and 5 of this Act applies
3-9 only to the assignment of a judge or justice under Chapter 74 or
3-10 75, Government Code, made on or after the effective date of this
3-11 Act. An assignment made before the effective date of this Act is
3-12 governed by the law in effect at the time the assignment is made,
3-13 and that law is continued in effect for that purpose.
3-14 (c) The change in law made by Sections 1, 3, and 5 of this
3-15 Act does not apply to a person who immediately before the effective
3-16 date of this Act meets the eligibility requirements to be assigned
3-17 as a visiting judge by the chief justice of the supreme court under
3-18 Subsection (b), Section 74.003, or Chapter 75, Government Code, or
3-19 to be named on a list of retired and former judges under Subsection
3-20 (c), Section 74.055, Government Code, other than the certification
3-21 requirement under Subdivision (6), Subsection (c), Section 74.055,
3-22 Government Code, and the former law is continued in effect for
3-23 determining that person's eligibility for those purposes.
3-24 SECTION 7. This Act takes effect September 1, 1999.
3-25 SECTION 8. The importance of this legislation and the
3-26 crowded condition of the calendars in both houses create an
3-27 emergency and an imperative public necessity that the
3-28 constitutional rule requiring bills to be read on three several
3-29 days in each house be suspended, and this rule is hereby suspended.
3-30 * * * * *