By Harris S.B. No. 294 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.