1-1     By:  Harris                                            S.B. No. 294
 1-2           (In the Senate - Filed January 27, 1999; February 1, 1999,
 1-3     read first time and referred to Committee on Jurisprudence;
 1-4     February 11, 1999, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 5, Nays 0;
 1-6     February 11, 1999, sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 294                   By:  Harris
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the appointment of probate masters for certain courts.
1-12           SECTION 1.  Chapter 54, Government Code, is amended by adding
1-13     Subchapter G to read as follows:
1-14                       SUBCHAPTER G.  PROBATE MASTERS
1-15           Sec. 54.601.  DEFINITION.  In this subchapter, "statutory
1-16     probate court" has the meaning assigned by Section 3, Texas Probate
1-17     Code.
1-18           Sec. 54.602.  APPLICATION.  This subchapter does not apply to
1-19     the statutory probate courts of Dallas County.
1-20           Sec. 54.603.  APPOINTMENT.  (a)  After obtaining the approval
1-21     of the commissioners court, the judge of a statutory probate court
1-22     by order may appoint a person to act as probate master for the
1-23     statutory probate court.
1-24           (b)  The commissioners court may authorize the appointment of
1-25     a probate master for each court or may authorize one or more
1-26     probate masters to share service with two or more courts, if more
1-27     than one statutory probate court exists in a county.
1-28           (c)  If a probate master serves more than one court, the
1-29     probate master's appointment must be made with the unanimous
1-30     approval of all the judges under whom the probate master serves.
1-31           (d)  A probate master must meet the qualifications to serve
1-32     as a judge of the court to which appointed.
1-33           (e)  A probate master appointed under this subchapter may
1-34     serve as a master appointed under Section 574.0085, Health and
1-35     Safety Code.
1-36           Sec. 54.604.  TERMINATION OF PROBATE MASTER.  (a)  A probate
1-37     master who serves a single court serves at the will of the judge of
1-38     that court.
1-39           (b)  The employment of a probate master who serves more than
1-40     two courts may only be terminated by a majority vote of all the
1-41     judges of the courts that the probate master serves.
1-42           (c)  The employment of a probate master who serves two courts
1-43     may be terminated by either of the judges of the courts that the
1-44     probate master serves.
1-45           (d)  The appointment of the probate master terminates if:
1-46                 (1)  the appointing judge vacates the judge's office;
1-47                 (2)  the probate master becomes a candidate for
1-48     election to public office; or
1-49                 (3)  the commissioners court does not appropriate funds
1-50     in the county's budget to pay the salary of the probate master.
1-51           Sec. 54.605.  COMPENSATION.  (a)  A probate master is
1-52     entitled to the compensation set by the appointing judge and
1-53     approved by the commissioners court.  The salary of the probate
1-54     master may not exceed the salary of the appointing judge.
1-55           (b)  The compensation of the probate master shall be paid by
1-56     the county from the county general fund in the same manner that the
1-57     appointing judge's salary is paid.
1-58           Sec. 54.606.  OATH.  A probate master must take the
1-59     constitutional oath of office required of appointed officers of
1-60     this state.
1-61           Sec. 54.607.  MAGISTRATE.  A probate master appointed under
1-62     this subchapter is a magistrate.
1-63           Sec. 54.608.  CASES THAT MAY BE REFERRED.  (a)  Except as
1-64     provided by this section, a judge of a court may refer to a probate
 2-1     master any aspect of a suit over which the probate court has
 2-2     jurisdiction, including any matter ancillary to the suit.
 2-3           (b)  Unless a party files a written objection to the probate
 2-4     master hearing a trial on the merits, the judge may refer the trial
 2-5     to the probate master.  A trial on the merits is any final
 2-6     adjudication from which an appeal may be taken to a court of
 2-7     appeals.
 2-8           (c)  A party must file an objection to a probate master
 2-9     hearing a trial on the merits not later than the 10th day after the
2-10     date the party receives notice that the probate master will hear
2-11     the trial.  If an objection is filed, the referring court shall
2-12     hear the trial on the merits.
2-13           (d)  Unless all parties consent in writing to a probate
2-14     master hearing a contested trial on the merits of a lawsuit in
2-15     which the referring court's jurisdiction is concurrent with the
2-16     district court in the county of the referring court, the matter
2-17     must be tried by the referring court.  In a lawsuit in which the
2-18     referring court's jurisdiction is concurrent with the district
2-19     court, any order rendered under a probate master's report is void
2-20     if the parties do not consent in writing to the probate master
2-21     conducting the trial on the merits.
2-22           (e)  If a jury trial is demanded and a jury fee paid in a
2-23     trial on the merits, the probate master shall refer any matters
2-24     requiring a jury back to the referring court for a trial before the
2-25     referring court and jury.
2-26           Sec. 54.609.  ORDER OF REFERRAL.  (a)  In referring a case to
2-27     a probate master, the judge of the referring court shall render:
2-28                 (1)  an individual order of referral; or
2-29                 (2)  a general order of referral specifying the class
2-30     and type of cases to be heard by the probate master.
2-31           (b)  The order of referral may limit the power or duties of a
2-32     probate master.
2-33           Sec. 54.610.  POWERS OF PROBATE MASTER.  Except as limited by
2-34     an order of referral, a probate master may:
2-35                 (1)  conduct a hearing;
2-36                 (2)  hear evidence;
2-37                 (3)  compel production of relevant evidence;
2-38                 (4)  rule on the admissibility of evidence;
2-39                 (5)  issue a summons for the appearance of witnesses;
2-40                 (6)  examine a witness;
2-41                 (7)  swear a witness for a hearing;
2-42                 (8)  make findings of fact on evidence;
2-43                 (9)  formulate conclusions of law;
2-44                 (10)  recommend an order to be rendered in a case;
2-45                 (11)  regulate all proceedings in a hearing before the
2-46     probate master; and
2-47                 (12)  take action as necessary and proper for the
2-48     efficient performance of the probate master's duties.
2-49           Sec. 54.611.  ATTENDANCE OF BAILIFF.  A bailiff shall attend
2-50     a hearing conducted by a probate master if directed to attend by
2-51     the referring court.
2-52           Sec. 54.612.  COURT REPORTER.  (a)  A court reporter is not
2-53     required during a hearing held by a probate master appointed under
2-54     this subchapter unless required by other law.
2-55           (b)  A party, the probate master, or the referring court may
2-56     provide for a reporter during the hearing.
2-57           (c)  The record of a hearing before a probate master may be
2-58     preserved by any means approved by the referring court.
2-59           (d)  The referring court or probate master may impose on a
2-60     party the expense of preserving the record as a court cost.
2-61           Sec. 54.613.  WITNESS.  (a)  A witness appearing before a
2-62     probate master is subject to the penalties for perjury provided by
2-63     law.
2-64           (b)  A referring court may fine or imprison a witness who:
2-65                 (1)  fails to appear before a probate master after
2-66     being summoned; or
2-67                 (2)  improperly refuses to answer a question if the
2-68     refusal has been certified to the court by the probate master.
2-69           Sec. 54.614.  REPORT.  (a)  The probate master's report may
 3-1     contain the probate master's findings, conclusions, or
 3-2     recommendations.  The probate master shall prepare a written report
 3-3     in the form directed by the referring court.  The form may be a
 3-4     notation on the referring court's docket sheet.
 3-5           (b)  After a hearing, the probate master shall provide the
 3-6     parties participating in the hearing notice of the substance of the
 3-7     probate master's report.
 3-8           (c)  Notice may be given to the parties:
 3-9                 (1)  in open court, by an oral statement or a copy of
3-10     the probate master's written report; or
3-11                 (2)  by certified mail, return receipt requested.
3-12           (d)  The probate master shall certify the date of mailing of
3-13     notice by certified mail.  Notice is considered given on the third
3-14     day after the date of mailing.
3-15           (e)  After a hearing conducted by a probate master, the
3-16     probate master shall send the probate master's signed and dated
3-17     report and all other papers relating to the case to the referring
3-18     court.
3-19           Sec. 54.615.  NOTICE OF RIGHT TO APPEAL.  (a)  A probate
3-20     master shall give all parties notice of the right of appeal to the
3-21     judge of the referring court.
3-22           (b)  The notice may be given:
3-23                 (1)  by oral statement in open court;
3-24                 (2)  by posting inside or outside the courtroom of the
3-25     referring court; or
3-26                 (3)  as otherwise directed by the referring court.
3-27           Sec. 54.616.  ORDER OF COURT.  (a)  Pending appeal of the
3-28     probate master's report to the referring court, the decisions and
3-29     recommendations of the probate master's report have the force and
3-30     effect, and are enforceable as, an order of the referring court,
3-31     except for orders providing for incarceration or for the
3-32     appointment of a receiver.
3-33           (b)  If an appeal to the referring court is not filed or the
3-34     right to an appeal to the referring court is waived, the findings
3-35     and recommendations of the probate master become the order of the
3-36     referring court at the time the judge of the referring court signs
3-37     an order conforming to the probate master's report.
3-38           Sec. 54.617.  JUDICIAL ACTION ON A MASTER'S REPORT.  Unless a
3-39     party files a written notice of appeal, the referring court may:
3-40                 (1)  adopt, modify, or reject the probate master's
3-41     report;
3-42                 (2)  hear further evidence; or
3-43                 (3)  recommit the matter to the probate master for
3-44     further proceedings.
3-45           Sec. 54.618.  APPEAL TO REFERRING COURT.  (a)  A party may
3-46     appeal a probate master's report by filing notice of appeal not
3-47     later than the third day after the date the party receives notice
3-48     of the substance of the probate master's report as provided by
3-49     Section 54.614.
3-50           (b)  An appeal to the referring court must be made in writing
3-51     and specify the findings and conclusions of the probate master to
3-52     which the party objects.  The appeal is limited to the findings and
3-53     conclusions specified in the written appeal.
3-54           (c)  The parties may present witnesses on appeal to the
3-55     referring court as in a hearing de novo on the issues raised in the
3-56     appeal.
3-57           (d)  Notice of an appeal to the referring court must be given
3-58     to the opposing attorney in the manner provided by Rule 21a, Texas
3-59     Rules of Civil Procedure.
3-60           (e)  If an appeal to the referring court is filed by a party,
3-61     any other party may file an appeal to the referring court not later
3-62     than the seventh day after the date of filing of the initial
3-63     appeal.
3-64           (f)  The referring court, after notice to the parties, shall
3-65     hold a hearing on all appeals not later than the 30th day after the
3-66     date on which the initial appeal was filed with the referring
3-67     court, unless all of the parties agree to a later date.
3-68           (g)  Before the start of a hearing conducted by a probate
3-69     master, the parties may waive the right of appeal to the referring
 4-1     court.  The waiver may be in writing or on the record.
 4-2           Sec. 54.619.  APPELLATE REVIEW.  (a)  Failure to appeal to
 4-3     the referring court, by waiver or otherwise, the approval by the
 4-4     referring court of a probate master's report does not deprive a
 4-5     party of the right to appeal to or request other relief from a
 4-6     court of appeals or the supreme court.
 4-7           (b)  The date the judge of a referring court signs an order
 4-8     or judgment is the controlling date for the purposes of appeal to
 4-9     or request for other relief from a court of appeals or the supreme
4-10     court.
4-11           Sec. 54.620.  IMMUNITY.  A probate master appointed under
4-12     this subchapter has the judicial immunity of a probate judge.  All
4-13     existing immunity granted a probate master by law, express or
4-14     implied, continues in full force and effect.
4-15           SECTION 2.  Article 2.09, Code of Criminal Procedure, is
4-16     amended to read as follows:
4-17           Art. 2.09.  WHO ARE MAGISTRATES.  Each of the following
4-18     officers is a magistrate within the meaning of this Code:  The
4-19     justices of the Supreme Court, the judges of the Court of Criminal
4-20     Appeals, the justices of the Courts of Appeals, the judges of the
4-21     District Court, the magistrates appointed by the judges of the
4-22     district courts of Bexar County, Dallas County, Tarrant County, or
4-23     Travis County that give preference to criminal cases, the criminal
4-24     law hearing officers for Harris County appointed under Subchapter
4-25     L, Chapter 54, Government Code, the magistrates appointed by the
4-26     judges of the district courts of Lubbock County or Webb County, the
4-27     magistrates appointed by the judges of the criminal district courts
4-28     of Dallas County or Tarrant County, the masters appointed by the
4-29     judges of the district courts and the county courts at law that
4-30     give preference to criminal cases in Jefferson County, the county
4-31     judges, the judges of the county courts at law, judges of the
4-32     county criminal courts, the judges of statutory probate courts, the
4-33     masters appointed by the judges of the statutory probate courts
4-34     under Subchapter G, Chapter 54, Government Code, the justices of
4-35     the peace, the mayors and recorders and the judges of the municipal
4-36     courts of incorporated cities or towns.
4-37           SECTION 3.  This Act takes effect September 1, 1999.
4-38           SECTION 4.  The importance of this legislation and the
4-39     crowded condition of the calendars in both houses create an
4-40     emergency and an imperative public necessity that the
4-41     constitutional rule requiring bills to be read on three several
4-42     days in each house be suspended, and this rule is hereby suspended.
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