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. 1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 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. 4-43 * * * * *