By Fraser S.B. No. 1066
76R2028 MXM-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain proceedings under the Texas Code of Military
1-3 Justice.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 432.001(7), Government Code, is amended
1-6 to read as follows:
1-7 (7) "Judge advocate" means a commissioned officer
1-8 appointed to serve as a judge advocate [who is certified] by the
1-9 adjutant [state judge advocate] general under Section 432.005(b).
1-10 SECTION 2. Sections 432.005(a) and (b), Government Code, are
1-11 amended to read as follows:
1-12 (a) The adjutant general shall appoint an officer of the
1-13 state military forces as state judge advocate general. To be
1-14 eligible for appointment, an officer must be a member of the State
1-15 Bar of Texas [bar of a federal court and of the highest court of
1-16 this state] for at least five years.
1-17 (b) The adjutant general shall appoint judge advocates and
1-18 legal officers on recommendation by [of] the state judge advocate
1-19 general. To be eligible for appointment, a judge advocate or legal
1-20 officer must be an officer of the state military forces and a
1-21 member of the State Bar of Texas [bar of a federal court and of the
1-22 highest court of this state].
1-23 SECTION 3. Section 432.042, Government Code, is amended to
1-24 read as follows:
2-1 Sec. 432.042. WHO MAY CONVENE SPECIAL COURT-MARTIAL. In the
2-2 state military forces not in federal service, any commander in the
2-3 grade of lieutenant colonel or in a higher grade [the commanding
2-4 officer of a garrison, fort, post, camp, air base, auxiliary air
2-5 base, or other place where troops are on duty, or of a division,
2-6 brigade, regiment, wing, group, detached battalion, separate
2-7 squadron, or other detached command,] may convene a special
2-8 court-martial. [Special courts-martial may also be convened by
2-9 superior authority. If such an officer is an accuser, the court
2-10 may be convened by superior competent authority if considered
2-11 advisable by him.]
2-12 SECTION 4. Section 432.043, Government Code, is amended to
2-13 read as follows:
2-14 Sec. 432.043. WHO MAY CONVENE SUMMARY COURT-MARTIAL. In the
2-15 state military forces not in federal service, any commander in the
2-16 grade of major or in a higher grade [the commanding officer of a
2-17 garrison, fort, post, camp, air base, auxiliary air base, or other
2-18 place where troops are on duty, or of a regiment, wing, group,
2-19 detached battalion, detached squadron, detached company, or other
2-20 detachment,] may convene a summary court-martial.
2-21 SECTION 5. Sections 432.044(b) and (c), Government Code, are
2-22 amended to read as follows:
2-23 (b) A warrant officer in a [state] duty status is eligible
2-24 to serve on general and special courts-martial for the trial of a
2-25 person, other than a commissioned officer, who may lawfully be
2-26 brought before the courts for trial.
2-27 (c) An enlisted member of the state military forces in a
3-1 [state] duty status who is not a member of the same unit as the
3-2 accused is eligible to serve on general and special courts-martial
3-3 for the trial of an enlisted member of the state military forces
3-4 who may lawfully be brought before the court for trial if, before
3-5 the conclusion of a session called by the military judge under
3-6 Section 432.064(a) before trial or, in the absence of such a
3-7 session, before the court is assembled for the trial of the
3-8 accused, the accused personally has requested in writing that
3-9 enlisted members serve on it. After such a request, the accused
3-10 may not be tried by a general or special court-martial the
3-11 membership of which does not include enlisted members in a number
3-12 comprising at least one-third of the total membership of the court,
3-13 unless eligible members cannot be obtained because of physical
3-14 conditions or military exigencies. If a sufficient number of
3-15 enlisted members cannot be obtained, the court may be convened and
3-16 the trial held without them, but the convening authority shall make
3-17 a detailed written statement, to be appended to the record, stating
3-18 why they could not be obtained. In this subsection, "unit" means a
3-19 regularly organized body of the state military forces.
3-20 SECTION 6. Section 432.045(b), Government Code, is amended
3-21 to read as follows:
3-22 (b) A military judge must be a commissioned officer of the
3-23 state military forces, a member of the State Bar of Texas [bar of a
3-24 federal court, a member of the bar of the highest court of this
3-25 state], and certified to be qualified for duty as a military judge
3-26 by the state judge advocate general of the state military forces.
3-27 SECTION 7. Sections 432.046(b) and (c), Government Code, are
4-1 amended to read as follows:
4-2 (b) Trial counsel or defense counsel detailed for a general
4-3 court-martial must be:
4-4 (1) [a graduate of an accredited law school;]
4-5 [(2)] a member of the State Bar of Texas [bar of a
4-6 federal court or of the highest court of a state]; and
4-7 (2) [(3)] certified as competent to perform those
4-8 duties by the state judge advocate general.
4-9 (c) In the case of a special or summary court-martial the
4-10 accused shall be afforded the opportunity to be represented at the
4-11 trial by counsel having the qualifications prescribed under
4-12 Subsection (b) unless counsel having those qualifications cannot be
4-13 obtained because of physical conditions or military exigencies. If
4-14 counsel having those qualifications cannot be obtained, the court
4-15 may be convened and the trial held, but the convening authority
4-16 shall make a detailed written statement, to be appended to the
4-17 record, stating why counsel with those qualifications could not be
4-18 obtained. If the trial counsel is qualified to act as counsel
4-19 before a general court-martial, the defense counsel detailed by the
4-20 convening authority must be a person similarly qualified. If the
4-21 trial counsel is a judge advocate or a member of the State Bar of
4-22 Texas [bar of a federal court or the highest court of a state], the
4-23 defense counsel detailed by the convening authority must be a judge
4-24 advocate or a member of the State Bar of Texas [bar of a federal
4-25 court or the highest court of a state].
4-26 SECTION 8. Section 432.108, Government Code, is amended to
4-27 read as follows:
5-1 Sec. 432.108. REVIEW BY STATE JUDGE ADVOCATE GENERAL. (a)
5-2 In a case reviewable by the state judge advocate general [under
5-3 this section], the state judge advocate general may act only with
5-4 respect to the findings and sentence as approved by the convening
5-5 authority. He may affirm only findings of guilty and the sentence
5-6 or part of the sentence that he finds correct in law and fact and
5-7 determines, on the basis of the entire record, should be approved.
5-8 In considering the record, the state judge advocate general may
5-9 weigh the evidence, judge the credibility of witnesses, and
5-10 determine controverted questions of fact, recognizing that the
5-11 trial court saw and heard the witnesses. If the state judge
5-12 advocate general sets aside the findings and sentence, he may order
5-13 a rehearing, unless the setting aside is based on lack of
5-14 sufficient evidence in the record to support the findings. If the
5-15 state judge advocate general sets aside the findings and sentence
5-16 and does not order a rehearing, he shall order that the charges be
5-17 dismissed.
5-18 (b) In a case reviewable by the state judge advocate general
5-19 [under this section or Section 432.107], the state judge advocate
5-20 general shall instruct the convening authority to act in accordance
5-21 with his decision on the review. If he has ordered a rehearing but
5-22 the convening authority finds a rehearing impracticable, he may
5-23 dismiss the charges.
5-24 SECTION 9. Sections 432.109(a) and (f), Government Code, are
5-25 amended to read as follows:
5-26 (a) The Texas Court of Military Appeals, located for
5-27 administrative purposes only in the adjutant general's department,
6-1 consists of five judges appointed by the adjutant general on the
6-2 advice and recommendation of the state judge advocate general for
6-3 staggered six-year terms. A judge appointed to fill a vacancy
6-4 occurring before the expiration of the term for which the judge's
6-5 predecessor was appointed shall be appointed only for the unexpired
6-6 term of his predecessor. The adjutant general, on the advice and
6-7 recommendation of the state judge advocate general, shall appoint
6-8 the chief judge of the court. A person is eligible for appointment
6-9 to the court if the person:
6-10 (1) is a member of the State Bar of Texas [bar of the
6-11 highest court of this state];
6-12 (2) [is a member of a federal bar;]
6-13 [(3) is a graduate of an accredited school of law;]
6-14 [(4)] is a commissioned officer of the state military
6-15 forces, active or retired, or a retired commissioned officer in the
6-16 reserves of the armed forces of the United States; and
6-17 (3) [(5)] has been engaged in the active practice of
6-18 law for at least five years and has at least five years' experience
6-19 as a staff judge advocate, judge advocate, or legal officer with
6-20 the state military forces, except that the requirements of this
6-21 subdivision are satisfied by equivalent experience or practice in
6-22 the armed forces of the United States.
6-23 (f) The Texas Court of Military Appeals has appellate
6-24 jurisdiction, on petition of an accused, to hear and review the
6-25 record in:
6-26 (1) all general and special court-martial cases; and
6-27 (2) a summary court-martial case [all other cases] in
7-1 which a judge of this court has made a determination that there may
7-2 be a constitutional issue involved.
7-3 SECTION 10. Section 432.127(b), Government Code, is amended
7-4 to read as follows:
7-5 (b) A person subject to this chapter who solicits or advises
7-6 another or others to commit an act of [misbehavior before the enemy
7-7 in violation of Section 432.144 or] sedition in violation of
7-8 Section 432.139 shall, if the offense solicited or advised is
7-9 committed, be punished with the punishment provided for the
7-10 commission of the offense. If the offense solicited or advised is
7-11 not committed, the person shall be punished as a court-martial
7-12 directs.
7-13 SECTION 11. Sections 432.182(a) and (b), Government Code,
7-14 are amended to read as follows:
7-15 (a) The following persons [on state active duty] may
7-16 administer oaths for the purpose of military administration
7-17 including military justice, and they have the general powers of a
7-18 notary public in the performance of all notarial acts to be
7-19 executed by members of the state military forces, wherever they may
7-20 be:
7-21 (1) the state judge advocate general and all judge
7-22 advocates;
7-23 (2) law specialists and military judges;
7-24 (3) a summary courts-martial officer;
7-25 (4) adjutants, assistant adjutants, acting adjutants,
7-26 and personnel adjutants;
7-27 (5) administrative officers, assistant administrative
8-1 officers, and acting administrative officers;
8-2 (6) staff judge advocates and legal officers, and
8-3 acting or assistant staff judge advocates and legal officers; and
8-4 (7) all other persons designated by regulations of the
8-5 state military forces or by statute.
8-6 (b) The following persons [on state active duty] may
8-7 administer oaths necessary in the performance of their duties:
8-8 (1) the president, military judge, trial counsel, and
8-9 assistant trial counsel for all general and special courts-martial;
8-10 (2) the president, counsel for the court, and recorder
8-11 of any court of inquiry;
8-12 (3) officers designated to take a deposition;
8-13 (4) persons detailed to conduct an investigation;
8-14 (5) recruiting officers; and
8-15 (6) all other persons designated by regulations of the
8-16 state military forces or by statute.
8-17 SECTION 12. Section 432.184(b), Government Code, is amended
8-18 to read as follows:
8-19 (b) If an action or proceeding of any nature is commenced in
8-20 a court other than a military court by any person against a member
8-21 of the state military forces for any act done or caused, or ordered
8-22 or directed to be done, in the line of duty while the member was
8-23 not in federal service [on active state duty], as determined by the
8-24 adjutant general [a finding of fact made by a court of inquiry
8-25 under Section 432.181], all expenses of representation in the
8-26 action or proceeding, including fees of witnesses, depositions,
8-27 court costs, and all costs for transcripts of records or other
9-1 documents that might be needed during trial or appeal shall be paid
9-2 as provided by this chapter. In such an action or proceeding the
9-3 adjutant general, on the written request of the member involved,
9-4 shall designate the state judge advocate general, a judge advocate,
9-5 or a legal officer of the state military forces to represent the
9-6 member. Judge advocates or legal officers performing duty under
9-7 this subsection will be called to [state active] duty by order of
9-8 the governor. If the military legal services, as provided above,
9-9 are not available, the adjutant general, after consultation with
9-10 the state judge advocate general and member involved, shall
9-11 contract with a competent private attorney to conduct the
9-12 representation.
9-13 SECTION 13. Sections 432.144, 432.145, 432.146, 432.147,
9-14 432.148, 432.149, and 432.150, Government Code, are repealed.
9-15 SECTION 14. (a) This Act takes effect September 1, 1999.
9-16 (b) Sections 432.046(b) and (c), Government Code, as amended
9-17 by this Act, apply only to a court-martial that begins on or after
9-18 the effective date of this Act. A court-martial that begins before
9-19 the effective date of this Act is governed by the law in effect
9-20 immediately before that date, and that law is continued in effect
9-21 for that purpose.
9-22 SECTION 15. The importance of this legislation and the
9-23 crowded condition of the calendars in both houses create an
9-24 emergency and an imperative public necessity that the
9-25 constitutional rule requiring bills to be read on three several
9-26 days in each house be suspended, and this rule is hereby suspended.