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.