1-1 By: Fraser S.B. No. 1066
1-2 (In the Senate - Filed March 9, 1999; March 11, 1999, read
1-3 first time and referred to Committee on Veteran Affairs and
1-4 Military Installations; April 13, 1999, reported favorably by the
1-5 following vote: Yeas 3, Nays 0; April 13, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to certain proceedings under the Texas Code of Military
1-9 Justice.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Subdivision (7), Section 432.001, Government
1-12 Code, is amended to read as follows:
1-13 (7) "Judge advocate" means a commissioned officer
1-14 appointed to serve as a judge advocate [who is certified] by the
1-15 adjutant [state judge advocate] general under Section 432.005(b).
1-16 SECTION 2. Subsections (a) and (b), Section 432.005,
1-17 Government Code, are amended to read as follows:
1-18 (a) The adjutant general shall appoint an officer of the
1-19 state military forces as state judge advocate general. To be
1-20 eligible for appointment, an officer must be a member of the State
1-21 Bar of Texas [bar of a federal court and of the highest court of
1-22 this state] for at least five years.
1-23 (b) The adjutant general shall appoint judge advocates and
1-24 legal officers on recommendation by [of] the state judge advocate
1-25 general. To be eligible for appointment, a judge advocate or legal
1-26 officer must be an officer of the state military forces and a
1-27 member of the State Bar of Texas [bar of a federal court and of the
1-28 highest court of this state].
1-29 SECTION 3. Section 432.042, Government Code, is amended to
1-30 read as follows:
1-31 Sec. 432.042. WHO MAY CONVENE SPECIAL COURT-MARTIAL. In the
1-32 state military forces not in federal service, any commander in the
1-33 grade of lieutenant colonel or in a higher grade [the commanding
1-34 officer of a garrison, fort, post, camp, air base, auxiliary air
1-35 base, or other place where troops are on duty, or of a division,
1-36 brigade, regiment, wing, group, detached battalion, separate
1-37 squadron, or other detached command,] may convene a special
1-38 court-martial. [Special courts-martial may also be convened by
1-39 superior authority. If such an officer is an accuser, the court
1-40 may be convened by superior competent authority if considered
1-41 advisable by him.]
1-42 SECTION 4. Section 432.043, Government Code, is amended to
1-43 read as follows:
1-44 Sec. 432.043. WHO MAY CONVENE SUMMARY COURT-MARTIAL. In the
1-45 state military forces not in federal service, any commander in the
1-46 grade of major or in a higher grade [the commanding officer of a
1-47 garrison, fort, post, camp, air base, auxiliary air base, or other
1-48 place where troops are on duty, or of a regiment, wing, group,
1-49 detached battalion, detached squadron, detached company, or other
1-50 detachment,] may convene a summary court-martial.
1-51 SECTION 5. Subsections (b) and (c), Section 432.044,
1-52 Government Code, are amended to read as follows:
1-53 (b) A warrant officer in a [state] duty status is eligible
1-54 to serve on general and special courts-martial for the trial of a
1-55 person, other than a commissioned officer, who may lawfully be
1-56 brought before the courts for trial.
1-57 (c) An enlisted member of the state military forces in a
1-58 [state] duty status who is not a member of the same unit as the
1-59 accused is eligible to serve on general and special courts-martial
1-60 for the trial of an enlisted member of the state military forces
1-61 who may lawfully be brought before the court for trial if, before
1-62 the conclusion of a session called by the military judge under
1-63 Section 432.064(a) before trial or, in the absence of such a
1-64 session, before the court is assembled for the trial of the
2-1 accused, the accused personally has requested in writing that
2-2 enlisted members serve on it. After such a request, the accused
2-3 may not be tried by a general or special court-martial the
2-4 membership of which does not include enlisted members in a number
2-5 comprising at least one-third of the total membership of the court,
2-6 unless eligible members cannot be obtained because of physical
2-7 conditions or military exigencies. If a sufficient number of
2-8 enlisted members cannot be obtained, the court may be convened and
2-9 the trial held without them, but the convening authority shall make
2-10 a detailed written statement, to be appended to the record, stating
2-11 why they could not be obtained. In this subsection, "unit" means a
2-12 regularly organized body of the state military forces.
2-13 SECTION 6. Subsection (b), Section 432.045, Government Code,
2-14 is amended to read as follows:
2-15 (b) A military judge must be a commissioned officer of the
2-16 state military forces, a member of the State Bar of Texas [bar of a
2-17 federal court, a member of the bar of the highest court of this
2-18 state], and certified to be qualified for duty as a military judge
2-19 by the state judge advocate general of the state military forces.
2-20 SECTION 7. Subsections (b) and (c), Section 432.046,
2-21 Government Code, are amended to read as follows:
2-22 (b) Trial counsel or defense counsel detailed for a general
2-23 court-martial must be:
2-24 (1) [a graduate of an accredited law school;]
2-25 [(2)] a member of the State Bar of Texas [bar of a
2-26 federal court or of the highest court of a state]; and
2-27 (2) [(3)] certified as competent to perform those
2-28 duties by the state judge advocate general.
2-29 (c) In the case of a special or summary court-martial the
2-30 accused shall be afforded the opportunity to be represented at the
2-31 trial by counsel having the qualifications prescribed under
2-32 Subsection (b) unless counsel having those qualifications cannot be
2-33 obtained because of physical conditions or military exigencies. If
2-34 counsel having those qualifications cannot be obtained, the court
2-35 may be convened and the trial held, but the convening authority
2-36 shall make a detailed written statement, to be appended to the
2-37 record, stating why counsel with those qualifications could not be
2-38 obtained. If the trial counsel is qualified to act as counsel
2-39 before a general court-martial, the defense counsel detailed by the
2-40 convening authority must be a person similarly qualified. If the
2-41 trial counsel is a judge advocate or a member of the State Bar of
2-42 Texas [bar of a federal court or the highest court of a state], the
2-43 defense counsel detailed by the convening authority must be a judge
2-44 advocate or a member of the State Bar of Texas [bar of a federal
2-45 court or the highest court of a state].
2-46 SECTION 8. Section 432.108, Government Code, is amended to
2-47 read as follows:
2-48 Sec. 432.108. REVIEW BY STATE JUDGE ADVOCATE GENERAL.
2-49 (a) In a case reviewable by the state judge advocate general
2-50 [under this section], the state judge advocate general may act only
2-51 with respect to the findings and sentence as approved by the
2-52 convening authority. He may affirm only findings of guilty and the
2-53 sentence or part of the sentence that he finds correct in law and
2-54 fact and determines, on the basis of the entire record, should be
2-55 approved. In considering the record, the state judge advocate
2-56 general may weigh the evidence, judge the credibility of witnesses,
2-57 and determine controverted questions of fact, recognizing that the
2-58 trial court saw and heard the witnesses. If the state judge
2-59 advocate general sets aside the findings and sentence, he may order
2-60 a rehearing, unless the setting aside is based on lack of
2-61 sufficient evidence in the record to support the findings. If the
2-62 state judge advocate general sets aside the findings and sentence
2-63 and does not order a rehearing, he shall order that the charges be
2-64 dismissed.
2-65 (b) In a case reviewable by the state judge advocate general
2-66 [under this section or Section 432.107], the state judge advocate
2-67 general shall instruct the convening authority to act in accordance
2-68 with his decision on the review. If he has ordered a rehearing but
2-69 the convening authority finds a rehearing impracticable, he may
3-1 dismiss the charges.
3-2 SECTION 9. Subsections (a) and (f), Section 432.109,
3-3 Government Code, are amended to read as follows:
3-4 (a) The Texas Court of Military Appeals, located for
3-5 administrative purposes only in the adjutant general's department,
3-6 consists of five judges appointed by the adjutant general on the
3-7 advice and recommendation of the state judge advocate general for
3-8 staggered six-year terms. A judge appointed to fill a vacancy
3-9 occurring before the expiration of the term for which the judge's
3-10 predecessor was appointed shall be appointed only for the unexpired
3-11 term of his predecessor. The adjutant general, on the advice and
3-12 recommendation of the state judge advocate general, shall appoint
3-13 the chief judge of the court. A person is eligible for appointment
3-14 to the court if the person:
3-15 (1) is a member of the State Bar of Texas [bar of the
3-16 highest court of this state];
3-17 (2) [is a member of a federal bar;]
3-18 [(3) is a graduate of an accredited school of law;]
3-19 [(4)] is a commissioned officer of the state military
3-20 forces, active or retired, or a retired commissioned officer in the
3-21 reserves of the armed forces of the United States; and
3-22 (3) [(5)] has been engaged in the active practice of
3-23 law for at least five years and has at least five years' experience
3-24 as a staff judge advocate, judge advocate, or legal officer with
3-25 the state military forces, except that the requirements of this
3-26 subdivision are satisfied by equivalent experience or practice in
3-27 the armed forces of the United States.
3-28 (f) The Texas Court of Military Appeals has appellate
3-29 jurisdiction, on petition of an accused, to hear and review the
3-30 record in:
3-31 (1) all general and special court-martial cases; and
3-32 (2) a summary court-martial case [all other cases] in
3-33 which a judge of this court has made a determination that there may
3-34 be a constitutional issue involved.
3-35 SECTION 10. Subsection (b), Section 432.127, Government
3-36 Code, is amended to read as follows:
3-37 (b) A person subject to this chapter who solicits or advises
3-38 another or others to commit an act of [misbehavior before the enemy
3-39 in violation of Section 432.144 or] sedition in violation of
3-40 Section 432.139 shall, if the offense solicited or advised is
3-41 committed, be punished with the punishment provided for the
3-42 commission of the offense. If the offense solicited or advised is
3-43 not committed, the person shall be punished as a court-martial
3-44 directs.
3-45 SECTION 11. Subsections (a) and (b), Section 432.182,
3-46 Government Code, are amended to read as follows:
3-47 (a) The following persons [on state active duty] may
3-48 administer oaths for the purpose of military administration
3-49 including military justice, and they have the general powers of a
3-50 notary public in the performance of all notarial acts to be
3-51 executed by members of the state military forces, wherever they may
3-52 be:
3-53 (1) the state judge advocate general and all judge
3-54 advocates;
3-55 (2) law specialists and military judges;
3-56 (3) a summary courts-martial officer;
3-57 (4) adjutants, assistant adjutants, acting adjutants,
3-58 and personnel adjutants;
3-59 (5) administrative officers, assistant administrative
3-60 officers, and acting administrative officers;
3-61 (6) staff judge advocates and legal officers, and
3-62 acting or assistant staff judge advocates and legal officers; and
3-63 (7) all other persons designated by regulations of the
3-64 state military forces or by statute.
3-65 (b) The following persons [on state active duty] may
3-66 administer oaths necessary in the performance of their duties:
3-67 (1) the president, military judge, trial counsel, and
3-68 assistant trial counsel for all general and special courts-martial;
3-69 (2) the president, counsel for the court, and recorder
4-1 of any court of inquiry;
4-2 (3) officers designated to take a deposition;
4-3 (4) persons detailed to conduct an investigation;
4-4 (5) recruiting officers; and
4-5 (6) all other persons designated by regulations of the
4-6 state military forces or by statute.
4-7 SECTION 12. Subsection (b), Section 432.184, Government
4-8 Code, is amended to read as follows:
4-9 (b) If an action or proceeding of any nature is commenced in
4-10 a court other than a military court by any person against a member
4-11 of the state military forces for any act done or caused, or ordered
4-12 or directed to be done, in the line of duty while the member was
4-13 not in federal service [on active state duty], as determined by the
4-14 adjutant general [a finding of fact made by a court of inquiry
4-15 under Section 432.181], all expenses of representation in the
4-16 action or proceeding, including fees of witnesses, depositions,
4-17 court costs, and all costs for transcripts of records or other
4-18 documents that might be needed during trial or appeal shall be paid
4-19 as provided by this chapter. In such an action or proceeding the
4-20 adjutant general, on the written request of the member involved,
4-21 shall designate the state judge advocate general, a judge advocate,
4-22 or a legal officer of the state military forces to represent the
4-23 member. Judge advocates or legal officers performing duty under
4-24 this subsection will be called to [state active] duty by order of
4-25 the governor. If the military legal services, as provided above,
4-26 are not available, the adjutant general, after consultation with
4-27 the state judge advocate general and member involved, shall
4-28 contract with a competent private attorney to conduct the
4-29 representation.
4-30 SECTION 13. Sections 432.144, 432.145, 432.146, 432.147,
4-31 432.148, 432.149, and 432.150, Government Code, are repealed.
4-32 SECTION 14. (a) This Act takes effect September 1, 1999.
4-33 (b) Subsections (b) and (c), Section 432.046, Government
4-34 Code, as amended by this Act, apply only to a court-martial that
4-35 begins on or after the effective date of this Act. A court-martial
4-36 that begins before the effective date of this Act is governed by
4-37 the law in effect immediately before that date, and that law is
4-38 continued in effect for that purpose.
4-39 SECTION 15. The importance of this legislation and the
4-40 crowded condition of the calendars in both houses create an
4-41 emergency and an imperative public necessity that the
4-42 constitutional rule requiring bills to be read on three several
4-43 days in each house be suspended, and this rule is hereby suspended.
4-44 * * * * *