By: Ellis, Ratliff S.B. No. 1346
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the State Commission on Judicial Conduct.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Section 33.001, Government Code, is amended to
1-4 read as follows:
1-5 Sec. 33.001. DEFINITIONS. (a) In this chapter:
1-6 (1) "Censure" means an order of denunciation issued by
1-7 the commission under Section 1-a(8), Article V, Texas Constitution,
1-8 or an order issued by a review tribunal under Section 1-a(9),
1-9 Article V, Texas Constitution.
1-10 (2) "Chairperson" means the member of the commission
1-11 selected by the members of the commission to serve as its presiding
1-12 officer.
1-13 (3) "Clerk" means the individual designated by the
1-14 commission to assist in:
1-15 (A) formal proceedings before the commission or
1-16 a special master; or
1-17 (B) proceedings before a special court of
1-18 review.
1-19 (4) "Commission" means the State Commission on
1-20 Judicial Conduct.
1-21 (5) "Examiner" means an individual, including an
1-22 employee or special counsel of the commission, appointed by the
1-23 commission to gather and present evidence before a special master,
1-24 the commission, a special court of review, or a review tribunal.
2-1 (6) "Formal hearing" means the public evidentiary
2-2 phase of formal proceedings conducted before the commission or a
2-3 special master.
2-4 (7) "Formal proceedings" means the proceedings ordered
2-5 by the commission concerning the public censure, removal, or
2-6 retirement of a judge.
2-7 (8) [(2)] "Judge" means a justice, judge, master,
2-8 magistrate, or retired or former judge as described by Section 1-a,
2-9 [who is the subject of an investigation or proceeding under]
2-10 Article V, [Section 1-a, of the] Texas Constitution, or other
2-11 person who performs the functions of the justice, judge, master,
2-12 magistrate, or retired or former judge.
2-13 (9) "Review tribunal" means a panel of seven justices
2-14 of the courts of appeal selected by lot by the chief justice of the
2-15 supreme court to review a recommendation of the commission for the
2-16 removal or retirement of a judge under Section 1-a(9), Article V,
2-17 Texas Constitution.
2-18 (10) "Sanction" means an order issued by the
2-19 commission under Section 1-a(8), Article V, Texas Constitution,
2-20 providing for a private or public admonition, warning, or reprimand
2-21 or requiring that a person obtain additional training or education.
2-22 (11) "Special court of review" means a panel of three
2-23 justices of the courts of appeal selected by lot by the chief
2-24 justice of the supreme court on petition to review a sanction
2-25 issued by the commission.
2-26 (12) [(3)] "Special master" means a master appointed
3-1 by the supreme court under Section 1-a, Article V, [Section 1-a, of
3-2 the] Texas Constitution.
3-3 (b) For purposes of Section 1-a, Article V, [Section 1-a, of
3-4 the] Texas Constitution, "wilful or persistent conduct that is
3-5 clearly inconsistent with the proper performance of a judge's
3-6 duties" includes:
3-7 (1) wilful, persistent, and unjustifiable failure to
3-8 timely execute the business of the court, considering the quantity
3-9 and complexity of the business;
3-10 (2) wilful violation of a provision of the Texas penal
3-11 statutes or the Code of Judicial Conduct;
3-12 (3) persistent or wilful violation of the rules
3-13 promulgated by the supreme court; or
3-14 (4) incompetence in the performance of the duties of
3-15 the office.
3-16 (c) The definition provided by Subsection (b) is not
3-17 exclusive.
3-18 SECTION 2. Subsection (a), Section 33.002, Government Code,
3-19 is amended to read as follows:
3-20 (a) The State Commission on Judicial Conduct is established
3-21 under Section 1-a, Article V, [Section 1-a, of the] Texas
3-22 Constitution, and has the powers provided by that section.
3-23 SECTION 3. Section 33.005, Government Code, is amended by
3-24 amending Subsections (b) and (c) and adding Subsection (e) to read
3-25 as follows:
3-26 (b) The report must include:
4-1 (1) an explanation of the role of the commission;
4-2 (2) annual statistical information and examples of
4-3 [proper and] improper judicial conduct;
4-4 (3) an explanation of the commission's processes; and
4-5 (4) changes the commission considers necessary in its
4-6 rules or the applicable statutes or constitutional provisions.
4-7 (c) The commission shall distribute the report to the
4-8 governor, lieutenant governor, [and] speaker of the house of
4-9 representatives, and editor of [shall cause the report to be
4-10 printed in] the Texas Bar Journal.
4-11 (e) The Texas Bar Journal shall publish a report received
4-12 from the commission under Subsection (c).
4-13 SECTION 4. Subchapter A, Chapter 33, Government Code, is
4-14 amended by adding Section 33.006 to read as follows:
4-15 Sec. 33.006. IMMUNITY FROM LIABILITY. (a) This section
4-16 applies to:
4-17 (1) the commission;
4-18 (2) a member of the commission;
4-19 (3) the executive director of the commission;
4-20 (4) an employee of the commission;
4-21 (5) a special master appointed under Section 1-a(8),
4-22 Article V, Texas Constitution; and
4-23 (6) special counsel for the commission.
4-24 (b) A person to which this section applies is not liable for
4-25 an act or omission committed by the person within the scope of the
4-26 person's official duties.
5-1 (c) The immunity from liability provided by this section is
5-2 absolute and unqualified and extends to any action at law or in
5-3 equity.
5-4 SECTION 5. Section 33.021, Government Code, is amended to
5-5 read as follows:
5-6 Sec. 33.021. GENERAL POWERS OF COMMISSION. The commission
5-7 may:
5-8 (1) design and use a seal;
5-9 (2) employ persons that it considers necessary to
5-10 carry out the duties and powers of the commission [and special
5-11 masters];
5-12 (3) employ special counsel as it considers necessary;
5-13 (4) arrange for attendance of witnesses, including
5-14 those not subject to subpoena;
5-15 (5) arrange for and compensate expert witnesses and
5-16 reporters; and
5-17 (6) pay from its available funds the reasonably
5-18 necessary expenses of carrying out its duties under the
5-19 constitution, including providing compensation to special masters.
5-20 SECTION 6. Section 33.022, Government Code, is amended to
5-21 read as follows:
5-22 Sec. 33.022. INVESTIGATIONS AND FORMAL PROCEEDINGS
5-23 [COMPLAINANT'S AND JUDGE'S RIGHTS]. (a) The commission may
5-24 conduct a preliminary investigation of the circumstances
5-25 surrounding an allegation or appearance of misconduct or disability
5-26 of a judge to determine if the allegation or appearance is
6-1 unfounded or frivolous.
6-2 (b) If, after conducting a preliminary investigation under
6-3 this section, the commission determines that an allegation or
6-4 appearance of misconduct or disability is unfounded or frivolous,
6-5 the commission shall terminate the investigation.
6-6 (c) If, after conducting a preliminary investigation under
6-7 this section, the commission does not determine that an allegation
6-8 or appearance of misconduct or disability is unfounded or
6-9 frivolous, the commission:
6-10 (1) shall:
6-11 (A) conduct a full investigation of the
6-12 circumstances surrounding the allegation or appearance of
6-13 misconduct or disability; and
6-14 (B) notify the judge in writing of:
6-15 (i) the commencement of the investigation;
6-16 and
6-17 (ii) the nature of the allegation or
6-18 appearance of misconduct or disability being investigated; and
6-19 (2) may:
6-20 (A) request the judge to:
6-21 (i) submit a written response to the
6-22 allegation or appearance of misconduct or disability; or
6-23 (ii) appear informally before the
6-24 commission; or
6-25 (B) order the deposition of any person other
6-26 than the judge.
7-1 (d) The commission shall serve an order issued by the
7-2 commission under Subsection (c)(2)(B) on the person who is the
7-3 subject of the deposition and the judge who is the subject of the
7-4 investigation. The order must be served within a reasonable time
7-5 before the date of the deposition.
7-6 (e) The commission may file an application in a district
7-7 court to enforce an order issued by the commission under Subsection
7-8 (c)(2)(B).
7-9 (f) The commission shall notify the judge in writing of the
7-10 disposition of a full investigation conducted by the commission
7-11 under this section [In the conduct of an investigation the judge
7-12 shall be informed in writing that an investigation has commenced
7-13 and of the nature of the matters being investigated. At the
7-14 conclusion of the investigation, the commission shall determine
7-15 whether formal proceedings under Subsection (b) shall be had. The
7-16 complainant, if any, is entitled to appear before the commission at
7-17 any formal proceedings and give testimony regarding the matters
7-18 being investigated. If the commission decides no further
7-19 proceedings are warranted, the chairman of the commission shall so
7-20 notify the complainant, if any, and the judge in writing].
7-21 (g) [(b)] If after the investigation has been completed the
7-22 commission concludes that formal proceedings will be instituted,
7-23 the matter shall be entered in a docket to be kept for that purpose
7-24 and written notice of the institution of formal proceedings shall
7-25 be served on [issued to] the judge without delay. The proceedings
7-26 shall be entitled:
8-1 "Before the State Commission on Judicial Conduct Inquiry
8-2 Concerning a Judge, No. ____"
8-3 (h) [(c)] The notice shall specify in ordinary and concise
8-4 language the charges against the judge and the alleged facts on
8-5 which the charges are based and the specific standards [statute or
8-6 rule] contended to have been violated. [The written notice may
8-7 charge more than one violation, but each violation shall be charged
8-8 in a separate paragraph immediately followed by a statement of the
8-9 acts constituting the violation.] The judge is entitled to file a
8-10 written answer to the charges against the judge [him] not later
8-11 than the 15th day after the notice is served on the judge [him],
8-12 and the notice shall so advise the judge [him].
8-13 (i) [(d)] The notice shall be served on the judge by
8-14 personal service of a copy of the notice by a member of the
8-15 commission or by some person designated by the chairperson
8-16 [chairman]. The person serving the notice shall promptly notify
8-17 the clerk [commission] in writing of the date on which the notice
8-18 was served. If it appears to the chairperson [chairman] on
8-19 affidavit that, after reasonable effort during a period of 10 days,
8-20 personal service could not be had, service may be made by mailing
8-21 by registered or certified mail copies of the notice addressed to
8-22 the judge at the judge's [his] chambers or at the judge's [his]
8-23 last known residence in an [a blank] envelope marked "personal and
8-24 confidential." The date of mailing shall be entered in the docket.
8-25 (j) A [(e) In the conduct of investigations and formal
8-26 proceedings, a] judge at the judge's [his] request may elect to
9-1 have any hearing open to the public or to persons designated by the
9-2 judge. The right of a judge to an open hearing does not preclude
9-3 placing witnesses under the rule as provided by [Rule 267 of] the
9-4 Texas Rules of Civil Procedure.
9-5 (k) A judge is not entitled to a jury trial in formal
9-6 proceedings before a special master or the commission.
9-7 SECTION 7. Section 33.023, Government Code, is amended to
9-8 read as follows:
9-9 Sec. 33.023. PHYSICAL OR MENTAL INCAPACITY [EXAMINATION] OF
9-10 JUDGE. (a) In any investigation or proceeding that involves the
9-11 involuntary retirement of a judge because of physical or mental
9-12 incapacity to discharge the judge's [his] duty, the commission may
9-13 order [require] the judge to submit to a physical or [and] mental
9-14 examination by one or more physicians selected and paid by the
9-15 commission.
9-16 (b) The commission shall give the judge written notice of
9-17 the examination not later than 10 days before the date of the
9-18 examination. The notice must include the physician's name and the
9-19 date, time, and place of the examination. The examination must be
9-20 in a city or town in which the judge permanently or temporarily
9-21 resides, or at a location in the state to which the judge consents.
9-22 (c) Each examining physician shall file a written report of
9-23 the examination with the commission and the report shall be
9-24 received as evidence without further formality. On request of the
9-25 judge or the judge's attorney, the commission shall give the judge
9-26 a copy of the report. The physician's oral or deposition testimony
10-1 concerning the report may be required by the commission or by
10-2 written demand of the judge.
10-3 (d) If a judge refuses to submit to a physical or mental
10-4 examination ordered by the commission under this section, the
10-5 commission may petition a district court for an order compelling
10-6 the judge to submit to the physical or mental examination.
10-7 SECTION 8. Section 33.024, Government Code, is amended to
10-8 read as follows:
10-9 Sec. 33.024. OATHS AND SUBPOENAS. In conducting an
10-10 investigation, [or] formal proceedings [proceeding], or proceedings
10-11 before a special court of review, a commission member, [or the]
10-12 special master, or member of a special court of review may:
10-13 (1) administer oaths;
10-14 (2) order and provide for inspection of books and
10-15 records; and
10-16 (3) issue a subpoena for attendance of a witness or
10-17 production of papers, books, accounts, documents, and testimony
10-18 relevant to the investigation or proceeding.
10-19 SECTION 9. Section 33.025, Government Code, is amended to
10-20 read as follows:
10-21 Sec. 33.025. ENFORCEMENT OF [FAILURE TO OBEY] SUBPOENA.
10-22 (a) The commission may file an application in a district court or,
10-23 if appropriate, with a special master or special court of review,
10-24 to enforce a subpoena issued by the commission under this chapter
10-25 [If a person other than the judge refuses to testify or obey a
10-26 subpoena issued under this chapter, the commission or the special
11-1 master may petition a district court for an order, or the special
11-2 master may issue an order, compelling the person to attend and
11-3 testify or produce writings or other material required by the
11-4 subpoena. The order shall require the person to appear before the
11-5 court or special master at a specified time and place to show cause
11-6 for the failure to obey the subpoena. The court or the special
11-7 master shall serve a copy of the order on the person].
11-8 (b) A special master or special court of review may enforce
11-9 by contempt a subpoena issued by the commission, the special
11-10 master, or the special court of review [If the court or the special
11-11 master finds that the subpoena was regularly issued, the court or
11-12 master shall order the person to appear before the commission or
11-13 master at a specified time and place to testify or satisfy the
11-14 requirements of the subpoena.]
11-15 [(c) Failure to obey the order of the court or the special
11-16 master shall be dealt with as contempt].
11-17 SECTION 10. Section 33.026, Government Code, is amended to
11-18 read as follows:
11-19 Sec. 33.026. WITNESS IMMUNITY. (a) In a proceeding or
11-20 deposition related to a proceeding before the commission, [or] a
11-21 special master, or a special court of review, the commission,
11-22 special [court or] master, or special court of review may compel a
11-23 person other than the judge to testify or produce evidence over the
11-24 person's claim of privilege against self-incrimination.
11-25 (b) A person compelled to testify over a proper claim of
11-26 privilege against self-incrimination is not subject to indictment
12-1 or prosecution for a matter or transaction about which the person
12-2 truthfully testifies or produces evidence.
12-3 (c) A special master has the same powers as a district judge
12-4 in matters of contempt and granting immunity.
12-5 SECTION 11. Section 33.027, Government Code, is amended to
12-6 read as follows:
12-7 Sec. 33.027. DISCOVERY [DEPOSITION]. (a) In formal
12-8 proceedings or in a proceeding before a special court of review,
12-9 discovery shall be conducted, to the extent practicable, in the
12-10 manner provided by the rules applicable to civil cases generally
12-11 [In a pending investigation or formal proceeding, the commission or
12-12 the special master may order the deposition of any person. The
12-13 deposition shall be taken in the form, and is subject to
12-14 limitations, prescribed in the order].
12-15 (b) On request, a special master, the commission, or a
12-16 special court of review shall expedite the discovery in formal
12-17 proceedings or in a proceeding before a special court of review [If
12-18 the judge and commission counsel do not stipulate the manner of
12-19 taking the deposition, the judge or counsel may petition a district
12-20 court for an order requiring the person to testify. If the person
12-21 resides or is present in the state, the judge or counsel shall file
12-22 the petition in the county in which the person resides or is
12-23 present. If the person does not reside or is not present in the
12-24 state, the judge or counsel shall file the petition in a county in
12-25 which the commission has an office. The petition must be entitled
12-26 "In the Matter of Proceeding of State Commission on Judicial
13-1 Conduct No. ____ (state number)" and, without identifying the
13-2 judge, must state generally:]
13-3 [(1) the nature of the pending matter;]
13-4 [(2) the deponent's name and residence;]
13-5 [(3) the directions, if any, of the commission or
13-6 special master; and]
13-7 [(4) a request for an order requiring the person to
13-8 appear and testify before a designated officer].
13-9 (c) The following may not be the subject of a discovery
13-10 request in formal proceedings or in a proceeding before a special
13-11 court of review:
13-12 (1) the discussions, thought processes, or individual
13-13 votes of members of the commission;
13-14 (2) the discussions or thought processes of employees
13-15 of the commission, including special counsel for the commission; or
13-16 (3) the identity of a complainant or informant if the
13-17 person requests that the person's identity be kept confidential [On
13-18 the filing of the petition, the court may order the person to
13-19 appear and testify. The clerk shall issue a subpoena for the
13-20 deposition. The person taking the deposition shall take and return
13-21 it in the manner prescribed by law for depositions in civil
13-22 actions.]
13-23 [(d) Failure to obey the subpoena or an order connected with
13-24 the subpoena shall be dealt with as contempt].
13-25 SECTION 12. Section 33.028, Government Code, is amended to
13-26 read as follows:
14-1 Sec. 33.028. PROCESS AND ORDERS. (a) Process issued [in an
14-2 investigation or formal proceeding] under this chapter is valid
14-3 anywhere in the state.
14-4 (b) [On request of the commission, a commission member, or
14-5 an authorized representative of the commission, a sheriff or a
14-6 constable shall serve any process or execute lawful orders issued
14-7 by the commission.] A peace officer [commission member], an
14-8 employee of the commission [a special master], or any other [a]
14-9 person whom the commission, a special master, or a special court of
14-10 review designates may [also] serve process or execute a lawful
14-11 order of the commission, the special master, or the special court
14-12 of review.
14-13 SECTION 13. Section 33.029, Government Code, is amended to
14-14 read as follows:
14-15 Sec. 33.029. WITNESSES' EXPENSES. A witness called to
14-16 testify by the commission other than an officer or employee of the
14-17 state or a political subdivision or court of the state is entitled
14-18 to the same mileage expenses and per diem as a witness before a
14-19 state grand jury. The commission shall pay these amounts from its
14-20 appropriated funds.
14-21 SECTION 14. Section 33.030, Government Code, is amended to
14-22 read as follows:
14-23 Sec. 33.030. ASSISTANCE TO COMMISSION, [AND] SPECIAL MASTER,
14-24 OR SPECIAL COURT OF REVIEW. (a) On request of the commission, the
14-25 attorney general shall act as its counsel generally or in a
14-26 particular investigation or proceeding.
15-1 (b) A state or local government body or department, an
15-2 officer or employee of a state or local government body, or an
15-3 official or agent of a state court shall cooperate with and give
15-4 reasonable assistance and information to the commission, an
15-5 authorized representative of the commission, [or] a special master,
15-6 or a special court of review concerning an investigation or
15-7 proceeding before the commission, special [or] master, or special
15-8 court of review.
15-9 SECTION 15. Section 33.031, Government Code, is amended to
15-10 read as follows:
15-11 Sec. 33.031. NO AWARD OF COSTS. Court [The commission, a
15-12 special master, or a district court may not award] costs or
15-13 attorney's fees may not be awarded in a proceeding under this
15-14 chapter.
15-15 SECTION 16. Section 33.032, Government Code, is amended to
15-16 read as follows:
15-17 Sec. 33.032. CONFIDENTIALITY OF PAPERS, RECORDS, AND
15-18 PROCEEDINGS. (a) Except as provided by Section 33.034 [33.034(d)]
15-19 and Subsections [Subsection] (c), (d), and (e) [of this section],
15-20 the papers filed with and proceedings before the commission are
15-21 confidential prior to the convening of a formal hearing.
15-22 (b) The formal hearing[, and all papers, records,
15-23 documents,] and any [other] evidence introduced during the formal
15-24 hearing, including papers, records, documents, and pleadings filed
15-25 with the clerk, shall be public on the convening of the formal
15-26 hearing.
16-1 (c) If the commission issues a public admonition, warning,
16-2 reprimand, or requirement that a person obtain additional training
16-3 or education, all papers, documents, evidence, and records
16-4 considered by the commission, or forwarded to the commission by its
16-5 staff, in the proceedings shall be public.
16-6 (d) The disciplinary record of a judge, including any
16-7 private sanctions, is admissible in a subsequent proceeding before
16-8 the commission, a special master, a special court of review, or a
16-9 review tribunal.
16-10 (e) On the filing of a written request by a judge, the
16-11 commission may release to the person designated in the request,
16-12 including the judge, the number, nature, and disposition of a
16-13 complaint filed against the judge with the commission, except that
16-14 the commission may refuse to release the identity of a complainant.
16-15 SECTION 17. Section 33.033, Government Code, is amended to
16-16 read as follows:
16-17 Sec. 33.033. NOTIFICATION TO COMPLAINANT. (a) The
16-18 commission shall promptly notify a complainant [of judicial
16-19 conduct] of the disposition of the complaint.
16-20 (b) The communication shall inform the complainant that:
16-21 (1) the complaint [has no basis and] has been
16-22 dismissed;
16-23 (2) appropriate action has been taken, the nature of
16-24 which will not be disclosed unless disclosure is authorized under
16-25 Section 33.032; [or]
16-26 (3) a public sanction has been issued by the
17-1 commission; or
17-2 (4) formal proceedings have been instituted.
17-3 (c) The communication may not contain the name of a judge
17-4 unless a public sanction has been issued by the commission or
17-5 formal proceedings have been instituted.
17-6 (d) If a public sanction has been issued by the commission,
17-7 the communication must include a copy of the public sanction.
17-8 SECTION 18. Subsections (a), (d), (e), (f), and (h), Section
17-9 33.034, Government Code, are amended to read as follows:
17-10 (a) A judge who receives from the commission any type of
17-11 sanction is entitled to a review of the commission's decision as
17-12 provided by this section. This section does not apply to a
17-13 decision by the commission to institute formal [removal]
17-14 proceedings.
17-15 (d) Within 15 days after the appointment of the court of
17-16 review, the commission shall file with the clerk [petitioner and
17-17 each justice on the court] a charging document that includes a copy
17-18 of the sanction issued and any additional charges to be considered
17-19 in the de novo proceeding [containing the commission's specific
17-20 findings against the judge and the papers, documents, records, and
17-21 evidence on which the commission based its decision]. The charging
17-22 document is [Those documents are] public on its [on their] filing
17-23 with the clerk [court]. On receipt of the filing of the charging
17-24 document, the clerk shall send the charging document to the judge
17-25 who is the subject of the document and to each justice on the court
17-26 of review.
18-1 (e) The review by the court under this section is by trial
18-2 de novo as that term is used in the appeal of cases from justice to
18-3 county court. Any hearings of the court shall be public and shall
18-4 be held at the location [or locations] determined by the court.
18-5 Any evidence introduced during a hearing, including papers,
18-6 records, documents, and pleadings filed with the clerk in the
18-7 proceedings, is public.
18-8 (f) Except as otherwise provided by this section, the
18-9 procedure for the review is governed to the extent practicable by
18-10 the rules of law, evidence, and procedure that apply to the trial
18-11 of civil actions generally.
18-12 (h) Within 30 days after the date on which the charging
18-13 document is filed with the clerk [court], the court shall conduct a
18-14 hearing on the charging document. The court may, if good cause is
18-15 shown, grant one or more continuances not to exceed a total of 30
18-16 days [commission may employ a special counsel to represent the
18-17 commission at the hearing]. Within 60 days after the hearing, the
18-18 court, in its discretion, shall issue a decision as to the proper
18-19 disposition of the appeal.
18-20 SECTION 19. (a) Except as provided by Subsection (b) of
18-21 this section, the change in law made by this Act applies only to an
18-22 investigation or proceeding under Chapter 33, Government Code, as
18-23 amended by this Act, instituted on or after the effective date of
18-24 this Act.
18-25 (b) The change in law made by Section 4 of this Act applies
18-26 only to a cause of action that accrues on or after the effective
19-1 date of this Act. An action that accrued before the effective date
19-2 of this Act is governed by the law applicable to the action
19-3 immediately before the effective date of this Act, and that law is
19-4 continued in effect for that purpose.
19-5 SECTION 20. The importance of this legislation and the
19-6 crowded condition of the calendars in both houses create an
19-7 emergency and an imperative public necessity that the
19-8 constitutional rule requiring bills to be read on three several
19-9 days in each house be suspended, and this rule is hereby suspended,
19-10 and that this Act take effect and be in force from and after its
19-11 passage, and it is so enacted.