By Ellis S.B. No. 1346
76R6629 JMC-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the State Commission on Judicial Conduct.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 33.001, Government Code, is amended to
1-5 read as follows:
1-6 Sec. 33.001. DEFINITIONS. (a) In this chapter:
1-7 (1) "Censure" means an order of denunciation issued by
1-8 the commission under Section 1-a(8), Article V, Texas Constitution,
1-9 or an order issued by a review tribunal under Section 1-a(9),
1-10 Article V, Texas Constitution.
1-11 (2) "Chairperson" means the member of the commission
1-12 selected by the members of the commission to serve as its presiding
1-13 officer.
1-14 (3) "Clerk" means the individual designated by the
1-15 commission to assist in:
1-16 (A) formal proceedings before the commission or
1-17 a special master; or
1-18 (B) proceedings before a special court of
1-19 review.
1-20 (4) "Commission" means the State Commission on
1-21 Judicial Conduct.
1-22 (5) "Examiner" means an individual, including an
1-23 employee or special counsel of the commission, appointed by the
1-24 commission to gather and present evidence before a special master,
2-1 the commission, a special court of review, or a review tribunal.
2-2 (6) "Formal hearing" means the public evidentiary
2-3 phase of formal proceedings conducted before the commission or a
2-4 special master.
2-5 (7) "Formal proceedings" means the proceedings ordered
2-6 by the commission concerning the public censure, removal, or
2-7 retirement of a judge.
2-8 (8) [(2)] "Judge" means a justice, judge, master,
2-9 magistrate, or retired or former judge as described by Section 1-a,
2-10 [who is the subject of an investigation or proceeding under]
2-11 Article V, [Section 1-a, of the] Texas Constitution, or other
2-12 person who performs the functions of the justice, judge, master,
2-13 magistrate, or retired or former judge.
2-14 (9) "Review tribunal" means a panel of seven justices
2-15 of the courts of appeal selected by lot by the chief justice of the
2-16 supreme court to review a recommendation of the commission for the
2-17 removal or retirement of a judge under Section 1-a(9), Article V,
2-18 Texas Constitution.
2-19 (10) "Sanction" means an order issued by the
2-20 commission under Section 1-a(8), Article V, Texas Constitution,
2-21 providing for a private or public admonition, warning, or reprimand
2-22 or requiring that a person obtain additional training or education.
2-23 (11) "Special court of review" means a panel of three
2-24 justices of the courts of appeal selected by lot by the chief
2-25 justice of the supreme court on petition to review a sanction
2-26 issued by the commission.
2-27 (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. Section 33.002(a), Government Code, is amended to
3-19 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:
3-27 (1) an explanation of the role of the commission;
4-1 (2) annual statistical information and examples of
4-2 [proper and] improper judicial conduct;
4-3 (3) an explanation of the commission's processes; and
4-4 (4) changes the commission considers necessary in its
4-5 rules or the applicable statutes or constitutional provisions.
4-6 (c) The commission shall distribute the report to the
4-7 governor, lieutenant governor, [and] speaker of the house of
4-8 representatives, and [shall cause] the editor of [report to be
4-9 printed in] the Texas Bar Journal.
4-10 (e) The Texas Bar Journal shall publish a report received
4-11 from the commission under Subsection (c).
4-12 SECTION 4. Subchapter A, Chapter 33, Government Code, is
4-13 amended by adding Section 33.006 to read as follows:
4-14 Sec. 33.006. IMMUNITY FROM LIABILITY. (a) This section
4-15 applies to:
4-16 (1) the commission;
4-17 (2) a member of the commission;
4-18 (3) the executive director of the commission;
4-19 (4) an employee of the commission;
4-20 (5) a special master appointed under Section 1-a(8),
4-21 Article V, Texas Constitution; and
4-22 (6) special counsel for the commission.
4-23 (b) A person to which this section applies is not liable for
4-24 an act or omission committed by the person within the scope of the
4-25 person's official duties.
4-26 (c) The immunity from liability provided by this section is
4-27 absolute and unqualified and extends to any action at law or in
5-1 equity.
5-2 SECTION 5. Section 33.021, Government Code, is amended to
5-3 read as follows:
5-4 Sec. 33.021. GENERAL POWERS OF COMMISSION. The commission
5-5 may:
5-6 (1) design and use a seal;
5-7 (2) employ persons that it considers necessary to
5-8 carry out the duties and powers of the commission [and special
5-9 masters];
5-10 (3) employ special counsel as it considers necessary;
5-11 (4) arrange for attendance of witnesses, including
5-12 those not subject to subpoena;
5-13 (5) arrange for and compensate expert witnesses and
5-14 reporters; and
5-15 (6) pay from its available funds the reasonably
5-16 necessary expenses of carrying out its duties under the
5-17 constitution, including providing compensation to special masters.
5-18 SECTION 6. Section 33.022, Government Code, is amended to
5-19 read as follows:
5-20 Sec. 33.022. INVESTIGATIONS AND FORMAL PROCEEDINGS
5-21 [COMPLAINANT'S AND JUDGE'S RIGHTS]. (a) The commission may
5-22 conduct a preliminary investigation of the circumstances
5-23 surrounding an allegation or appearance of misconduct or disability
5-24 of a judge to determine if the allegation or appearance is
5-25 unfounded or frivolous.
5-26 (b) If, after conducting a preliminary investigation under
5-27 this section, the commission determines that an allegation or
6-1 appearance of misconduct or disability is unfounded or frivolous,
6-2 the commission shall terminate the investigation.
6-3 (c) If, after conducting a preliminary investigation under
6-4 this section, the commission does not determine that an allegation
6-5 or appearance of misconduct or disability is unfounded or
6-6 frivolous, the commission:
6-7 (1) shall:
6-8 (A) conduct a full investigation of the
6-9 circumstances surrounding the allegation or appearance of
6-10 misconduct or disability; and
6-11 (B) notify the judge in writing of:
6-12 (i) the commencement of the investigation;
6-13 and
6-14 (ii) the nature of the allegation or
6-15 appearance of misconduct or disability being investigated; and
6-16 (2) may:
6-17 (A) request the judge to:
6-18 (i) submit a written response to the
6-19 allegation or appearance of misconduct or disability; or
6-20 (ii) appear informally before the
6-21 commission; or
6-22 (B) order the deposition of any person other
6-23 than the judge.
6-24 (d) The commission shall serve an order issued by the
6-25 commission under Subsection (c)(2)(B) on the person who is the
6-26 subject of the deposition and the judge who is the subject of the
6-27 investigation. The order must be served within a reasonable time
7-1 before the date of the deposition.
7-2 (e) The commission may file an application in a district
7-3 court to enforce an order issued by the commission under Subsection
7-4 (c)(2)(B).
7-5 (f) The commission shall notify the judge in writing of the
7-6 disposition of a full investigation conducted by the commission
7-7 under this section [In the conduct of an investigation the judge
7-8 shall be informed in writing that an investigation has commenced
7-9 and of the nature of the matters being investigated. At the
7-10 conclusion of the investigation, the commission shall determine
7-11 whether formal proceedings under Subsection (b) shall be had. The
7-12 complainant, if any, is entitled to appear before the commission at
7-13 any formal proceedings and give testimony regarding the matters
7-14 being investigated. If the commission decides no further
7-15 proceedings are warranted, the chairman of the commission shall so
7-16 notify the complainant, if any, and the judge in writing].
7-17 (g) [(b)] If after the investigation has been completed the
7-18 commission concludes that formal proceedings will be instituted,
7-19 the matter shall be entered in a docket to be kept for that purpose
7-20 and written notice of the institution of formal proceedings shall
7-21 be served on [issued to] the judge without delay. The proceedings
7-22 shall be entitled:
7-23 "Before the State Commission on Judicial Conduct Inquiry
7-24 Concerning a Judge, No. ____"
7-25 (h) [(c)] The notice shall specify in ordinary and concise
7-26 language the charges against the judge and the alleged facts on
7-27 which the charges are based and the specific standards [statute or
8-1 rule] contended to have been violated. [The written notice may
8-2 charge more than one violation, but each violation shall be charged
8-3 in a separate paragraph immediately followed by a statement of the
8-4 acts constituting the violation.] The judge is entitled to file a
8-5 written answer to the charges against the judge [him] not later
8-6 than the 15th day after the notice is served on the judge [him],
8-7 and the notice shall so advise the judge [him].
8-8 (i) [(d)] The notice shall be served on the judge by
8-9 personal service of a copy of the notice by a member of the
8-10 commission or by some person designated by the chairperson
8-11 [chairman]. The person serving the notice shall promptly notify
8-12 the clerk [commission] in writing of the date on which the notice
8-13 was served. If it appears to the chairperson [chairman] on
8-14 affidavit that, after reasonable effort during a period of 10 days,
8-15 personal service could not be had, service may be made by mailing
8-16 by registered or certified mail copies of the notice addressed to
8-17 the judge at the judge's [his] chambers or at the judge's [his]
8-18 last known residence in an [a blank] envelope marked "personal and
8-19 confidential." The date of mailing shall be entered in the docket.
8-20 (j) A [(e) In the conduct of investigations and formal
8-21 proceedings, a] judge at the judge's [his] request may elect to
8-22 have any hearing open to the public or to persons designated by the
8-23 judge. The right of a judge to an open hearing does not preclude
8-24 placing witnesses under the rule as provided by [Rule 267 of] the
8-25 Texas Rules of Civil Procedure.
8-26 (k) A judge is not entitled to a jury trial in formal
8-27 proceedings before a special master or the commission.
9-1 SECTION 7. Section 33.023, Government Code, is amended to
9-2 read as follows:
9-3 Sec. 33.023. PHYSICAL AND MENTAL INCAPACITY [EXAMINATION] OF
9-4 JUDGE. (a) In any investigation or proceeding that involves the
9-5 involuntary retirement of a judge because of physical or mental
9-6 incapacity to discharge the judge's [his] duty, the commission may
9-7 order [require] the judge to submit to a physical and mental
9-8 examination by one or more physicians selected and paid by the
9-9 commission.
9-10 (b) The commission shall give the judge written notice of
9-11 the examination not later than 10 days before the date of the
9-12 examination. The notice must include the physician's name and the
9-13 date, time, and place of the examination. The examination must be
9-14 in a city or town in which the judge permanently or temporarily
9-15 resides, or at a location in the state to which the judge consents.
9-16 (c) Each examining physician shall file a written report of
9-17 the examination with the commission and the report shall be
9-18 received as evidence without further formality. On request of the
9-19 judge or the judge's attorney, the commission shall give the judge
9-20 a copy of the report. The physician's oral or deposition testimony
9-21 concerning the report may be required by the commission or by
9-22 written demand of the judge.
9-23 (d) If a judge refuses to submit to a physical and mental
9-24 examination ordered by the commission under this section, the
9-25 commission may petition a district court for an order compelling
9-26 the judge to submit to the physical and mental examination.
9-27 SECTION 8. Section 33.024, Government Code, is amended to
10-1 read as follows:
10-2 Sec. 33.024. OATHS AND SUBPOENAS. In conducting an
10-3 investigation, [or] formal proceedings [proceeding], or proceedings
10-4 before a special court of review, a commission member, [or the]
10-5 special master, or member of a special court of review may:
10-6 (1) administer oaths;
10-7 (2) order and provide for inspection of books and
10-8 records; and
10-9 (3) issue a subpoena for attendance of a witness or
10-10 production of papers, books, accounts, documents, and testimony
10-11 relevant to the investigation or proceeding.
10-12 SECTION 9. Section 33.025, Government Code, is amended to
10-13 read as follows:
10-14 Sec. 33.025. ENFORCEMENT OF SUBPOENA [FAILURE TO OBEY
10-15 SUBPOENA]. (a) The commission may file an application in a
10-16 district court or, if appropriate, with a special master or special
10-17 court of review, to enforce a subpoena issued by the commission
10-18 under this chapter [If a person other than the judge refuses to
10-19 testify or obey a subpoena issued under this chapter, the
10-20 commission or the special master may petition a district court for
10-21 an order, or the special master may issue an order, compelling the
10-22 person to attend and testify or produce writings or other material
10-23 required by the subpoena. The order shall require the person to
10-24 appear before the court or special master at a specified time and
10-25 place to show cause for the failure to obey the subpoena. The
10-26 court or the special master shall serve a copy of the order on the
10-27 person].
11-1 (b) A special master or special court of review may enforce
11-2 by contempt a subpoena issued by the commission, the special
11-3 master, or the special court of review [If the court or the special
11-4 master finds that the subpoena was regularly issued, the court or
11-5 master shall order the person to appear before the commission or
11-6 master at a specified time and place to testify or satisfy the
11-7 requirements of the subpoena.]
11-8 [(c) Failure to obey the order of the court or the special
11-9 master shall be dealt with as contempt].
11-10 SECTION 10. Section 33.026, Government Code, is amended to
11-11 read as follows:
11-12 Sec. 33.026. WITNESS IMMUNITY. (a) In a proceeding or
11-13 deposition related to a proceeding before the commission, [or] a
11-14 special master, or a special court of review, the commission,
11-15 special [court or] master, or special court of review may compel a
11-16 person other than the judge to testify or produce evidence over the
11-17 person's claim of privilege against self-incrimination.
11-18 (b) A person compelled to testify over a proper claim of
11-19 privilege against self-incrimination is not subject to indictment
11-20 or prosecution for a matter or transaction about which the person
11-21 truthfully testifies or produces evidence.
11-22 (c) A special master has the same powers as a district judge
11-23 in matters of contempt and granting immunity.
11-24 SECTION 11. Section 33.027, Government Code, is amended to
11-25 read as follows:
11-26 Sec. 33.027. DISCOVERY [DEPOSITION]. (a) In formal
11-27 proceedings or in a proceeding before a special court of review,
12-1 discovery shall be conducted, to the extent practicable, in the
12-2 manner provided by the rules applicable to civil cases generally
12-3 [In a pending investigation or formal proceeding, the commission or
12-4 the special master may order the deposition of any person. The
12-5 deposition shall be taken in the form, and is subject to
12-6 limitations, prescribed in the order].
12-7 (b) On request, a special master, the commission, or a
12-8 special court of review shall expedite the discovery in formal
12-9 proceedings or in a proceeding before a special court of review [If
12-10 the judge and commission counsel do not stipulate the manner of
12-11 taking the deposition, the judge or counsel may petition a district
12-12 court for an order requiring the person to testify. If the person
12-13 resides or is present in the state, the judge or counsel shall file
12-14 the petition in the county in which the person resides or is
12-15 present. If the person does not reside or is not present in the
12-16 state, the judge or counsel shall file the petition in a county in
12-17 which the commission has an office. The petition must be entitled
12-18 "In the Matter of Proceeding of State Commission on Judicial
12-19 Conduct No. ____ (state number)" and, without identifying the
12-20 judge, must state generally:]
12-21 [(1) the nature of the pending matter;]
12-22 [(2) the deponent's name and residence;]
12-23 [(3) the directions, if any, of the commission or
12-24 special master; and]
12-25 [(4) a request for an order requiring the person to
12-26 appear and testify before a designated officer].
12-27 (c) The following may not be the subject of a discovery
13-1 request in formal proceedings or in a proceeding before a special
13-2 court of review:
13-3 (1) the discussions, thought processes, or individual
13-4 votes of members of the commission;
13-5 (2) the discussions or thought processes of employees
13-6 of the commission, including special counsel for the commission;
13-7 or
13-8 (3) the identity of a complainant or informant if the
13-9 person requests that the person's identity be kept confidential [On
13-10 the filing of the petition, the court may order the person to
13-11 appear and testify. The clerk shall issue a subpoena for the
13-12 deposition. The person taking the deposition shall take and return
13-13 it in the manner prescribed by law for depositions in civil
13-14 actions.]
13-15 [(d) Failure to obey the subpoena or an order connected with
13-16 the subpoena shall be dealt with as contempt].
13-17 SECTION 12. Section 33.028, Government Code, is amended to
13-18 read as follows:
13-19 Sec. 33.028. PROCESS AND ORDERS. (a) Process issued [in an
13-20 investigation or formal proceeding] under this chapter is valid
13-21 anywhere in the state.
13-22 (b) [On request of the commission, a commission member, or
13-23 an authorized representative of the commission, a sheriff or a
13-24 constable shall serve any process or execute lawful orders issued
13-25 by the commission.] A peace officer [commission member], an
13-26 employee of the commission [a special master], or any other [a]
13-27 person whom the commission, a special master, or a special court of
14-1 review designates may [also] serve process or execute a lawful
14-2 order of the commission, the special master, or special court of
14-3 review.
14-4 SECTION 13. Section 33.029, Government Code, is amended to
14-5 read as follows:
14-6 Sec. 33.029. WITNESSES' EXPENSES. A witness called to
14-7 testify by the commission other than an officer or employee of the
14-8 state or a political subdivision or court of the state is entitled
14-9 to the same mileage expenses and per diem as a witness before a
14-10 state grand jury. The commission shall pay these amounts from its
14-11 appropriated funds.
14-12 SECTION 14. Section 33.030, Government Code, is amended to
14-13 read as follows:
14-14 Sec. 33.030. ASSISTANCE TO COMMISSION, [AND] SPECIAL MASTER,
14-15 OR SPECIAL COURT OF REVIEW. (a) On request of the commission, the
14-16 attorney general shall act as its counsel generally or in a
14-17 particular investigation or proceeding.
14-18 (b) A state or local government body or department, an
14-19 officer or employee of a state or local government body, or an
14-20 official or agent of a state court shall cooperate with and give
14-21 reasonable assistance and information to the commission, an
14-22 authorized representative of the commission, [or] a special master,
14-23 or a special court of review concerning an investigation or
14-24 proceeding before the commission, special [or] master, or special
14-25 court of review.
14-26 SECTION 15. Section 33.031, Government Code, is amended to
14-27 read as follows:
15-1 Sec. 33.031. NO AWARD OF COSTS. Court [The commission, a
15-2 special master, or a district court may not award] costs or
15-3 attorney's fees may not be awarded in a proceeding under this
15-4 chapter.
15-5 SECTION 16. Section 33.032, Government Code, is amended to
15-6 read as follows:
15-7 Sec. 33.032. CONFIDENTIALITY OF PAPERS, RECORDS, AND
15-8 PROCEEDINGS. (a) Except as provided by Section 33.034 [33.034(d)]
15-9 and Subsections [Subsection] (c), (d), and (e) [of this section],
15-10 the papers filed with and proceedings before the commission are
15-11 confidential prior to the convening of a formal hearing.
15-12 (b) The formal hearing [, and all papers, records,
15-13 documents,] and any [other] evidence introduced during the formal
15-14 hearing, including papers, records, documents, and pleadings filed
15-15 with the clerk, shall be public on the convening of the formal
15-16 hearing.
15-17 (c) If the commission issues a public admonition, warning,
15-18 reprimand, or requirement that a person obtain additional training
15-19 or education, all papers, documents, evidence, and records
15-20 considered by the commission, or forwarded to the commission by its
15-21 staff, in the proceedings shall be public.
15-22 (d) The disciplinary record of a judge, including any
15-23 private sanctions, is admissible in a subsequent proceeding before
15-24 the commission, a special master, a special court of review, or a
15-25 review tribunal.
15-26 (e) On the filing of a written request by a judge, the
15-27 commission may release to the person designated in the request,
16-1 including the judge, the number, nature, and disposition of a
16-2 complaint filed against the judge with the commission, except that
16-3 the commission may refuse to release the identity of a complainant.
16-4 SECTION 17. Section 33.033, Government Code, is amended to
16-5 read as follows:
16-6 Sec. 33.033. NOTIFICATION TO COMPLAINANT. (a) The
16-7 commission shall promptly notify a complainant [of judicial
16-8 conduct] of the disposition of the complaint.
16-9 (b) The communication shall inform the complainant that:
16-10 (1) the complaint [has no basis and] has been
16-11 dismissed;
16-12 (2) appropriate action has been taken, the nature of
16-13 which will not be disclosed unless disclosure is authorized under
16-14 Section 33.032; [or]
16-15 (3) a public sanction has been issued by the
16-16 commission; or
16-17 (4) formal proceedings have been instituted.
16-18 (c) The communication may not contain the name of a judge
16-19 unless a public sanction has been issued by the commission or
16-20 formal proceedings have been instituted.
16-21 (d) If a public sanction has been issued by the commission,
16-22 the communication must include a copy of the public sanction.
16-23 SECTION 18. Sections 33.034(a), (d), (e), (f), and (h),
16-24 Government Code, are amended to read as follows:
16-25 (a) A judge who receives from the commission any type of
16-26 sanction is entitled to a review of the commission's decision as
16-27 provided by this section. This section does not apply to a
17-1 decision by the commission to institute formal [removal]
17-2 proceedings.
17-3 (d) Within 15 days after the appointment of the court of
17-4 review, the commission shall file with the clerk [the petitioner
17-5 and each justice on the court] a charging document that includes a
17-6 copy of the sanction issued and any additional charges to be
17-7 considered in the de novo proceeding [containing the commission's
17-8 specific findings against the judge and the papers, documents,
17-9 records, and evidence on which the commission based its decision].
17-10 The charging document is [Those documents are] public on its [on
17-11 their] filing with the clerk [court]. On receipt of the filing of
17-12 the charging document, the clerk shall send the charging document
17-13 to the judge who is the subject of the document and to each justice
17-14 on the court of review.
17-15 (e) The review by the court under this section is by trial
17-16 de novo as that term is used in the appeal of cases from justice to
17-17 county court. Any hearings of the court shall be public and shall
17-18 be held at the location [or locations] determined by the court.
17-19 Any evidence introduced during a hearing, including papers,
17-20 records, documents, and pleadings filed with the clerk in the
17-21 proceedings, is public.
17-22 (f) Except as otherwise provided by this section, the
17-23 procedure for the review is governed to the extent practicable by
17-24 the rules of law, evidence, and procedure that apply to the trial
17-25 of civil actions generally.
17-26 (h) Within 30 days after the date on which the charging
17-27 document is filed with the clerk [court], the court shall conduct a
18-1 hearing on the charging document. The court may, if good cause is
18-2 shown, grant one or more continuances not to exceed a total of 30
18-3 days [The commission may employ a special counsel to represent the
18-4 commission at the hearing]. Within 60 days after the hearing, the
18-5 court, in its discretion, shall issue a decision as to the proper
18-6 disposition of the appeal.
18-7 SECTION 19. (a) Except as provided by Subsection (b) of
18-8 this section, the change in law made by this Act applies only to an
18-9 investigation or proceeding under Chapter 33, Government Code, as
18-10 amended by this Act, instituted on or after the effective date of
18-11 this Act.
18-12 (b) The change in law made by Section 4 of this Act applies
18-13 only to a cause of action that accrues on or after the effective
18-14 date of this Act. An action that accrued before the effective date
18-15 of this Act is governed by the law applicable to the action
18-16 immediately before the effective date of this Act, and that law is
18-17 continued in effect for that purpose.
18-18 SECTION 20. The importance of this legislation and the
18-19 crowded condition of the calendars in both houses create an
18-20 emergency and an imperative public necessity that the
18-21 constitutional rule requiring bills to be read on three several
18-22 days in each house be suspended, and this rule is hereby suspended,
18-23 and that this Act take effect and be in force from and after its
18-24 passage, and it is so enacted.