By Gallego H.B. No. 2886
77R8383 YDB-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the assignment of certain retired or former judges as
1-3 visiting judges.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 74.003, Government Code, is amended by
1-6 amending Subsection (b) and adding Subsections (f) and (g) to read
1-7 as follows:
1-8 (b) The chief justice of the supreme court may assign a
1-9 qualified retired justice or judge of the supreme court, of the
1-10 court of criminal appeals, or of a court of appeals to a court of
1-11 appeals for active service regardless of whether a vacancy exists
1-12 in the court to which the justice is assigned. To be eligible for
1-13 assignment under this subsection, a retired justice or judge must:
1-14 (1) have served as an active justice or judge for at
1-15 least 96 months in a district, statutory probate, statutory county,
1-16 or appellate court, including at least 48 months in an appellate
1-17 court;
1-18 (2) not have been removed from office;
1-19 (3) certify under oath to the chief justice of the
1-20 supreme court, on a form prescribed by the chief justice, that the
1-21 justice or judge:
1-22 (A) has never been publicly reprimanded or
1-23 censured by the State Commission on Judicial Conduct; and
1-24 (B) did not resign or retire from office after
2-1 the State Commission on Judicial Conduct notified the justice or
2-2 judge of the commencement of a full investigation into an
2-3 allegation or appearance of misconduct or disability of the justice
2-4 or judge as provided in Section 33.022 and before the final
2-5 disposition of that investigation or if the justice or judge did
2-6 resign from office under circumstances described by this paragraph,
2-7 the justice or judge was not publicly reprimanded or censured as a
2-8 result of the investigation;
2-9 (4) annually demonstrate that the justice or judge has
2-10 completed in the past state fiscal year the educational
2-11 requirements for active appellate court justices or judges; and
2-12 (5) certify to the chief justice of the supreme court
2-13 a willingness not to appear and plead as an attorney in any court
2-14 in this state for a period of two years.
2-15 (f) For the purposes of Subsection (b)(1), a month of
2-16 service is calculated as a calendar month or a portion of a
2-17 calendar month in which a justice or judge was authorized by
2-18 election or appointment to preside.
2-19 (g) Subsection (b)(1) does not apply to a retired justice of
2-20 the supreme court.
2-21 SECTION 2. Section 74.053, Government Code, is amended to
2-22 read as follows:
2-23 Sec. 74.053. OBJECTION TO [ASSIGNED] JUDGE ASSIGNED TO A
2-24 TRIAL COURT. (a) When a judge is assigned to a trial court under
2-25 this chapter:
2-26 (1) the order of assignment must state whether the
2-27 judge is an active, former, or retired judge; and
3-1 (2) the presiding judge shall, if it is reasonable and
3-2 practicable and if time permits, give notice of the assignment to
3-3 each attorney representing a party to the case that is to be heard
3-4 in whole or part by the assigned judge.
3-5 (b) If a party to a civil case files a timely objection to
3-6 the assignment, the judge shall not hear the case. Except as
3-7 provided by Subsection (d), each party to the case is only entitled
3-8 to one objection under this section for that case. A party's
3-9 entitlement to an objection under this section is not affected by
3-10 the filing of an objection by another party to the case.
3-11 (c) An objection under this section must be filed not later
3-12 than the seventh day after the date that the party receives actual
3-13 notice of the assignment or before the date that the first hearing
3-14 or trial, including pretrial hearings, commences, whichever date
3-15 occurs earlier. The presiding judge may extend the time to file an
3-16 objection under this section on written motion by a party who
3-17 demonstrates good cause [over which the assigned judge is to
3-18 preside].
3-19 (d) An assigned [A former] judge or justice who was defeated
3-20 in the last primary or general election for which the judge or
3-21 justice was a candidate for the judicial office held by the judge
3-22 or justice [not a retired judge] may not sit in a case if either
3-23 party objects to the judge or justice.
3-24 (e) For purposes of this section, notice of an assignment
3-25 may be given and an objection to an assignment may be filed by
3-26 electronic mail.
3-27 SECTION 3. Section 74.055, Government Code, is amended by
4-1 amending Subsections (c) and (e) and adding Subsections (f) and (g)
4-2 to read as follows:
4-3 (c) To be eligible to be named on the list, a retired or
4-4 former judge must:
4-5 (1) have served as an active [a] judge for at least 96
4-6 [48] months in a district, statutory probate, statutory county, or
4-7 appellate court;
4-8 (2) have developed substantial experience in the
4-9 judge's area of specialty;
4-10 (3) not have been removed from office;
4-11 (4) certify under oath to each [the] presiding judge,
4-12 on a form prescribed by the state board of regional judges, that
4-13 the judge:
4-14 (A) has never been publicly reprimanded or
4-15 censured by the State Commission on Judicial Conduct; and
4-16 (B) did not resign or retire from office after
4-17 [having received notice that formal proceedings by] the State
4-18 Commission on Judicial Conduct notified the judge of the
4-19 commencement of a full investigation into an allegation or
4-20 appearance of misconduct or disability of the judge [had been
4-21 instituted] as provided in Section 33.022 and before the final
4-22 disposition of that investigation or if the judge did resign from
4-23 office under circumstances described by this paragraph, the judge
4-24 was not publicly reprimanded or censured as a result of the
4-25 investigation [the proceedings];
4-26 (5) annually demonstrate that the judge has completed
4-27 in the past state fiscal [calendar] year the educational
5-1 requirements for active district, statutory probate, and statutory
5-2 county court judges; and
5-3 (6) certify to the presiding judge a willingness not
5-4 to appear and plead as an attorney in any court in this state for a
5-5 period of two years.
5-6 (e) For purposes of Subsection (c)(1), a month of service is
5-7 calculated as a calendar month or a portion of a calendar month in
5-8 which a judge was authorized by election or appointment [by the
5-9 governor] to preside.
5-10 (f) A former or retired judge is ineligible to be named on
5-11 the list if the former or retired judge is identified in a public
5-12 statement issued by the State Commission on Judicial Conduct as
5-13 having resigned or retired from office in lieu of discipline.
5-14 (g) A former or retired judge named on the list shall
5-15 immediately notify the presiding judge of a full investigation by
5-16 the State Commission on Judicial Conduct into an allegation or
5-17 appearance of misconduct or disability by the judge. A judge who
5-18 does not notify the presiding judge of an investigation as required
5-19 by this subsection is ineligible to be named on the list.
5-20 SECTION 4. Section 75.551, Government Code, is amended to
5-21 read as follows:
5-22 Sec. 75.551. OBJECTION TO JUDGE OR JUSTICE ASSIGNED TO AN
5-23 APPELLATE COURT. (a) When a judge or justice is assigned to an
5-24 appellate court under this chapter or Chapter 74:
5-25 (1) the order of assignment must state whether the
5-26 judge or justice is an active, former, retired, or senior judge or
5-27 justice; and
6-1 (2) [,] the person who assigns the judge or justice
6-2 shall, if it is reasonable and practicable and if time permits,
6-3 give notice of the assignment to each attorney representing a party
6-4 to the case that is to be heard in whole or part by the assigned
6-5 judge or justice.
6-6 (b) A judge or justice assigned to an appellate court may
6-7 not hear a civil case if a party to the case files a timely
6-8 objection to the assignment of the judge or justice. Except as
6-9 provided by Subsection (d), [:]
6-10 [(1)] each party to the case is entitled to only one
6-11 objection under this section for that case in the appellate court[;
6-12 and]
6-13 [(2) a party to an appeal may not in the same case
6-14 object in an appellate court to the assignment of a judge or
6-15 justice under Section 74.053(b) and under this subsection]. A
6-16 party's entitlement to an objection under this section is not
6-17 affected by the filing of an objection by another party to the
6-18 case.
6-19 (c) An objection under this section must be filed not later
6-20 than the seventh day after the date that the party receives actual
6-21 notice of the assignment or before the date that the case is
6-22 submitted to the court, whichever date occurs earlier. The court
6-23 may extend the time to file an objection under this section on a
6-24 showing of good cause [first hearing in which the assigned judge or
6-25 justice is assigned to sit].
6-26 (d) A [former] judge or justice who was defeated in the last
6-27 primary or general election for which the judge or justice was a
7-1 candidate for the judicial office held by the judge or justice [not
7-2 a retired judge or justice] may not sit in an appellate case if
7-3 either party objects to the judge or justice.
7-4 (e) For purposes of this section, notice of an assignment
7-5 may be given and an objection to an assignment may be filed by
7-6 electronic mail.
7-7 SECTION 5. Section 74.055(d), Government Code, is repealed.
7-8 SECTION 6. (a) The change in law made by Sections 2 and 4
7-9 of this Act applies only to a case that is pending or commences on
7-10 or after the effective date of this Act.
7-11 (b) Except as provided by Subsection (c) of this section,
7-12 the change in law made by Sections 1, 3, and 5 of this Act applies
7-13 only to the assignment of a judge or justice under Chapter 74 or
7-14 75, Government Code, made on or after the effective date of this
7-15 Act. An assignment made before the effective date of this Act is
7-16 governed by the law in effect at the time the assignment is made,
7-17 and that law is continued in effect for that purpose.
7-18 (c) The change in law made by Sections 1, 3, and 5 of this
7-19 Act does not apply to a person who immediately before the effective
7-20 date of this Act meets the eligibility requirements to be assigned
7-21 as a visiting judge by the chief justice of the supreme court under
7-22 Section 74.003(b) or Chapter 75, Government Code, or to be named on
7-23 a list of retired and former judges under Section 74.055(c),
7-24 Government Code, other than the certification requirement under
7-25 Section 74.055(c)(6), Government Code, and the former law is
7-26 continued in effect for determining that person's eligibility for
7-27 those purposes.
8-1 SECTION 7. This Act takes effect September 1, 2001.