By Gallego H.B. No. 3447
77R7517 JMC-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the functions of the State Commission on Judicial
1-3 Conduct.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 33.001, Government Code, is amended by
1-6 amending Subsections (b) and (c) and adding Subsection (d) to read
1-7 as follows:
1-8 (b) For purposes of Section 1-a, Article V, Texas
1-9 Constitution, "wilful or persistent conduct that is clearly
1-10 inconsistent with the proper performance of a judge's duties"
1-11 includes:
1-12 (1) wilful, persistent, and unjustifiable failure to
1-13 timely execute the business of the court, considering the quantity
1-14 and complexity of the business;
1-15 (2) wilful violation of a provision of the Texas penal
1-16 statutes or the Code of Judicial Conduct;
1-17 (3) persistent or wilful violation of the rules
1-18 promulgated by the supreme court; [or]
1-19 (4) incompetence in the performance of the duties of
1-20 the office;
1-21 (5) failure to cooperate with the commission; or
1-22 (6) violation of any provision of a voluntary
1-23 agreement to resign from judicial office in lieu of disciplinary
1-24 action by the commission.
2-1 (c) The definitions [definition] provided by Subsections
2-2 [Subsection] (b) and (d) are [is] not exclusive.
2-3 (d) For purposes of Subdivision (6), Section 1-a, Article V,
2-4 Texas Constitution, a misdemeanor involving official misconduct
2-5 includes a misdemeanor involving an act relating to a judicial
2-6 office or a misdemeanor involving an act involving moral turpitude.
2-7 SECTION 2. Section 33.002, Government Code, is amended by
2-8 adding Subsection (c) to read as follows:
2-9 (c) Appointments to the commission shall be made without
2-10 regard to the race, color, disability, sex, religion, age, or
2-11 national origin of the appointees.
2-12 SECTION 3. Subchapter A, Chapter 33, Government Code, is
2-13 amended by adding Section 33.0032 to read as follows:
2-14 Sec. 33.0032. CONFLICT OF INTEREST. (a) In this section,
2-15 "Texas trade association" means a cooperative and voluntarily
2-16 joined association of business or professional competitors in this
2-17 state designed to assist its members and its industry or profession
2-18 in dealing with mutual business or professional problems and in
2-19 promoting their common interest.
2-20 (b) A person may not be a commission employee employed in a
2-21 "bona fide executive, administrative, or professional capacity," as
2-22 that phrase is used for purposes of establishing an exemption to
2-23 the overtime provisions of the federal Fair Labor Standards Act of
2-24 1938 (29 U.S.C. Section 201 et seq.), and its subsequent
2-25 amendments, if:
2-26 (1) the person is an officer, employee, or paid
2-27 consultant of a Texas trade association the members of which are
3-1 subject to regulation by the commission; or
3-2 (2) the person's spouse is an officer, manager, or
3-3 paid consultant of a Texas trade association the members of which
3-4 are subject to regulation by the commission.
3-5 (c) A person may not act as the general counsel to the
3-6 commission if the person is required to register as a lobbyist
3-7 under Chapter 305, Government Code, because of the person's
3-8 activities for compensation on behalf of a profession related to
3-9 the operation of the commission.
3-10 SECTION 4. Section 33.004(c), Government Code, is amended to
3-11 read as follows:
3-12 (c) A special master who is a retired judge of a district
3-13 court or the court of criminal appeals or a retired justice of a
3-14 court of appeals or the supreme court is entitled to compensation
3-15 in the same manner as provided by Section 74.061. For purposes of
3-16 this subsection, the term "court" in Section 74.061(c) means the
3-17 district court in the county in which formal proceedings are heard
3-18 by the special master [a per diem of $25 for each day or part of a
3-19 day that the person spends in the performance of the duties of
3-20 special master. In addition, the special master is entitled to an
3-21 amount equal to the difference between the retirement benefits that
3-22 the person receives as a retired judge or justice and the
3-23 compensation that the state pays an active judge or justice of the
3-24 court from which the person retired. The per diem and compensation
3-25 under this subsection is in addition to the retirement benefits to
3-26 which the person is entitled].
3-27 SECTION 5. Subchapter A, Chapter 33, Government Code, is
4-1 amended by adding Sections 33.0041-33.0046 to read as follows:
4-2 Sec. 33.0041. REMOVAL OF COMMISSION MEMBER; NOTIFICATION
4-3 PROCEDURES. If the executive director has knowledge that a
4-4 potential ground for removal of a commission member exists, the
4-5 executive director shall notify the presiding officer of the
4-6 commission of the potential ground. The presiding officer shall
4-7 then notify the governor, the supreme court, the state bar, and the
4-8 attorney general that a potential ground for removal exists. If
4-9 the potential ground for removal involves the presiding officer,
4-10 the executive director shall notify the next highest ranking
4-11 officer of the commission, who shall then notify the governor, the
4-12 supreme court, the state bar, and the attorney general that a
4-13 potential ground for removal exists.
4-14 Sec. 33.0042. REQUIREMENTS FOR OFFICE OR EMPLOYMENT:
4-15 INFORMATION. The executive director or the executive director's
4-16 designee shall provide to members of the commission and to agency
4-17 employees, as often as necessary, information regarding the
4-18 requirements for office or employment under this chapter and
4-19 Section 1-a, Article V, Texas Constitution, including information
4-20 regarding a person's responsibilities under applicable laws
4-21 relating to standards of conduct for state officers or employees.
4-22 Sec. 33.0043. COMMISSION MEMBER TRAINING. (a) A person who
4-23 is appointed to and qualifies for office as a member of the
4-24 commission shall complete a training program that complies with
4-25 this section.
4-26 (b) The training program must provide the person with
4-27 information regarding:
5-1 (1) the legislation that created the commission;
5-2 (2) the programs operated by the commission;
5-3 (3) the role and functions of the commission;
5-4 (4) the rules of the commission with an emphasis on
5-5 the rules that relate to disciplinary and investigatory authority;
5-6 (5) the current budget for the commission;
5-7 (6) the results of the most recent formal audit of the
5-8 commission;
5-9 (7) the requirements of laws relating to public
5-10 officials, including conflict-of-interest laws; and
5-11 (8) any applicable ethics policies adopted by the
5-12 commission or the Texas Ethics Commission.
5-13 (c) A person appointed to the commission is entitled to
5-14 reimbursement, as provided by the General Appropriations Act, for
5-15 the travel expenses incurred in attending the training program
5-16 regardless of whether the attendance at the program occurs before
5-17 or after the person qualifies for office.
5-18 Sec. 33.0044. DIVISION OF RESPONSIBILITY. The commission
5-19 shall develop and implement policies that clearly separate the
5-20 policy-making responsibilities of the commission and the management
5-21 responsibilities of the executive director and staff of the
5-22 commission.
5-23 Sec. 33.0045. EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEMENT.
5-24 (a) The executive director or the executive director's designee
5-25 shall prepare and maintain a written policy statement that
5-26 implements a program of equal employment opportunity to ensure that
5-27 all personnel decisions are made without regard to race, color,
6-1 disability, sex, religion, age, or national origin.
6-2 (b) The policy statement must include:
6-3 (1) personnel policies, including policies relating to
6-4 recruitment, evaluation, selection, training, and promotion of
6-5 personnel, that show the intent of the commission to avoid the
6-6 unlawful employment practices described by Chapter 21, Labor Code;
6-7 and
6-8 (2) an analysis of the extent to which the composition
6-9 of the commission's personnel is in accordance with state and
6-10 federal law and a description of reasonable methods to achieve
6-11 compliance with state and federal law.
6-12 (c) The policy statement must:
6-13 (1) be updated annually;
6-14 (2) be reviewed by the state Commission on Human
6-15 Rights for compliance with Subsection (b)(1); and
6-16 (3) be filed with the governor's office.
6-17 Sec. 33.0046. STATE EMPLOYEE INCENTIVE PROGRAM: INFORMATION
6-18 AND TRAINING. The executive director or the executive director's
6-19 designee shall provide to agency employees information and training
6-20 on the benefits and methods of participation in the state employee
6-21 incentive program.
6-22 SECTION 6. Section 33.005(e), Government Code, is amended to
6-23 read as follows:
6-24 (e) The Texas Bar Journal shall publish public statements
6-25 and summaries of sanctions issued by [a report received from] the
6-26 commission [under Subsection (c)].
6-27 SECTION 7. Section 33.006(a), Government Code, is amended to
7-1 read as follows:
7-2 (a) This section applies to:
7-3 (1) the commission;
7-4 (2) a member of the commission;
7-5 (3) the executive director of the commission;
7-6 (4) an employee of the commission;
7-7 (5) a special master appointed under Section 1-a(8),
7-8 Article V, Texas Constitution; [and]
7-9 (6) special counsel for the commission and any person
7-10 employed by the special counsel; and
7-11 (7) any other person appointed by the commission to
7-12 assist the commission in performing its duties.
7-13 SECTION 8. Subchapter A, Chapter 33, Government Code, is
7-14 amended by adding Sections 33.007-33.009 to read as follows:
7-15 Sec. 33.007. DISTRIBUTION OF MATERIALS TO JUDGES AND THE
7-16 PUBLIC. (a) The commission shall develop and distribute
7-17 plain-language materials as described by this section to judges and
7-18 the public.
7-19 (b) The materials must include a description of:
7-20 (1) the commission's responsibilities;
7-21 (2) the types of conduct that constitute judicial
7-22 misconduct;
7-23 (3) the types of sanctions issued by the commission,
7-24 including orders of additional education; and
7-25 (4) the commission's policies and procedures relating
7-26 to complaint investigation and resolution.
7-27 (c) The materials shall be provided in English and Spanish.
8-1 (d) The commission shall provide to each person filing a
8-2 complaint with the commission the materials described by this
8-3 section.
8-4 (e) The commission shall adopt a policy to effectively
8-5 distribute materials as required by this section.
8-6 Sec. 33.008. PUBLICATION OF SANCTIONS. The Texas Bar Journal
8-7 shall periodically publish sanctions and orders of additional
8-8 education issued by the commission.
8-9 Sec. 33.009. JUDICIAL MISCONDUCT INFORMATION. The commission
8-10 shall routinely provide to entities that provide education to
8-11 judges information relating to judicial misconduct resulting in
8-12 sanctions or orders of additional education issued by the
8-13 commission. The commission shall categorize the information by
8-14 level of judge and type of misconduct.
8-15 SECTION 9. Chapter 33, Government Code, is amended by
8-16 amending the heading of Subchapter B to read as follows:
8-17 SUBCHAPTER B. POWERS AND DUTIES
8-18 SECTION 10. Section 33.021, Government Code, is amended to
8-19 read as follows:
8-20 Sec. 33.021. GENERAL POWERS OF COMMISSION. The commission
8-21 may:
8-22 (1) design and use a seal;
8-23 (2) employ persons that it considers necessary to
8-24 carry out the duties and powers of the commission;
8-25 (3) employ special counsel as it considers necessary;
8-26 (4) arrange for attendance of witnesses[, including
8-27 those not subject to subpoena];
9-1 (5) arrange for and compensate expert witnesses and
9-2 reporters; and
9-3 (6) pay from its available funds the reasonably
9-4 necessary expenses of carrying out its duties under the
9-5 constitution, including providing compensation to special masters.
9-6 SECTION 11. Subchapter B, Chapter 33, Government Code, is
9-7 amended by adding Section 33.0211 to read as follows:
9-8 Sec. 33.0211. COMPLAINTS. (a) The commission shall maintain
9-9 a file on each written complaint filed with the commission. The
9-10 file must include:
9-11 (1) the name of the person who filed the complaint;
9-12 (2) the date the complaint is received by the
9-13 commission;
9-14 (3) the subject matter of the complaint;
9-15 (4) the name of each person contacted in relation to
9-16 the complaint;
9-17 (5) a summary of the results of the review or
9-18 investigation of the complaint; and
9-19 (6) an explanation of the reason the file was closed,
9-20 if the commission closed the file without taking action other than
9-21 to investigate the complaint.
9-22 (b) The commission, at least quarterly until final
9-23 disposition of the complaint, shall notify the person filing the
9-24 complaint of the status of the investigation unless the notice
9-25 would jeopardize an undercover investigation.
9-26 SECTION 12. Section 33.022, Government Code, is amended by
9-27 amending Subsections (c) and (i) and adding Subsection (l) to read
10-1 as follows:
10-2 (c) If, after conducting a preliminary investigation under
10-3 this section, the commission does not determine that an allegation
10-4 or appearance of misconduct or disability is unfounded or
10-5 frivolous, the commission:
10-6 (1) shall:
10-7 (A) conduct a full investigation of the
10-8 circumstances surrounding the allegation or appearance of
10-9 misconduct or disability; and
10-10 (B) notify the judge in writing of:
10-11 (i) the commencement of the investigation;
10-12 and
10-13 (ii) the nature of the allegation or
10-14 appearance of misconduct or disability being investigated; and
10-15 (2) may:
10-16 (A) request the judge to:
10-17 (i) submit a written response to the
10-18 allegation or appearance of misconduct or disability; or
10-19 (ii) appear informally before the
10-20 commission; [or]
10-21 (B) order the deposition of any person other
10-22 than the judge; or
10-23 (C) request the complainant to appear informally
10-24 before the commission.
10-25 (i) The notice shall be served on the judge or the judge's
10-26 attorney of record by personal service of a copy of the notice by a
10-27 [member of the commission or by some] person designated by the
11-1 chairperson. The person serving the notice shall promptly notify
11-2 the clerk in writing of the date on which the notice was served. If
11-3 it appears to the chairperson on affidavit that, after reasonable
11-4 effort during a period of 10 days, personal service could not be
11-5 had, service may be made by mailing by registered or certified mail
11-6 copies of the notice addressed to the judge at the judge's chambers
11-7 or at the judge's last known residence in an envelope marked
11-8 "personal and confidential." The date of mailing shall be entered
11-9 in the docket.
11-10 (l) The commission shall adopt a policy that provides
11-11 procedures for hearing from judges and complainants appearing
11-12 before the commission. The policy shall ensure the confidentiality
11-13 of a complainant's identity as provided under Section 33.0321.
11-14 SECTION 13. Sections 33.023(a) and (b), Government Code, are
11-15 amended to read as follows:
11-16 (a) In any investigation or proceeding that involves the
11-17 [involuntary retirement of a judge because of] physical or mental
11-18 incapacity of a judge [to discharge the judge's duty], the
11-19 commission may order the judge to submit to a physical or mental
11-20 examination by one or more qualified physicians or a mental
11-21 examination by one or more qualified psychologists selected and
11-22 paid for by the commission.
11-23 (b) The commission shall give the judge written notice of
11-24 the examination not later than 10 days before the date of the
11-25 examination. The notice must include the physician's name and the
11-26 date, time, and place of the examination. [The examination must be
11-27 in a city or town in which the judge permanently or temporarily
12-1 resides, or at a location in the state to which the judge
12-2 consents.]
12-3 SECTION 14. Section 33.032, Government Code, is amended by
12-4 amending Subsections (a), (b), and (c) and adding Subsections (f)
12-5 and (g) to read as follows:
12-6 (a) Except as otherwise provided by this section and Section
12-7 33.034 [and Subsections (c), (d), and (e)], the papers filed with
12-8 and proceedings before the commission are confidential prior to the
12-9 filing of formal charges [convening of a formal hearing].
12-10 (b) The formal hearing and any evidence introduced during
12-11 the formal hearing, including papers, records, documents, and
12-12 pleadings filed with the clerk, shall be public [on the convening
12-13 of the formal hearing].
12-14 (c) On issuance of [If the commission issues] a public
12-15 admonition, warning, reprimand, or public requirement that a person
12-16 obtain additional training or education by the commission, the
12-17 record of the informal appearance and the [all papers,] documents
12-18 presented to [, evidence, and records considered by] the commission
12-19 during the informal appearance that are not protected by
12-20 attorney-client or work product privilege [, or forwarded to the
12-21 commission by its staff, in the proceedings] shall be public.
12-22 (f) If the commission issues an order suspending a judge who
12-23 has been indicted for a criminal offense, the order, any withdrawal
12-24 of the order, and all records and proceedings related to the
12-25 suspension shall be public.
12-26 (g) The commission may release to the Office of the Chief
12-27 Disciplinary Counsel of the State Bar of Texas information
13-1 indicating that an attorney, including a judge who is acting in the
13-2 judge's capacity as an attorney, has violated the Texas
13-3 Disciplinary Rules of Professional Conduct.
13-4 SECTION 15. Subchapter B, Chapter 33, Government Code, is
13-5 amended by adding Section 33.0321 to read as follows:
13-6 Sec. 33.0321. CONFIDENTIALITY OF COMPLAINANT'S IDENTITY. On
13-7 the request of a complainant, the commission may keep the
13-8 complainant's identity confidential.
13-9 SECTION 16. Section 33.033, Government Code, is amended by
13-10 amending Subsections (a) and (b) and adding Subsection (e) to read
13-11 as follows:
13-12 (a) The commission shall promptly notify a complainant of
13-13 the disposition of the case [complaint].
13-14 (b) The communication shall inform the complainant that:
13-15 (1) the case [complaint] has been dismissed;
13-16 (2) a private sanction or order of additional
13-17 education has been issued by the commission [appropriate action has
13-18 been taken, the nature of which will not be disclosed unless
13-19 disclosure is authorized under Section 33.032];
13-20 (3) a public sanction has been issued by the
13-21 commission; [or]
13-22 (4) formal proceedings have been instituted; or
13-23 (5) a judge has resigned from judicial office in lieu
13-24 of disciplinary action by the commission.
13-25 (e) If the complaint is dismissed by the commission, the
13-26 commission shall include in the notification under Subsection (a):
13-27 (1) an explanation of each reason for the dismissal;
14-1 and
14-2 (2) information relating to requesting reconsideration
14-3 of the dismissed complaint as provided by Sections 33.035(a) and
14-4 (f).
14-5 SECTION 17. Section 33.034(h), Government Code, is amended to
14-6 read as follows:
14-7 (h) Within 30 days after the date on which the charging
14-8 document is filed with the clerk, the court shall conduct a hearing
14-9 on the charging document. The court may, if good cause is shown,
14-10 grant one or more continuances not to exceed a total of 60 [30]
14-11 days. Within 60 days after the hearing, the court[, in its
14-12 discretion,] shall issue a decision as to the proper disposition of
14-13 the appeal.
14-14 SECTION 18. Subchapter B, Chapter 33, Government Code, is
14-15 amended by adding Sections 33.035-33.037 to read as follows:
14-16 Sec. 33.035. RECONSIDERATION OF COMPLAINT. (a) A
14-17 complainant may request reconsideration of a dismissed complaint
14-18 if, not later than the 30th day after the date of the communication
14-19 informing the complainant of the dismissal, the complainant
14-20 provides additional evidence of misconduct committed by the judge.
14-21 (b) The commission shall deny a request for reconsideration
14-22 if the complainant does not meet the requirements under Subsection
14-23 (a). The commission shall notify the complainant of the denial in
14-24 writing.
14-25 (c) The commission shall grant a request for reconsideration
14-26 if the complainant meets the requirements under Subsection (a).
14-27 After granting a request, the commission shall vote to:
15-1 (1) affirm the original decision to dismiss the
15-2 complaint; or
15-3 (2) reopen the complaint.
15-4 (d) The commission shall notify the complainant of the
15-5 results of the commission's vote under Subsection (c) in writing.
15-6 (e) The commission shall conduct an appropriate
15-7 investigation of a complaint reopened under Subsection (c)(2).
15-8 The investigation shall be assigned to commission staff who were
15-9 not assigned to the original investigation.
15-10 (f) A complainant may request reconsideration of a dismissed
15-11 complaint under this section only once.
15-12 Sec. 33.036. CERTAIN DISCLOSURE OF INFORMATION. (a) To
15-13 protect the public interest, the commission may disclose
15-14 information relating to an investigation or proceeding under this
15-15 chapter to:
15-16 (1) a law enforcement agency;
15-17 (2) a public official who is authorized or required by
15-18 law to appoint a person to serve as a judge;
15-19 (3) the supreme court; or
15-20 (4) an entity that provides commission-ordered
15-21 education to judges.
15-22 (b) Information may be disclosed under this section only to
15-23 the extent necessary for the recipient of the information to
15-24 perform an official duty or function.
15-25 Sec. 33.037. AUTOMATIC REMOVAL. A judge is automatically
15-26 removed from the judge's office if the judge is convicted of or is
15-27 granted deferred adjudication for:
16-1 (1) a felony; or
16-2 (2) a misdemeanor involving official misconduct.
16-3 SECTION 19. Subchapter F, Chapter 411, Government Code, is
16-4 amended by adding Section 411.137 to read as follows:
16-5 Sec. 411.137. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION:
16-6 STATE COMMISSION ON JUDICIAL CONDUCT. (a) The State Commission on
16-7 Judicial Conduct is entitled to obtain from the department criminal
16-8 history record information maintained by the department that
16-9 relates to a person who is:
16-10 (1) a judge who is the subject of an investigation or
16-11 proceeding under Chapter 33; or
16-12 (2) the complainant or a witness in an investigation
16-13 or a proceeding under Chapter 33.
16-14 (b) Information received by the commission is confidential
16-15 and may be disseminated only in an investigation or proceeding
16-16 conducted by the commission.
16-17 (c) The commission shall destroy criminal history record
16-18 information obtained under this section promptly after a final
16-19 determination is made in the matter for which the information was
16-20 obtained.
16-21 SECTION 20. (a) Not later than January 1, 2002, the State
16-22 Commission on Judicial Conduct shall:
16-23 (1) develop plain-language materials and adopt a
16-24 policy to effectively distribute the materials as required by
16-25 Section 33.007, Government Code, as added by this Act; and
16-26 (2) adopt a policy that provides hearing procedures as
16-27 required by Section 33.022(l), Government Code, as added by this
17-1 Act.
17-2 (b) Section 33.032, Government Code, as amended by this Act,
17-3 applies to papers filed with and proceedings before the State
17-4 Commission on Judicial Conduct, regardless of whether the papers
17-5 were filed or the proceedings were commenced before, on, or after
17-6 the effective date of this Act.
17-7 (c) Section 33.036, Government Code, as added by this Act,
17-8 applies to information relating to an investigation or proceeding
17-9 commenced before, on, or after the effective date of this Act.
17-10 (d) Section 33.0043, Government Code, as added by this Act,
17-11 applies only to a member of the State Commission on Judicial
17-12 Conduct appointed on or after the effective date of this Act.
17-13 (e) Section 33.0211, Government Code, as added by this Act,
17-14 and Section 33.033, Government Code, as amended by this Act, apply
17-15 only to complaints filed with the State Commission on Judicial
17-16 Conduct on or after the effective date of this Act.
17-17 (f) Section 33.001, Government Code, as amended by this Act,
17-18 applies only to conduct that occurs or an act committed on or after
17-19 the effective date of this Act. Conduct that occurs or an act
17-20 committed before the effective date of this Act is covered by the
17-21 law in effect at the time the conduct occurred or the act was
17-22 committed, and the former law is continued in effect for that
17-23 purpose.
17-24 (g) Section 33.004, Government Code, as amended by this Act,
17-25 applies only to the compensation of a special master appointed on
17-26 or after the effective date of this Act. The compensation of a
17-27 special master appointed before the effective date of this Act is
18-1 governed by the law in effect at the time the appointment was made,
18-2 and the former law is continued in effect for that purpose.
18-3 (h) Section 33.006, Government Code, as amended by this Act,
18-4 applies only to a cause of action that accrues on or after the
18-5 effective date of this Act. A cause of action that accrues before
18-6 the effective date of this Act is governed by the law in effect at
18-7 the time the cause of action accrued, and that law is continued in
18-8 effect for that purpose.
18-9 (i) Section 33.037, Government Code, as added by this Act,
18-10 applies only to a judgment of conviction or a grant of deferred
18-11 adjudication for an offense committed on or after the effective
18-12 date of this Act. A judgment of conviction or a grant of deferred
18-13 adjudication for an offense committed before the effective date of
18-14 this Act is covered by the law in effect when the offense was
18-15 committed, and the former law is continued in effect for that
18-16 purpose. For purposes of this subsection, an offense was committed
18-17 before the effective date of this Act if any element of the offense
18-18 occurred before that date.
18-19 SECTION 21. This Act takes effect September 1, 2001.