By: Ogden S.B. No. 1434
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the appointment and duties of magistrates for certain
1-3 courts of Brazos County.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 54, Government Code, is amended by adding
1-6 Subchapter T to read as follows:
1-7 SUBCHAPTER T. MAGISTRATES IN BRAZOS COUNTY
1-8 Sec. 54.1041. APPOINTMENT. (a) The judges of the district
1-9 courts and county courts at law in Brazos County, with the consent
1-10 and approval of the Commissioners Court of Brazos County, may
1-11 jointly appoint one or more magistrates to perform the duties
1-12 authorized by this subchapter.
1-13 (b) The judges may authorize one or more magistrates to
1-14 share service with more than one court.
1-15 (c) If a magistrate serves more than one court, the
1-16 magistrate's appointment must be made with the unanimous approval
1-17 of all the judges under whom the magistrate serves.
1-18 Sec. 54.1042. QUALIFICATIONS. To be eligible for
1-19 appointment as a magistrate, a person must:
1-20 (1) have resided in Brazos County for at least two
1-21 years preceding the person's appointment; and
1-22 (2) have been licensed to practice law in this state
1-23 for at least four years.
1-24 Sec. 54.1043. COMPENSATION. (a) A magistrate is entitled
1-25 to the salary determined by the Commissioners Court of Brazos
2-1 County.
2-2 (b) A magistrate's total compensation from all government
2-3 sources may not exceed an amount equal to $1,000 less than the
2-4 total compensation from all government sources paid to a judge of a
2-5 county court at law in Brazos County.
2-6 (c) The magistrate's salary is paid from the county fund
2-7 available for payment of officers' salaries.
2-8 Sec. 54.1044. JUDICIAL IMMUNITY. A magistrate has the same
2-9 judicial immunity as a district judge.
2-10 Sec. 54.1045. TERMINATION OF EMPLOYMENT. (a) A magistrate
2-11 who serves a single court serves at the will of the judge of that
2-12 court.
2-13 (b) A magistrate who serves more than one court may be
2-14 terminated by a majority of the judges of those courts.
2-15 (c) To terminate a magistrate's employment, the appropriate
2-16 judges must sign a written order of termination. The order must
2-17 state:
2-18 (1) the magistrate's name and state bar identification
2-19 number;
2-20 (2) each court ordering termination; and
2-21 (3) the date the magistrate's employment ends.
2-22 Sec. 54.1046. PROCEEDINGS THAT MAY BE REFERRED. (a) A
2-23 judge of a court authorized by the Commissioners Court of Brazos
2-24 County to refer criminal cases may refer to a magistrate any
2-25 criminal case for proceedings involving:
2-26 (1) a bond forfeiture;
3-1 (2) a pretrial motion, including a motion to proceed
3-2 with adjudication;
3-3 (3) the arraignment of defendants;
3-4 (4) a determination of whether a defendant is indigent
3-5 and, if so, the appointment of counsel for the defendant;
3-6 (5) a negotiated plea of guilty before the court;
3-7 (6) a writ of habeas corpus;
3-8 (7) an examining trial;
3-9 (8) a motion to modify or revoke probation; and
3-10 (9) any other matter the judge considers necessary and
3-11 proper.
3-12 (b) A judge of a court designated a juvenile court may refer
3-13 to a magistrate any matter the court may refer to a referee under
3-14 Title 3, Family Code.
3-15 (c) A judge of a court having family law jurisdiction may
3-16 refer to a magistrate any matter that may be referred to a master
3-17 appointed under the Family Code or this chapter.
3-18 (d) A judge of a court authorized by the Commissioners Court
3-19 of Brazos County to refer mental health cases may refer to a
3-20 magistrate any matter that may be referred to a magistrate or
3-21 referee under Subtitle C, Title 7, Health and Safety Code.
3-22 (e) A judge of a court authorized by the Commissioners Court
3-23 of Brazos County to refer civil cases other than a case described
3-24 by Subsection (c) or (d) may refer to a magistrate a civil case for
3-25 proceedings involving:
3-26 (1) a pretrial motion;
4-1 (2) a default or agreed judgment;
4-2 (3) an alternative dispute resolution procedure;
4-3 (4) a postjudgment matter; and
4-4 (5) any other matter the judge considers necessary and
4-5 proper.
4-6 (f) A magistrate may not preside over a trial on the merits,
4-7 regardless of whether the trial is before a jury.
4-8 Sec. 54.1047. ORDER OF REFERRAL. (a) To refer one or more
4-9 cases to a magistrate, a judge must issue an order of referral
4-10 specifying the magistrate's duties.
4-11 (b) An order of referral may:
4-12 (1) limit the powers of the magistrate and direct the
4-13 magistrate to report only on specific issues, perform particular
4-14 actions, or receive and report on evidence only;
4-15 (2) set the time and place for the hearing;
4-16 (3) prescribe a closing date for the hearing;
4-17 (4) provide a date for filing the magistrate's
4-18 findings;
4-19 (5) designate proceedings for more than one case over
4-20 which the magistrate shall preside;
4-21 (6) direct the magistrate to call the court's docket;
4-22 and
4-23 (7) designate the general powers and limitations of
4-24 authority of the magistrate applicable to any case referred.
4-25 Sec. 54.1048. POWERS. (a) Except as limited by an order of
4-26 referral, a magistrate to whom a case is referred may:
5-1 (1) conduct hearings;
5-2 (2) hear evidence;
5-3 (3) compel production of evidence;
5-4 (4) rule on admissibility of evidence;
5-5 (5) issue notices of the setting of a case for a
5-6 hearing;
5-7 (6) issue summons for the appearance of witnesses;
5-8 (7) examine witnesses;
5-9 (8) swear witnesses for hearings;
5-10 (9) make findings of fact on evidence;
5-11 (10) formulate conclusions of law;
5-12 (11) rule on a pretrial motion;
5-13 (12) recommend the rulings, orders, or judgment to be
5-14 made in a case;
5-15 (13) regulate proceedings in a hearing; and
5-16 (14) perform any action necessary and proper for the
5-17 efficient performance of the duties required by the order of
5-18 referral.
5-19 (b) A magistrate may not enter a ruling on any issue of law
5-20 or fact if that ruling could result in dismissal or require
5-21 dismissal of a pending case, but the magistrate may make findings,
5-22 conclusions, and recommendations on those issues.
5-23 Sec. 54.1049. NOTICE OF HEARING. Before a magistrate holds
5-24 a hearing, each party shall be given notice of the time and place
5-25 of the hearing as provided by law.
5-26 Sec. 54.1050. WITNESSES. (a) A witness who appears before
6-1 a magistrate and is sworn is subject to the penalties for perjury
6-2 as provided by law.
6-3 (b) A referring court may issue attachment against and may
6-4 fine or imprison a witness whose failure to appear after being
6-5 summoned or whose refusal to answer questions has been certified to
6-6 the court.
6-7 Sec. 54.1051. RECORD OF EVIDENCE. (a) A court reporter is
6-8 not required during a hearing held by a magistrate.
6-9 (b) A party, the magistrate, or the referring court may
6-10 provide for a reporter during the hearing.
6-11 (c) The record of a hearing before a magistrate may be
6-12 preserved by any means approved by the referring court, including
6-13 by stenographic or electronic recording.
6-14 (d) The referring court or magistrate may impose on a party
6-15 the expense of preserving the record as a court cost.
6-16 Sec. 54.1052. REPORT AND PAPERS TRANSMITTED TO JUDGE. At
6-17 the conclusion of the proceedings, a magistrate shall send to the
6-18 referring court:
6-19 (1) the magistrate's signed and dated report,
6-20 including the magistrate's findings, conclusions, orders,
6-21 recommendations, or other action taken; and
6-22 (2) any papers relating to the case.
6-23 Sec. 54.1053. HEARING BEFORE JUDGE. (a) After receiving
6-24 notice of the magistrate's findings, any party, principal, or
6-25 minor, or the parent, guardian, or custodian of a minor, is
6-26 entitled to a hearing before the judge of the referring court.
7-1 (b) Notice of the right to a hearing before the judge may be
7-2 given at the hearing before the magistrate or otherwise as the
7-3 referring court directs.
7-4 (c) Except as provided by other law requiring a party to
7-5 file a request for a hearing sooner, a party must file a request
7-6 for hearing with the referring court not later than the fifth day
7-7 after the date the magistrate signs the report under Section
7-8 54.1052. The appeal to the referring court must specify the
7-9 findings and conclusions of the magistrate to which the party
7-10 objects. The appeal is limited to the findings and conclusions
7-11 specified in the appeal.
7-12 Sec. 54.1054. EFFECT OF MAGISTRATE'S REPORT PENDING APPEAL.
7-13 Pending appeal of the magistrate's report to the referring court,
7-14 the decisions and recommendations of the magistrate's report have
7-15 the force and effect of, and are enforceable as, an order of the
7-16 referring court, except as provided by other law for a particular
7-17 action by the magistrate.
7-18 Sec. 54.1055. JUDICIAL ACTION. (a) The referring court may
7-19 modify, correct, reject, reverse, or recommit for further
7-20 proceedings any action taken by the magistrate.
7-21 (b) If the referring court does not take any action, the
7-22 actions of the magistrate become the decree of the referring court
7-23 on adoption by that court.
7-24 Sec. 54.1056. COSTS OF MAGISTRATE. (a) The court shall
7-25 determine if the nonprevailing party is able to defray the costs of
7-26 the magistrate. If the court determines that the nonprevailing
8-1 party is able to pay those costs, the court shall impose the
8-2 magistrate's fees as costs against the nonprevailing party.
8-3 (b) The Commissioners Court of Brazos County shall set the
8-4 amount of the magistrate's fees that may be imposed as costs.
8-5 Unless a higher fee is authorized by law for a particular action
8-6 taken by the magistrate, the magistrate's fees in a case may not
8-7 exceed $50.
8-8 (c) The clerk of the referring court shall collect the
8-9 magistrate's fees and deposit the fees in the county treasury.
8-10 SECTION 2. This Act takes effect immediately if it receives
8-11 a vote of two-thirds of all the members elected to each house, as
8-12 provided by Section 39, Article III, Texas Constitution. If this
8-13 Act does not receive the vote necessary for immediate effect, this
8-14 Act takes effect September 1, 2001.
8-15 COMMITTEE AMENDMENT NO. 1
8-16 Amend Senate Bill 1434 as follows:
8-17 (1) on page 3, strike lines 1 and 2;
8-18 (2) on page 3, line 5, add "and" following ";";
8-19 (3) on page 3, line 6, strike ";" and substitute ".";
8-20 (4) on page 3, strike lines 7 through 14;
8-21 (5) on page 3, strike lines 22 through 26;
8-22 (6) on page 4, strike lines 1 through 5;
8-23 (7) on page 4, line 11, strike "may" and substitute "shall";
8-24 (8) on page 5, line 8, add "and" following ";";
8-25 (9) on page 5, line 9, strike ";" and substitute ".";
8-26 (10) on page 5, strike lines 10 through 22;
9-1 (11) on page 6, line 20, strike "magistrate's findings,
9-2 conclusions";
9-3 (12) on page 6, line 24, strike "findings" and substitute
9-4 "orders, recommendations or other action taken";
9-5 (13) on page 7, line 9, strike "findings and conclusions"
9-6 and substitute "orders of or recommendations or other actions taken
9-7 by"; and,
9-8 (14) on page 7, line 10, strike "findings and conclusions"
9-9 and substitute "orders of or recommendations or other actions taken
9-10 which are".
9-11 Thompson