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