1-1 By: Ogden S.B. No. 1434 1-2 (In the Senate - Filed March 8, 2001; March 13, 2001, read 1-3 first time and referred to Committee on Jurisprudence; 1-4 April 24, 2001, reported favorably by the following vote: Yeas 7, 1-5 Nays 0; April 24, 2001, sent to printer.) 1-6 A BILL TO BE ENTITLED 1-7 AN ACT 1-8 relating to the appointment and duties of magistrates for certain 1-9 courts of Brazos County. 1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-11 SECTION 1. Chapter 54, Government Code, is amended by adding 1-12 Subchapter T to read as follows: 1-13 SUBCHAPTER T. MAGISTRATES IN BRAZOS COUNTY 1-14 Sec. 54.1041. APPOINTMENT. (a) The judges of the district 1-15 courts and county courts at law in Brazos County, with the consent 1-16 and approval of the Commissioners Court of Brazos County, may 1-17 jointly appoint one or more magistrates to perform the duties 1-18 authorized by this subchapter. 1-19 (b) The judges may authorize one or more magistrates to 1-20 share service with more than one court. 1-21 (c) If a magistrate serves more than one court, the 1-22 magistrate's appointment must be made with the unanimous approval 1-23 of all the judges under whom the magistrate serves. 1-24 Sec. 54.1042. QUALIFICATIONS. To be eligible for 1-25 appointment as a magistrate, a person must: 1-26 (1) have resided in Brazos County for at least two 1-27 years preceding the person's appointment; and 1-28 (2) have been licensed to practice law in this state 1-29 for at least four years. 1-30 Sec. 54.1043. COMPENSATION. (a) A magistrate is entitled 1-31 to the salary determined by the Commissioners Court of Brazos 1-32 County. 1-33 (b) A magistrate's total compensation from all government 1-34 sources may not exceed an amount equal to $1,000 less than the 1-35 total compensation from all government sources paid to a judge of a 1-36 county court at law in Brazos County. 1-37 (c) The magistrate's salary is paid from the county fund 1-38 available for payment of officers' salaries. 1-39 Sec. 54.1044. JUDICIAL IMMUNITY. A magistrate has the same 1-40 judicial immunity as a district judge. 1-41 Sec. 54.1045. TERMINATION OF EMPLOYMENT. (a) A magistrate 1-42 who serves a single court serves at the will of the judge of that 1-43 court. 1-44 (b) A magistrate who serves more than one court may be 1-45 terminated by a majority of the judges of those courts. 1-46 (c) To terminate a magistrate's employment, the appropriate 1-47 judges must sign a written order of termination. The order must 1-48 state: 1-49 (1) the magistrate's name and state bar identification 1-50 number; 1-51 (2) each court ordering termination; and 1-52 (3) the date the magistrate's employment ends. 1-53 Sec. 54.1046. PROCEEDINGS THAT MAY BE REFERRED. (a) A 1-54 judge of a court authorized by the Commissioners Court of Brazos 1-55 County to refer criminal cases may refer to a magistrate any 1-56 criminal case for proceedings involving: 1-57 (1) a bond forfeiture; 1-58 (2) a pretrial motion, including a motion to proceed 1-59 with adjudication; 1-60 (3) the arraignment of defendants; 1-61 (4) a determination of whether a defendant is indigent 1-62 and, if so, the appointment of counsel for the defendant; 1-63 (5) a negotiated plea of guilty before the court; 1-64 (6) a writ of habeas corpus; 2-1 (7) an examining trial; 2-2 (8) a motion to modify or revoke probation; and 2-3 (9) any other matter the judge considers necessary and 2-4 proper. 2-5 (b) A judge of a court designated a juvenile court may refer 2-6 to a magistrate any matter the court may refer to a referee under 2-7 Title 3, Family Code. 2-8 (c) A judge of a court having family law jurisdiction may 2-9 refer to a magistrate any matter that may be referred to a master 2-10 appointed under the Family Code or this chapter. 2-11 (d) A judge of a court authorized by the Commissioners Court 2-12 of Brazos County to refer mental health cases may refer to a 2-13 magistrate any matter that may be referred to a magistrate or 2-14 referee under Subtitle C, Title 7, Health and Safety Code. 2-15 (e) A judge of a court authorized by the Commissioners Court 2-16 of Brazos County to refer civil cases other than a case described 2-17 by Subsection (c) or (d) may refer to a magistrate a civil case for 2-18 proceedings involving: 2-19 (1) a pretrial motion; 2-20 (2) a default or agreed judgment; 2-21 (3) an alternative dispute resolution procedure; 2-22 (4) a post-judgment matter; and 2-23 (5) any other matter the judge considers necessary and 2-24 proper. 2-25 (f) A magistrate may not preside over a trial on the merits, 2-26 regardless of whether the trial is before a jury. 2-27 Sec. 54.1047. ORDER OF REFERRAL. (a) To refer one or more 2-28 cases to a magistrate, a judge must issue an order of referral 2-29 specifying the magistrate's duties. 2-30 (b) An order of referral may: 2-31 (1) limit the powers of the magistrate and direct the 2-32 magistrate to report only on specific issues, perform particular 2-33 actions, or receive and report on evidence only; 2-34 (2) set the time and place for the hearing; 2-35 (3) prescribe a closing date for the hearing; 2-36 (4) provide a date for filing the magistrate's 2-37 findings; 2-38 (5) designate proceedings for more than one case over 2-39 which the magistrate shall preside; 2-40 (6) direct the magistrate to call the court's docket; 2-41 and 2-42 (7) designate the general powers and limitations of 2-43 authority of the magistrate applicable to any case referred. 2-44 Sec. 54.1048. POWERS. (a) Except as limited by an order of 2-45 referral, a magistrate to whom a case is referred may: 2-46 (1) conduct hearings; 2-47 (2) hear evidence; 2-48 (3) compel production of evidence; 2-49 (4) rule on admissibility of evidence; 2-50 (5) issue notices of the setting of a case for a 2-51 hearing; 2-52 (6) issue summons for the appearance of witnesses; 2-53 (7) examine witnesses; 2-54 (8) swear witnesses for hearings; 2-55 (9) make findings of fact on evidence; 2-56 (10) formulate conclusions of law; 2-57 (11) rule on a pretrial motion; 2-58 (12) recommend the rulings, orders, or judgment to be 2-59 made in a case; 2-60 (13) regulate proceedings in a hearing; and 2-61 (14) perform any action necessary and proper for the 2-62 efficient performance of the duties required by the order of 2-63 referral. 2-64 (b) A magistrate may not enter a ruling on any issue of law 2-65 or fact if that ruling could result in dismissal or require 2-66 dismissal of a pending case, but the magistrate may make findings, 2-67 conclusions, and recommendations on those issues. 2-68 Sec. 54.1049. NOTICE OF HEARING. Before a magistrate holds 2-69 a hearing, each party shall be given notice of the time and place 3-1 of the hearing as provided by law. 3-2 Sec. 54.1050. WITNESSES. (a) A witness who appears before 3-3 a magistrate and is sworn is subject to the penalties for perjury 3-4 as provided by law. 3-5 (b) A referring court may issue attachment against and may 3-6 fine or imprison a witness whose failure to appear after being 3-7 summoned or whose refusal to answer questions has been certified to 3-8 the court. 3-9 Sec. 54.1051. RECORD OF EVIDENCE. (a) A court reporter is 3-10 not required during a hearing held by a magistrate. 3-11 (b) A party, the magistrate, or the referring court may 3-12 provide for a reporter during the hearing. 3-13 (c) The record of a hearing before a magistrate may be 3-14 preserved by any means approved by the referring court, including 3-15 by stenographic or electronic recording. 3-16 (d) The referring court or magistrate may impose on a party 3-17 the expense of preserving the record as a court cost. 3-18 Sec. 54.1052. REPORT AND PAPERS TRANSMITTED TO JUDGE. At 3-19 the conclusion of the proceedings, a magistrate shall send to the 3-20 referring court: 3-21 (1) the magistrate's signed and dated report, 3-22 including the magistrate's findings, conclusions, orders, 3-23 recommendations, or other action taken; and 3-24 (2) any papers relating to the case. 3-25 Sec. 54.1053. HEARING BEFORE JUDGE. (a) After receiving 3-26 notice of the magistrate's findings, any party, principal, or 3-27 minor, or the parent, guardian, or custodian of a minor, is 3-28 entitled to a hearing before the judge of the referring court. 3-29 (b) Notice of the right to a hearing before the judge may be 3-30 given at the hearing before the magistrate or otherwise as the 3-31 referring court directs. 3-32 (c) Except as provided by other law requiring a party to 3-33 file a request for a hearing sooner, a party must file a request 3-34 for hearing with the referring court not later than the fifth day 3-35 after the date the magistrate signs the report under Section 3-36 54.1052. The appeal to the referring court must specify the 3-37 findings and conclusions of the magistrate to which the party 3-38 objects. The appeal is limited to the findings and conclusions 3-39 specified in the appeal. 3-40 Sec. 54.1054. EFFECT OF MAGISTRATE'S REPORT PENDING APPEAL. 3-41 Pending appeal of the magistrate's report to the referring court, 3-42 the decisions and recommendations of the magistrate's report have 3-43 the force and effect of, and are enforceable as, an order of the 3-44 referring court, except as provided by other law for a particular 3-45 action by the magistrate. 3-46 Sec. 54.1055. JUDICIAL ACTION. (a) The referring court may 3-47 modify, correct, reject, reverse, or recommit for further 3-48 proceedings any action taken by the magistrate. 3-49 (b) If the referring court does not take any action, the 3-50 actions of the magistrate become the decree of the referring court 3-51 on adoption by that court. 3-52 Sec. 54.1056. COSTS OF MAGISTRATE. (a) The court shall 3-53 determine if the nonprevailing party is able to defray the costs of 3-54 the magistrate. If the court determines that the nonprevailing 3-55 party is able to pay those costs, the court shall impose the 3-56 magistrate's fees as costs against the nonprevailing party. 3-57 (b) The Commissioners Court of Brazos County shall set the 3-58 amount of the magistrate's fees that may be imposed as costs. 3-59 Unless a higher fee is authorized by law for a particular action 3-60 taken by the magistrate, the magistrate's fees in a case may not 3-61 exceed $50. 3-62 (c) The clerk of the referring court shall collect the 3-63 magistrate's fees and deposit the fees in the county treasury. 3-64 SECTION 2. This Act takes effect immediately if it receives 3-65 a vote of two-thirds of all the members elected to each house, as 3-66 provided by Section 39, Article III, Texas Constitution. If this 3-67 Act does not receive the vote necessary for immediate effect, this 3-68 Act takes effect September 1, 2001. 4-1 * * * * *