C.S.H.B. 599 78(R)    BILL ANALYSIS


C.S.H.B. 599
By: Chisum
Licensing & Administrative Procedures
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

The Legislature enacted the State Bar Act in 1939 establishing the State
Bar as a public corporation and mandating that all attorneys licensed to
practice law in Texas be members of the Bar.   The Bar operates as both a
regulatory agency and a professional association with jurisdiction over
more than 70,000 Texas attorneys.  Its major functions include maintaining
professional rules of conduct through an attorney grievance system,
maintaining professional development and continuing legal education
programs, and providing legal education and referral services to the
public.   

The State Bar is subject to the Sunset Act and will be abolished on
September 1, 2003, unless continued by the Legislature.  As a result of
its review of the State Bar, the Sunset Advisory Commission recommended
continuation of the Bar and several statutory modifications that are
contained in C.S.H.B. 599. 


RULEMAKING AUTHORITY

It is the opinion of this committee that rulemaking authority is expressly
delegated to the Supreme Court in SECTION 17 (Sec. 81.0753, Government
Code) and in SECTION 23 (Sec. 81.072, Government Code) of this bill.  

ANALYSIS

SECTION 1.

C.S.H.B. 599 amends the Government Code relating to the continuation and
functions of the State Bar of Texas.  The substitute also incorporates
several standard across-the-board recommendations of the Sunset
Commission.  It continues the State Bar for 12 years until September 1,
2015. 

SECTION 2.

Conforming change to authorize the Bar to send and receive election
ballots electronically. 

SECTION 3.

The substitute updates standard Sunset language requiring impartial
appointments to the Board and standard Sunset language requiring the Board
to separate its policymaking duties from the agency's management function. 

SECTION 4.

C.S.H.B. 599 adds standard Sunset language requiring members of the Board
to complete training before assuming their duties.  The substitute
requires the State Bar to develop a comprehensive strategic plan for its
operations spanning a period of five years beginning with the next
oddnumbered year.  The plan must include measurable goals and a system of
performance measures. Each year the State Bar must report these
performance measures to the Supreme Court and the editor of the Texas Bar
Journal for publication. 

SECTION 5.
 
The substitute requires the State Bar and the Supreme Court to consider
goals and performance measures  identified in the Bar's strategic plan in
developing and approving the Bar's annual budget, and to identify
additional goals and performance measures as necessary.  After
implementing the budget approved by the Supreme Court, the substitute
requires the State Bar to report to the Supreme Court on its progress in
meeting goals and performance measures.  It requires the State Bar to
revise the goals and performance measures as necessary and to notify the
Supreme Court of such revisions. 

SECTION 6.

The substitute repeals the requirement that 51 percent of registered
members of the State Bar vote in an election for the election to be
considered valid and makes conforming change to authorize the Bar to send
and receive election ballots electronically. 

SECTION 7.

The substitute authorizes the State Bar, with the approval of the Supreme
Court, to send and receive election ballots by electronic transmission and
stipulates that before approving  this method of balloting, the Supreme
Court must be satisfied that the Bar's election procedure provides members
of the Bar with secure access to election ballots and information.   The
substitute requires that the State Bar promote and monitor participation
of members in elections and report statistics regarding that participation
to the Supreme Court and the editor of the Texas Bar Journal for
publication. 

SECTION 8.

The substitute requires the executive committee to approve the creation of
committees by the Board. 

SECTION 9.

The substitute adds standard Sunset language specifying the grounds for
removing a Board member. 

SECTION 10.

The substitute adds standard Sunset language prohibiting Board members,
high-level employees, and spouses from serving as an officer or employee
of a related Texas trade association. 

SECTION 11.

The substitute updates standard Sunset language requiring the Bar to have
a current equal employment opportunity policy. 

SECTION 12.

The substitute replaces an existing provision with standard Sunset
language requiring  the executive director to inform Board members and
employees of the qualifications and responsibilities for office. The
substitute also provides additional standard Sunset language requiring the
Bar to maintain information on written complaints and to notify the
parties about policies for and the status of complaints, requiring the Bar
to inform employees about the State Employee Incentive Program, and
requiring the Board to make effective use of technology in the delivery of
information and services to the public. 

SECTION 13.

The heading to Section 81.054, Government Code, is amended to read as
follows: MEMBERSHIP FEES AND ADDITIONAL FEES. 

SECTION 14.

C.S.H.B. 599 requires the Supreme Court to set a civil legal services fee
in an amount not less that $65 to be paid annually by members of the State
Bar with funds to be distributed for approved  programs providing basic
civil legal services to the indigent. The substitute requires the Supreme
Court to review the amount of the fee at least biennially and authorizes
the court to modify the amount up to 120 percent of the lowest fee imposed
under the subsection during the preceeding year. The substitute requires
the Supreme Court clerk to retain the civil legal services fee until
distribution is approved by Supreme Court order.  C.S.H.B 599 stipulates
that the fee is not subject to rulemaking election requirements under
81.024, Government Code.  The substitute also adds standard Sunset
language establishing a method for membership renewal and a time-frame and
penalty structure for delinquent renewals. 

SECTION 15.

Section 81.072, Government Code, is amended to read as follows: GENERAL
DISCIPLINARY AND DISABILITY PROCEDURES. 

SECTION 16.

The substitute establishes a framework for the State Bar's grievance
system in statute that streamlines the hearing process.  It specifies that
the grievance system is to provide for an option for a trial in district
court on a complaint as well as an administrative system for attorney
disciplinary and disability findings in lieu of trials in district court.
The substitute links a voluntary mediation and dispute resolution
procedure maintained by the State Bar-the Client Attorney Assistance
Program-to the grievance system.  The substitute specifies that the
procedure should attempt to resolve allegations of attorney misconduct
dismissed from the grievance system and should coordinate with other
programs administered by the Bar.  The substitute stipulates that all
information considered in voluntary mediation and dispute resolution are
confidential to the extent that such information is confidential under the
grievance system.   

SECTION 17.

The substitute requires the chief disciplinary counsel's office to
classify each grievance as an inquiry or a complaint before a district
grievance committee can consider the matter and specifies that only
complainants may appeal the classification decision.  The substitute
requires the chief disciplinary counsel to review and investigate all
complaints and requires a panel of a district grievance committee to
consider complaints as forwarded by the chief disciplinary counsel in
either a hearing docket or a dismissal docket.  The chief disciplinary
counsel is required to refer all dismissed grievances for voluntary
mediation and dispute resolution.  All information presented to a panel of
a district grievance committee is confidential except under certain
circumstances. C.S.H.B. 599 defines the  parties to a hearing as the
Commission for Lawyer Discipline (CLD) and the respondent attorney and
specifies that the chief disciplinary counsel presents the complainant's
case in the hearing.  Only the CLD and the respondent attorney may appeal
findings of a district grievance committee panel to the Board of
Disciplinary Appeals (BODA) and then to the Supreme Court.  The substitute
authorizes BODA to affirm, modify, or reverse a panel's finding, or to
remand the complaint for rehearing by the panel that entered the finding
or a statewide grievance committee panel composed of members from State
Bar districts other than the district from which the appeal was taken.
The substitute directs the Supreme Court to promulgate rules regarding the
classification and disposition of grievances. 

SECTION 18.

Conforming changes.

SECTION 19.

The substitute adds standard Sunset language requiring the Board to
develop continuing education programs for members of the State bar. 

SECTION 20.

The substitute establishes the executive committee in statute  and sets
its composition. The substitute  requires the executive committee, on
recommendation of the president, to approve the creation of additional
standing and special committees of the Bar based on a fiscal impact study
and a poll of existing committee chairs.  The executive committee must
conduct a comprehensive review of standing and special committees at least
biennially to assess the continued need for each committee and to identify
unnecessary overlap.  The committee may perform any other duties as
delegated by the Board. 

SECTION 21.

Sections 81.020 (e) and 81.029 (l), Government Code, are repealed to be
consistent with standard Sunset language concerning requirements for the
executive director to inform Board members and employees of the
qualifications and responsibilities of office, and for the agency to
maintain an equal employment opportunity policy. 

SECTION 22.

Requires the executive director of the State Bar to prepare the equal
employment opportunity policy statement required by Section 81.029 by
January 1, 2004. 

SECTION 23.

The substitute requires the Supreme Court to adopt rules and procedures
concerning the grievance system as provided in the substitute no later
than January 1, 2004. 

SECTION 24.

The substitute clarifies in instructional provision that standard Sunset
language concerning Board members  only applies to members appointed or
elected to the Board after the effective date, September 1, 2003.
Similarly, the substitute clarifies that standard Sunset language
concerning maintaining information on complaints applies only to
complaints filed with the Bar on or after the effective date of the
substitute and that standard Sunset language concerning membership renewal
applies only to membership fees that are subject to renewal after the
effective date of the substitute. The substitute also clarifies that
changes to the grievance procedure apply to grievances filed on or after
January 1, 2004. 


EFFECTIVE DATE

September 1, 2003.


COMPARISON OF ORIGINAL TO SUBSTITUTE


C.S.H.B. 599 modifies the original to ensure that the Bar may distribute
and receive election ballots electronically, and does not have to mail
paper ballots. 

The substitute clarifies that changes in prohibitions or qualifications
for board members, apply to both appointed and elected board members. 

The substitute adds a provision to require the Supreme Court to set a
civil legal services fee in an amount not less that $65 to be paid
annually by members of the State Bar and to be used solely to fund basic
civil legal services to the indigent as defined in statute.   The
substitute further requires the Supreme Court to review the amount of the
fee at least biennially and authorizes the court to modify the amount up
to 120 percent of the lowest fee imposed under the subsection during the
preceeding year.  C.S.H.B 599 stipulates that the fee is not subject to
rulemaking election requirements under Sec.   81.024, Government Code. 

The substitute provides that standards and procedures for processing
grievances against attorneys  must provide for an option for a trial in
district court on a complaint as well as an administrative system for
attorney disciplinary and disability findings.  In contrast, the original
sought to eliminate the option for trial in district court, leaving only
an administrative system. 

The substitute clarifies that voluntary mediation efforts should attempt
to resolve allegations of attorney misconduct.  

The substitute reverts to existing statutory wording by changing "district
grievance committee" back to "tribunal" to encompass other bodies that may
exercise this authority, such as the Board of Disciplinary Appeals or the
Supreme Court.  

The substitute requires the chief disciplinary counsel to classify a
grievance as an inquiry if the respondent attorney is deceased, has
relinquished license in lieu of discipline, or is not licensed in Texas. 

The substitute clarifies that the chief disciplinary counsel is required
to review and investigate each grievance classified as a complaint. 

The substitute clarifies that references are to a panel of a district
grievance committee, rather than the full committee.  

The substitute defines the parties to a hearing as the Commission for
Lawyer Discipline and the respondent attorney. The substitute clarifies
that the chief disciplinary counsel presents the complainant's case at the
hearing, rather than represents the complainant at the hearing.  The
substitute also strikes wording from the original to clarify that the
complainant does not have authority to appeal. 

The substitute changes "Texas Rules of Evidence" to "Texas Rules of Civil
Procedure."   
The substitute adds language to authorize the Board of Disciplinary
Appeals to affirm, modify, or reverse a panel's finding, or to remand the
complaint for rehearing by the panel that entered the finding or a
statewide grievance committee panel composed of members from state bar
districts other than the district from which the appeal was taken. 

The substitute makes corrections to reflect that duties belong to the
president rather than the board of directors or the president-elect. 

The substitute requires the Supreme Court to adopt rules regarding changes
in the grievance system not later than January 1, 2004, and stipulates
that these rules apply to grievances filed on or after this date. 

The substitute strikes language from the original version providing the
standard Sunset across-theboard recommendation to limit rules on
advertising.