SRC-LBB S.B. 794 78(R)   BILL ANALYSIS


Senate Research Center   S.B. 794
78R3459 DRH-DBy: Duncan/Ellis,Rodney
Jurisprudence
3/13/2003
As Filed


DIGEST AND PURPOSE 

Currently, more than two-thirds of all judges are unopposed, and 20
percent of sitting judges have never had an opponent. In the current
system, there are only two ways to become well known to the
electorate--raise and spend money, or speak out on specific issues.  This
may place greater pressure on elected judges to commit to policy positions
during their campaigns.  As proposed, S.B. 794 will create an
appointment/retention system whereby every judge would face voters at the
end of every term.  This system will increase judicial independence and
will give even more power to the voter.  At the end of a judge's appointed
term, the judge sits in a non-partisan retention election during the
general election in which the voters elect whether to retain the judge.
If the judge is retained, he/she sits for an additional term.  If the
judge is not retained, the process begins again with a new gubernatorial
appointment. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 21, Government Code, by adding Section 21.010,
as follows: 

 Sec. 21.010.  APPOINTMENT AND RETENTION OF JUSTICES AND JUDGES. (a)
Provides that this section applies to each office of justice or judge for
which the Texas Constitution requires a person appointed to fill a vacancy
in the office to be subject to retention or rejection by the voters at the
end of the appointed term and each successive term. 

(b)  Provides that in conjunction with the last general election for state
and county officers to be held before the end of a term of office to which
a justice or judge is appointed or retained, the justice or judge is
subject to retention or rejection at the nonpartisan judicial retention
election in accordance with Chapter 291, Election Code. 

(c)  Requires the vacancy existing at the beginning of the succeeding term
to be filled in the manner prescribed by the Texas Constitution, if a
justice or judge does not seek retention, or withdraws from the retention
election, as provided by Chapter 291, Election Code. 

(d)  Requires that if a vacancy occurs in the office of a justice or judge
seeking retention and the justice's or judge's name is omitted from the
retention election ballot under Chapter 291, Election Code, the vacancy is
to be filled in the manner prescribed by the Texas Constitution. 

(e)  Provides that if a majority of the votes received on the question are
for the retention of the justice or judge, the person is entitled to
remain in office for a regular term beginning on the first day of the
following January, unless the person becomes ineligible  or is removed as
provided by law. 

(f)  Requires that if less than a majority of the votes received on the
question are for retention, a vacancy in the office exists on the first
day of the following January, and the vacancy is to be filled in the
manner prescribed by the Texas Constitution. 

(g)  Requires that if the name of a justice or judge seeking retention
appears on the retention election ballot under Chapter 291, Election Code,
although a vacancy has occurred in the office, the retention election for
that office has no effect, and the vacancy is to be filled in the manner
prescribed by the Texas Constitution. 

SECTION 2.  Amends the Election Code by adding Title 17, as follows:

TITLE 17.  NONPARTISAN JUDICIAL RETENTION ELECTIONS
CHAPTER 291.  RETENTION ELECTION

Sec. 291.001.  DECLARATION OF CANDIDACY.  (a)  Requires a justice or judge
who seeks to continue to serve in that office to file with the secretary
of state a declaration of candidacy to succeed to the next term, not later
than 5 p.m. on June 1 preceding the nonpartisan judicial retention
election at which the justice or judge is subject to retention or
rejection. 

(b)  Prohibits a declaration from being filed earlier than the 30th day
before the date of the filing deadline.  Provides that a declaration filed
by mail is considered to be filed at the time of its receipt by the
appropriate authority. 

(c)  Provides that the filling of the subsequent vacancy for the office
for which a declaration of candidacy is not filed is covered by Section
21.010, Government Code. 

Sec. 291.002.  WITHDRAWAL, DEATH, OR INELIGIBILITY.  (a)  Provides that
with respect to withdrawal, death, or ineligibility of a candidate in a
nonpartisan judicial retention election, this section supersedes Chapter
145A, to the extent of any conflict. 

(b)  Prohibits a candidate from withdrawing from the retention election
after the 65th day before election day. 

(c)  Requires a withdrawal request to be filed with the authority with
whom the withdrawing candidate's declaration of candidacy is required to
be filed. 

(d)  Requires a candidate's name to be omitted from the retention election
ballot if the candidate withdraws, dies, or is declared ineligible on or
before the 65th day before election day. 

(e)  Requires a candidate's name to be placed on the retention election
ballot, 
if a candidate who has made a declaration of candidacy that complies with
the applicable requirements dies or is declared ineligible after the 65th
day before election day.  

(f)  Provides that the filling of the subsequent vacancy for the office
following implementation of Subsection (d) or (e) is covered by Section
21.010, Government Code. 

Sec. 291.003.  CERTIFICATION OF NAMES FOR PLACEMENT ON RETENTION ELECTION
BALLOT.  (a)  Requires the secretary of state (SOS) to certify in writing
for placement on the nonpartisan judicial retention election ballot the
name of each candidate who  files with the SOS a declaration of candidacy
that complies with Section 291.001, except as provided by Subsection (c). 

(b)  Requires the SOS, not later than the 55th day before election day, to
deliver the certification to the authority responsible for having the
official ballot prepared in each county in which the candidate's name is
to appear on the ballot. 

(c)  Prohibits a candidate's name from being certified if, before
delivering the certification, the SOS learns that the name is to be
omitted from the ballot under Section 291.002. 

 Sec. 291.004.  RETENTION ELECTION BALLOT.  Requires the name of the
person  subject to retention or rejection to be submitted to the voters on
the nonpartisan judicial retention election ballot following the offices
subject to election under the heading "Retention of Nonpartisan Judicial
Offices," in substantially the following form: 
 
 "Shall (Justice or Judge)_______________________
 
 ______________________________________________
 be retained in office  as (justice or judge) of the
 (name of court)_________________________?"
 
 ____"Yes"
 ____"No"
 
Sec. 291.005.  GENERAL PROCEDURE FOR CONDUCT OF RETENTION ELECTION.  (a)
Requires the nonpartisan judicial retention election to  be conducted and
the results canvassed, tabulated, and reported in the manner applicable to
partisan offices in the general election for state and county officers,
except as otherwise provided by this code. 

(b)  Requires a certificate of election to be issued to a retained officer
in the same manner as provided for a candidate elected to an office. 

Sec. 291.006.  WRITE-IN VOTING PROHIBITED.  Prohibits write-in voting in a
nonpartisan judicial retention election. 

Sec. 291.007.  POLITICAL CONTRIBUTIONS AND EXPENDITURES.  Requires a
candidate for retention of a judicial office that is subject to Title 15
to comply with that title in the same manner as a candidate for election
to the office. 

Sec. 291.008.  APPLICABILITY OF OTHER PARTS OF CODE.  Provides that the
other titles of this code apply to a nonpartisan judicial retention
election except provisions that are inconsistent with this title or that
cannot feasibly be applied in a retention election. 

Sec. 291.009.  ADDITIONAL PROCEDURES.  Requires the SOS to prescribe any
additional procedures necessary for the orderly and proper administration
of elections held under this chapter. 

SECTION 3.  Amends Section 1.005, Election Code,  by amending Subdivision
(9) and adding Subdivisions (25) and (26)  as follows: 

(9)   Provides that "independent candidate" does not include a nonpartisan
judicial candidate. 

 (25)  Defines "nonpartisan judicial candidate." 

  (26)  Defines "nonpartisan judicial retention election." 

SECTION 4.  Amends Section 41.002, Election Code,  to require the general
election for state and county officers, including the nonpartisan judicial
retention election, to be held on the first Tuesday after the first Monday
in November in even-numbered years. 

SECTION 5.  Amends Section 52.092, Election Code, by amending Subsections
(a), (c), (d), and (h) and adding Subsection (f-1), as follows: 

 (a)  Makes a conforming change.
  
(c)  Deletes certain statewide judicial offices of the state government
that are listed on the ballot for the general election for state and
county officers. 

(d)  Deletes certain district judicial offices of the state government
that are listed on the ballot for the general election for state and
county officers. 
  
(f-1)  Requires nonpartisan judicial retention election offices to be
listed in the following order: 
  (1)  chief justice, supreme court;
  (2)  justice, supreme court;
  (3)  presiding judge, court of criminal appeals;
  (4)  judge, court of criminal appeals;
  (5)  chief justice, court of appeals;
  (6)  justice, court of appeals;
  (7)  district judge;
  (8)  criminal district judge;
  (9)  family district judge.

 (h)  Requires the SOS to assign a place number to each position to be
voted on at the   nonpartisan judicial retention election for certain
offices. 
  
SECTION 6.  Amends Section 145.003(b), Election Code, to make conforming
changes. 

SECTION 7.  Section 145.005(a), Election Code, is amended to delete the
phrase "under this chapter." 

SECTION 8.  Amends Section 172.021(e), Election Code, to delete Section
172.024 (a) (10) and (12) in reference to a specified candidate for an
office. 
 
SECTION 9.  Amends Section 172.024(a), Election Code, to delete references
to the filing fee for certain candidates for nomination in the general
primary election.  Redesignates Subdivisions (12)-(17) as (8)-(13). 

SECTION 10.  Amends Section 202.001, Election Code, to provide that this
chapter applies to elective offices of the state and county governments
except the offices of state senator and state representative, justice or
judge of an appellate court and judge of a district court. 

SECTION 11.  (a)  Provides that each appellate justice or judge or
district judge in office January 1, 2004, unless otherwise removed as
provided by law, continues in office subject to this section. 

(b)  Provides that each justice or judge listed in Subsection (a) of this
section who is in office January 1, 2004, is subject to retention or
rejection, in the manner provided by law for a justice or judge appointed
to the office after the effective date of this Act, at the last general
election preceding the expiration of the regular or unexpired term for
which each was elected or appointed. 
 
SECTION 12.  Effective date:  January 1, 2004,  if the constitutional
amendment proposed by the 78th Legislature is approved by the voters.  If
that amendment is not approved by the voters, this Act has no effect.