78R2758 KLA-D
By: Chisum H.B. No. 599
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the State Bar of
Texas.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 81.003, Government Code, is amended to
read as follows:
Sec. 81.003. SUNSET PROVISION. The state bar is subject to
Chapter 325 (Texas Sunset Act). Unless continued in existence as
provided by that chapter, this chapter expires September 1, 2015
[2003].
SECTION 2. Sections 81.020(c) and (f), Government Code, are
amended to read as follows:
(c) Elected members serve three-year terms. Nonattorney
members serve staggered terms of the same length as terms of elected
board members. The supreme court shall annually appoint two
nonattorney members, with at least one of the two from a list of at
least five names submitted by the governor. Appointments to the
board [In making the appointments the supreme court and the
governor must attempt to ensure full and fair representation of the
general public, including women, minorities, and retired persons
who are at least 55 years of age. Each appointment] shall be made
without regard to the race, color, disability [creed], sex,
religion, age, or national origin of the appointees. A person who
has served more than half of a full term is not eligible for
reappointment to the board.
(f) The board of directors shall develop and implement
policies that clearly separate [define] the [respective]
responsibilities of the board and the management responsibilities
of the executive director and the staff of the state bar.
SECTION 3. Subchapter B, Chapter 81, Government Code, is
amended by adding Sections 81.0201 and 81.0215 to read as follows:
Sec. 81.0201. TRAINING PROGRAM FOR BOARD MEMBERS. (a) A
person who is appointed to and qualifies for office as a member of
the board of directors may not vote, deliberate, or be counted as a
member in attendance at a meeting of the board until the person
completes a training program that complies with this section.
(b) The training program must provide the person with
information regarding:
(1) the legislation that created the state bar and the
board;
(2) the programs operated by the state bar;
(3) the role and functions of the state bar;
(4) the rules of the state bar, with an emphasis on the
rules that relate to disciplinary and investigatory authority;
(5) the current budget for the state bar;
(6) the results of the most recent formal audit of the
state bar;
(7) the requirements of:
(A) the open meetings law, Chapter 551;
(B) the public information law, Chapter 552; and
(C) other laws relating to public officials,
including conflict-of-interest laws; and
(8) any applicable ethics policies adopted by the
state bar or the Texas Ethics Commission.
Sec. 81.0215. STRATEGIC PLAN. (a) The state bar shall
develop a comprehensive, long-range strategic plan for its
operations. Each even-numbered year, the state bar shall issue a
plan covering five fiscal years beginning with the next
odd-numbered fiscal year.
(b) The strategic plan must include measurable goals and a
system of performance measures that:
(1) relates directly to the identified goals; and
(2) focuses on the results and outcomes of state bar
operations and services.
(c) Each year, the state bar shall report the performance
measures included in the strategic plan under this section to the
supreme court and the editor of the Texas Bar Journal for
publication.
SECTION 4. Section 81.022, Government Code, is amended by
adding Subsections (a-1) and (e) to read as follows:
(a-1) In developing and approving the annual budget, the
state bar and supreme court shall:
(1) consider the goals and performance measures
identified in the strategic plan developed under Section 81.0215;
and
(2) identify additional goals and performance
measures as necessary.
(e) After implementing a budget approved by the supreme
court, the state bar shall report to the court regarding the state
bar's performance on the goals and performance measures identified
in the strategic plan developed under Section 81.0215. The state
bar shall:
(1) revise the goals and performance measures as
necessary; and
(2) notify the supreme court of the revisions.
SECTION 5. Section 81.024(d), Government Code, is amended
to read as follows:
(d) At the end of the 30-day period following the date the
ballots are mailed, the court shall count the returned ballots. [An
election is valid only if at least 51 percent of the registered
members of the state bar vote in the election.]
SECTION 6. Subchapter B, Chapter 81, Government Code, is
amended by adding Sections 81.0241, 81.0242, and 81.0243 to read as
follows:
Sec. 81.0241. RULES REGARDING ADVERTISING. (a) The
supreme court may not promulgate rules restricting advertising or
competitive bidding by members of the state bar except to prohibit
false, misleading, or deceptive practices.
(b) In its rules to prohibit false, misleading, or deceptive
practices, the supreme court may not include a rule that:
(1) restricts the use of any medium for advertising;
(2) restricts the use of the personal appearance or
voice of a member of the state bar in an advertisement; or
(3) relates to the size or duration of an
advertisement by a member of the state bar.
Sec. 81.0242. ELECTRONIC TRANSMISSION OF ELECTION
MATERIALS. (a) The state bar may, with the approval of the supreme
court, distribute by electronic transmission ballots and related
materials and receive by electronic transmission completed ballots
in an election under this chapter.
(b) Before approving the distribution of ballots and
related materials by electronic transmission under this section,
the supreme court must be satisfied that the state bar has
implemented procedures that ensure each member of the state bar
will have secure access to election ballots and information.
Sec. 81.0243. PARTICIPATION IN ELECTIONS. The state bar,
in the manner provided by the supreme court, shall:
(1) promote and monitor participation of members of
the state bar in elections under this chapter; and
(2) report statistics regarding that participation to
the supreme court and the editor of the Texas Bar Journal for
publication.
SECTION 7. Section 81.026(a), Government Code, is amended
to read as follows:
(a) The board may create committees, subject to the
executive committee's approval under Subchapter I, and sections as
it considers advisable and necessary to carry out the purposes of
this chapter.
SECTION 8. Section 81.027(a), Government Code, is amended
to read as follows:
(a) The board of directors may remove a director from the
board at any regular meeting by resolution declaring the director's
position vacant. It is a ground for removal from the board that a
director [if]:
(1) does not have at the time of taking office the
applicable qualifications for office, if any;
(2) does not maintain during service on the board the
applicable qualifications for office, if any;
(3) is ineligible for membership under Section 81.028
or 81.031;
(4) cannot, because of illness or disability,
discharge the director's duties for a substantial part of the
director's term; or
(5) is absent from more than half of the regularly
scheduled board meetings that the director is eligible to attend
during a calendar year without an excuse approved by a majority vote
of the board [the director, in the board's determination, has
become incapacitated and cannot perform his duties as a director;
[(2) the director has been absent, without cause
considered adequate by the board, from any two consecutive regular
meetings of the board or from a total of four meetings;
[(3) the director violates a prohibition established
by Section 81.028; or
[(4) the director has violated the terms or provisions
of Section 81.031].
SECTION 9. Section 81.028, Government Code, is amended to
read as follows:
Sec. 81.028. RELATIONSHIP WITH TRADE ASSOCIATION [EMPLOYEE
OR CONSULTANT]. (a) In this section, "Texas trade association"
means a cooperative and voluntarily joined statewide association of
business or professional competitors in this state designed to
assist its members and its industry or profession in dealing with
mutual business or professional problems and in promoting their
common interest.
(b) A person may not be a member of the board of directors
and may not be a state bar employee employed in a "bona fide
executive, administrative, or professional capacity," as that
phrase is used for purposes of establishing an exemption to the
overtime provisions of the federal Fair Labor Standards Act of 1938
(29 U.S.C. Section 201 et seq.), and its subsequent amendments, if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of board
interest; or
(2) the person's spouse is an officer, manager, [A
member of the board of directors or an employee of the board may not
be an employee] or paid consultant of a Texas trade association in
the field of board interest.
SECTION 10. Sections 81.029(j) and (k), Government Code,
are amended to read as follows:
(j) The executive director or the executive director's
designee shall prepare and maintain a written policy statement that
implements [to assure implementation of] a program of equal
employment opportunity to ensure that [under which] all personnel
decisions [transactions] are made without regard to race, color,
disability [handicap], sex, religion, age, or national origin. The
policy statement must include:
(1) personnel policies, including policies relating
to recruitment, evaluation, selection, [appointment,] training,
and promotion of personnel, that show the intent of the state bar to
avoid the unlawful employment practices described by Chapter 21,
Labor Code; and
(2) an [a comprehensive] analysis of the extent to
which the composition of the state bar's personnel is in accordance
with state and federal law and a description of reasonable methods
to achieve compliance with state and federal law [state bar work
force that meets federal and state guidelines;
[(3) procedures by which a determination can be made
of significant underuse in the state bar work force of all persons
for whom federal or state guidelines encourage a more equitable
balance; and
[(4) reasonable methods to appropriately address
those areas of significant underuse].
(k) The [A] policy statement [prepared under Subsection
(j)] must:
(1) [cover an annual period,] be updated [at least]
annually;
(2) be reviewed by the state Commission on Human
Rights for compliance with Subsection (j)(1);[,] and
(3) be filed with the supreme court and the governor's
office.
SECTION 11. Subchapter B, Chapter 81, Government Code, is
amended by adding Sections 81.035, 81.036, 81.037, and 81.038 to
read as follows:
Sec. 81.035. INFORMATION REGARDING REQUIREMENTS FOR OFFICE
OR EMPLOYMENT. The executive director or the executive director's
designee shall provide to members of the board of directors and to
agency employees, as often as necessary, information regarding the
requirements for office or employment under this chapter, including
information regarding a person's responsibilities under applicable
laws relating to standards of conduct for state officers or
employees.
Sec. 81.036. INFORMATION ON CERTAIN COMPLAINTS. (a) The
state bar shall maintain a file on each written complaint, other
than a grievance against an attorney, filed with the state bar. The
file must include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the state
bar;
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the state bar closed the file without taking action other than to
investigate the complaint.
(b) The state bar shall provide to the person filing the
complaint and to each person who is a subject of the complaint a
copy of the state bar's policies and procedures relating to
complaint investigation and resolution.
(c) The state bar, at least quarterly until final
disposition of the complaint, shall notify the person filing the
complaint and each person who is a subject of the complaint of the
status of the investigation unless the notice would jeopardize an
undercover investigation.
Sec. 81.037. STATE EMPLOYEE INCENTIVE PROGRAM. The
executive director or the executive director's designee shall
provide to state bar employees information and training on the
benefits and methods of participation in the state employee
incentive program under Subchapter B, Chapter 2108.
Sec. 81.038. USE OF TECHNOLOGY. The board of directors
shall develop and implement a policy requiring the executive
director and state bar employees to research and propose
appropriate technological solutions to improve the state bar's
ability to perform its functions. The technological solutions
must:
(1) ensure that the public is able to easily find
information about the state bar on the Internet;
(2) ensure that persons who want to use the state bar's
services are able to:
(A) interact with the state bar through the
Internet; and
(B) access any service that can be provided
effectively through the Internet; and
(3) be cost effective and developed through the state
bar's planning processes.
SECTION 12. Section 81.054, Government Code, is amended by
amending Subsection (a) and adding Subsections (f)-(i) to read as
follows:
(a) The supreme court shall set fees for members of the
state bar. The fees, other than those set for associate members,
must be set in accordance with this section and Section 81.024.
(f) A person who is otherwise eligible to renew the person's
membership may renew the membership by paying the required
membership fees to the state bar on or before the due date.
(g) A person whose membership has been expired for 90 days
or less may renew the membership by paying to the state bar
membership fees equal to 1-1/2 times the normally required
membership fees.
(h) A person whose membership has been expired for more than
90 days but less than one year may renew the membership by paying to
the state bar membership fees equal to two times the normally
required membership fees.
(i) Not later than the 30th day before the date a person's
membership is scheduled to expire, the state bar shall send written
notice of the impending expiration to the person at the person's
last known address according to the records of the state bar.
SECTION 13. The heading to Section 81.072, Government Code,
is amended to read as follows:
Sec. 81.072. GENERAL DISCIPLINARY AND DISABILITY
PROCEDURES.
SECTION 14. Section 81.072, Government Code, is amended by
amending Subsections (a), (b), (e), (f), (h), and (o) and adding
Subsection (e-1) to read as follows:
(a) In furtherance of the supreme court's powers to
supervise the conduct of attorneys, the court shall establish
disciplinary and disability procedures in addition to the
procedures provided by this subchapter.
(b) The supreme court shall establish minimum standards and
procedures for the attorney disciplinary and disability system.
The standards and procedures for processing grievances
[complaints] against attorneys must provide for:
(1) classification of all grievances and
investigation of all [inquiries and] complaints;
(2) a full explanation to each complainant on
dismissal of an inquiry or a complaint;
(3) periodic preparation of abstracts of inquiries and
complaints filed that, even if true, do or do not constitute
misconduct;
(4) an information file for each grievance [complaint]
filed;
(5) a grievance [complaint] tracking system to monitor
processing of grievances [complaints] by category, method of
resolution, and length of time required for resolution;
(6) notice by the state bar to the parties of a written
grievance [complaint] filed with the state bar that the state bar
has the authority to resolve of the status of the grievance
[complaint], at least quarterly and until final disposition, unless
the notice would jeopardize an undercover investigation;
(7) an administrative system for attorney
disciplinary and disability findings in lieu of [decisions as an
option to] trials in district court, including an appeal procedure
to the Board of Disciplinary Appeals and the supreme court under the
substantial evidence rule;
(8) an administrative system for reciprocal and
compulsory discipline;
(9) interim suspension of an attorney posing a threat
of immediate irreparable harm to a client;
(10) authorizing all parties to an attorney
disciplinary hearing, including the complainant, to be present at
all hearings at which testimony is taken and requiring notice of
those hearings to be given to the complainant not later than the
seventh day before the date of the hearing;
(11) the commission adopting rules that govern the use
of private reprimands by grievance committees and that prohibit a
committee:
(A) giving an attorney more than one private
reprimand within a five-year period for a violation of the same
disciplinary rule; or
(B) giving a private reprimand for a violation
that involves a failure to return an unearned fee, a theft, or a
misapplication of fiduciary property; and
(12) distribution of a voluntary survey to all
complainants urging views on grievance system experiences.
(e) The state bar shall establish a voluntary mediation and
dispute resolution procedure to:
(1) resolve each allegation [that may be used as a
model for resolving allegations] of attorney misconduct that is:
(A) classified as an inquiry under Section 81.073
because it does [do] not constitute an offense cognizable under the
Texas Disciplinary Rules of Professional Conduct; or
(B) classified as a complaint and subsequently
dismissed; and
(2) facilitate coordination with other programs
administered by the state bar to address and resolve inquiries and
complaints referred to the voluntary mediation and dispute
resolution procedure.
(e-1) All types of information, proceedings, hearing
transcripts, and statements presented during the voluntary
mediation and dispute resolution procedure established under
Subsection (e) are confidential to the same extent the information,
proceedings, transcripts, or statements would be confidential if
presented to a panel of a district grievance committee.
(f) Responses to the survey provided for in Subsection
(b)(12) may not identify either the complainant or attorney and
shall be open to the public. The topics must include:
(1) treatment by the grievance system staff and
volunteers;
(2) the fairness of grievance procedures;
(3) the length of time for grievance [complaint]
processing;
(4) disposition of the grievance [complaint]; and
(5) suggestions for improvement of the grievance
system.
(h) The state bar or a court may not require an attorney
against whom a disciplinary action has been brought to disclose
information protected by the attorney-client privilege if the
client did not initiate the grievance [complaint] that is the
subject of the action.
(o) Whenever a grievance is either dismissed as an inquiry
or dismissed as a complaint [after an investigatory hearing] in
accordance with the Texas Rules of Disciplinary Procedure and that
dismissal has become final, the respondent attorney may thereafter
deny that a grievance was pursued and [. In any disciplinary action
which is tried to verdict before an evidentiary panel or a district
court and there is a take-nothing judgment entered which becomes
final, the respondent attorney] may file a motion with the district
grievance committee [tribunal] seeking expunction of all records
[the tribunal's file] on the matter, [. In the event an expunction
is granted, the evidentiary panel or district court shall order
that all records be destroyed] other than statistical or
identifying information maintained by the chief disciplinary
counsel pertaining to the [any] grievance [which formed the basis
of the disciplinary action and the respondent attorney may
thereafter deny any grievance which formed the basis of the
disciplinary action was filed].
SECTION 15. Subchapter E, Chapter 81, Government Code, is
amended by adding Sections 81.073, 81.074, 81.075, 81.0751,
81.0752, and 81.0753 to read as follows:
Sec. 81.073. CLASSIFICATION OF GRIEVANCES. (a) The chief
disciplinary counsel's office shall classify each grievance on
receipt as:
(1) a complaint, if the grievance alleges conduct
that, if true, constitutes professional misconduct or disability
cognizable under the Texas Disciplinary Rules of Professional
Conduct; or
(2) an inquiry, if the grievance alleges conduct that,
even if true, does not constitute professional misconduct or
disability cognizable under the Texas Disciplinary Rules of
Professional Conduct.
(b) A complainant may appeal the classification of a
grievance as an inquiry to the Board of Disciplinary Appeals, or the
complainant may amend and resubmit the grievance. An attorney
against whom a grievance is filed may not appeal the classification
of the grievance.
Sec. 81.074. DISPOSITION OF INQUIRIES. The chief
disciplinary counsel shall dismiss a grievance classified as an
inquiry and refer the inquiry to the voluntary mediation and
dispute resolution procedure established under Section 81.072(e).
Sec. 81.075. DISPOSITION OF COMPLAINTS. (a) The chief
disciplinary counsel shall review each grievance classified as a
complaint to determine whether there is just cause, as defined by
the Texas Rules of Disciplinary Procedure.
(b) After reviewing a complaint, the chief disciplinary
counsel shall place the complaint on:
(1) a hearing docket, if the counsel finds just cause;
or
(2) a dismissal docket, if the counsel finds there is
no just cause.
(c) A district grievance committee shall consider each
complaint placed on the dismissal docket at a closed hearing
without the complainant or the respondent attorney present. The
committee may:
(1) approve the dismissal of the complaint and refer
the complaint to the voluntary mediation and dispute resolution
procedure established under Section 81.072(e); or
(2) deny the dismissal of the complaint and place the
complaint on a hearing docket.
(d) A panel of a district grievance committee shall conduct
a hearing on each complaint placed on the hearing docket. The
commission represents the interests of the complainant at the
hearing. Each party may seek and the committee may issue a subpoena
to compel attendance and production of records before the panel.
Each party may conduct limited discovery in general accordance with
the Texas Rules of Evidence as prescribed by rules of the supreme
court.
(e) After conducting a hearing under Subsection (d), the
panel of the district grievance committee may:
(1) dismiss the complaint and refer it to the
voluntary mediation and dispute resolution procedure established
under Section 81.072(e);
(2) find that the respondent attorney suffers from a
disability and forward that finding to the Board of Disciplinary
Appeals for referral to a district disability committee; or
(3) find that professional misconduct occurred and
impose sanctions.
Sec. 81.0751. APPEALS. The commission, on behalf of a
complainant, or a respondent attorney may appeal:
(1) a finding of a panel of a district grievance
committee under Section 81.075(e) only to the Board of Disciplinary
Appeals; and
(2) a finding of the Board of Disciplinary Appeals to
the supreme court.
Sec. 81.0752. CONFIDENTIALITY. (a) All types of
information, proceedings, hearing transcripts, and statements
presented to a panel of a district grievance committee are
confidential and may not be disclosed to any person other than the
chief disciplinary counsel unless:
(1) disclosure is ordered by a court; or
(2) the panel finds that professional misconduct
occurred and a sanction other than a private reprimand is imposed
against the respondent attorney.
(b) If the requirements of Subsection (a)(2) are met, the
panel of the district grievance committee shall, on request, make
the information, proceedings, hearing transcripts, or statements
available to the public.
Sec. 81.0753. RULES REGARDING GRIEVANCES. The supreme
court shall promulgate rules regarding the classification and
disposition of grievances, including rules specifying time limits
for each stage of the grievance resolution process.
SECTION 16. Section 81.079, Government Code, is amended to
read as follows:
Sec. 81.079. PUBLIC NOTIFICATION AND INFORMATION. (a) To
provide information to the public relating to the attorney
grievance process, the state bar shall:
(1) develop a brochure written in Spanish and English
describing the bar's grievance process;
(2) establish a toll-free "800" telephone number for
public access to the chief disciplinary counsel's office in Austin
and list the number in telephone directories statewide;
(3) describe the bar's grievance process in the bar's
telephone directory listings statewide; and
(4) make grievance [complaint] forms written in
Spanish and English available in each county courthouse.
(b) Each attorney practicing law in this state shall provide
notice to each of the attorney's clients of the existence of a
grievance process by:
(1) making grievance [complaint] brochures prepared
by the state bar available at the attorney's place of business;
(2) posting a sign prominently displayed in the
attorney's place of business describing the process;
(3) including the information on a written contract
for services with the client; or
(4) providing the information in a bill for services
to the client.
SECTION 17. Section 81.113, Government Code, is amended by
adding Subsection (c) to read as follows:
(c) The state bar shall recognize, prepare, or administer
continuing education programs for members of the state bar. A
member of the state bar must participate in the programs to the
extent required by the supreme court to maintain the person's state
bar membership.
SECTION 18. Chapter 81, Government Code, is amended by
adding Subchapter I to read as follows:
SUBCHAPTER I. EXECUTIVE COMMITTEE
Sec. 81.121. EXECUTIVE COMMITTEE. (a) The executive
committee consists of:
(1) the president, the president-elect, and the
immediate past president of the state bar;
(2) the chair of the board of directors;
(3) the president of the Texas Young Lawyers
Association; and
(4) additional members appointed by the board of
directors.
(b) The general counsel and executive director serve as ex
officio members of the committee.
(c) The president of the state bar serves as chair of the
committee. The chair of the board of directors serves as vice chair
of the committee and presides over committee meetings in the
committee chair's absence.
Sec. 81.122. DUTIES OF EXECUTIVE COMMITTEE. The executive
committee shall:
(1) on the recommendation of the president-elect of
the state bar, approve the creation of additional standing and
special committees of the state bar in accordance with Section
81.123;
(2) conduct a comprehensive review of standing and
special committees of the state bar at least biennially and more
frequently as the executive committee determines necessary to
assess whether there is:
(A) a continued need for each committee; and
(B) unnecessary overlap of the committees'
activities; and
(3) perform other duties as delegated by the board of
directors.
Sec. 81.123. APPROVAL OF COMMITTEES. Before the executive
committee may approve the creation of an additional standing or
special committee of the state bar, the committee must:
(1) study and determine the fiscal impact creating the
committee would have on the state bar budget; and
(2) poll the chair of each existing committee and
conduct a review to determine whether the matter to be addressed by
the proposed committee could be addressed by an existing committee.
SECTION 19. Sections 81.020(e) and 81.029(l), Government
Code, are repealed.
SECTION 20. Not later than January 1, 2004, the executive
director of the State Bar of Texas or the executive director's
designee shall prepare the written policy statement required by
Section 81.029, Government Code, as amended by this Act.
SECTION 21. (a) The changes in law made by this Act in the
prohibitions or qualifications applying to members of the board of
directors of the State Bar of Texas do not affect the entitlement of
a member serving on the board immediately before September 1, 2003,
to continue to serve and function as a member of the board for the
remainder of the member's term. Those changes in law apply only to
a member appointed on or after September 1, 2003.
(b) Section 81.036, Government Code, as added by this Act,
applies only to a complaint filed with the State Bar of Texas on or
after the effective date of this Act, regardless of whether the
conduct or act that is the subject of the complaint occurred or was
committed before, on, or after the effective date of this Act.
(c) Section 81.054, Government Code, as amended by this Act,
applies to membership fees for renewal of a membership in the State
Bar of Texas that become due on or after the effective date of this
Act. Membership fees for renewal of a membership that became due
before the effective date of this Act are governed by the law in
effect on the date the membership fees became due, and the former
law is continued in effect for that purpose.
(d) Section 81.072, Government Code, as amended by this Act,
and Sections 81.073, 81.074, 81.075, 81.0751, 81.0752, and 81.0753,
Government Code, as added by this Act, apply to a grievance filed on
or after the effective date of this Act, regardless of whether the
conduct or act that is the subject of the grievance occurred before,
on, or after the effective date of this Act. A grievance filed
before the effective date of this Act is governed by the law in
effect on the date the grievance was filed, and the former law is
continued in effect for that purpose.
SECTION 22. This Act takes effect September 1, 2003.