By: Duncan S.B. No. 1107
Substitute the following for S.B. No. 1107:
By: Hartnett C.S.S.B. No. 1107
A BILL TO BE ENTITLED
AN ACT
relating to the assignment and compensation of certain justices or
judges as visiting judges and to service credit in the judicial
retirement system for certain visiting judges.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 25.0022, Government Code, as amended by
Chapters 65, 440, 468, and 820, Acts of the 77th Legislature,
Regular Session, 2001, is reenacted and amended to read as follows:
Sec. 25.0022. ADMINISTRATION OF STATUTORY PROBATE COURTS.
(a) "Statutory probate court" has the meaning assigned by Section
3, Texas Probate Code.
(b) The judges of the statutory probate courts shall elect
from their number a presiding judge of the statutory probate
courts. The presiding judge serves a four-year term from the date
of qualification as the presiding judge.
(c) The presiding judge may perform the acts necessary to
carry out this section and to improve the management of the
statutory probate courts and the administration of justice.
(d) The presiding judge shall:
(1) ensure the promulgation of local rules of
administration in accordance with policies and guidelines set by
the supreme court;
(2) advise local statutory probate court judges on
case flow management practices and auxiliary court services;
(3) perform a duty of a local administrative statutory
probate court judge if the local administrative judge does not
perform that duty;
(4) appoint an assistant presiding judge of the
statutory probate courts;
(5) call and preside over annual meetings of the
judges of the statutory probate courts at a time and place in the
state as designated by the presiding judge;
(6) call and convene other meetings of the judges of
the statutory probate courts as considered necessary by the
presiding judge to promote the orderly and efficient administration
of justice in the statutory probate courts;
(7) study available statistics reflecting the
condition of the dockets of the probate courts in the state to
determine the need for the assignment of judges under this section;
and
(8) compare local rules of court to achieve uniformity
of rules to the extent practical and consistent with local
conditions.
(e) In addition to all other compensation, expenses, and
perquisites authorized by law, the presiding judge shall be paid
for performing the duties of a presiding judge an annual salary
equal to the maximum salary authorized by Section 74.051(b) for a
presiding judge of an administrative judicial region. The
presiding judge is entitled to receive reasonable expenses incurred
in administering those duties. The salary and expenses are paid by
the counties that have statutory probate courts, apportioned
according to the number of statutory probate courts in the county.
(f) Each county pays annually to the presiding judge, from
fees collected pursuant to Section 118.052(2)(A)(vi), Local
Government Code, the amount of the salary apportioned to it as
provided by this section and the other expenses authorized by this
section. The presiding judge shall place each county's payment of
salary and other expenses in an administrative fund, from which the
salary and other expenses are paid. The salary shall be paid in
equal monthly installments.
(g) The assistant presiding judge may assign probate judges
as provided by this section and perform the office of presiding
judge:
(1) on the death or resignation of the presiding judge
and until a successor presiding judge is elected; or
(2) when the presiding judge is unable to perform the
duties of the office because of absence, disqualification,
disabling illness, or other incapacity.
(h) A judge or a former or retired judge of a statutory
probate court may be assigned to hold court in a statutory probate
court, county court, or any statutory court exercising probate
jurisdiction when:
(1) a statutory probate judge requests assignment of
another judge to the judge's court;
(2) a statutory probate judge is absent, disabled, or
disqualified for any reason;
(3) a statutory probate judge is present or is trying
cases as authorized by the constitution and laws of this state and
the condition of the court's docket makes it necessary to appoint an
additional judge;
(4) the office of a statutory probate judge is vacant;
(5) the presiding judge of an administrative judicial
district requests the assignment of a statutory probate judge to
hear a probate matter in a county court or statutory county court;
(6) a motion to recuse the judge of a statutory probate
court has been filed;
(7) a county court judge requests the assignment of a
statutory probate judge to hear a probate matter in the county
court; or
(8) a local administrative statutory probate court
judge requests the assignment of a statutory probate judge to hear a
matter in a statutory probate court.
(i) A judge assigned under this section has the
jurisdiction, powers, and duties given by Sections 5, 5A, 5B, 606,
607, and 608, Texas Probate Code, to statutory probate court judges
by general law.
(j) [To be eligible for assignment under this section a
former or retired judge of a statutory probate court must:
[(1) not have been removed from office; and
[(2) certify under oath to the presiding judge, on a
form prescribed by the state board of regional judges, that the
judge did not resign from office after having received notice that
formal proceedings by the State Commission on Judicial Conduct had
been instituted as provided by Section 33.022 and before the final
disposition of the proceedings.
[(k)] Except as otherwise provided by this section, the
salary, compensation, and expenses of a judge assigned under this
section are paid in accordance with state law.
(k) [(l)] The daily compensation of a former or retired
judge for purposes of this section is set at an amount equal to the
daily compensation of a judge of a statutory probate court in the
county in which the former or retired judge is assigned. A former
or retired judge assigned to a county that does not have a statutory
probate court shall be paid an amount equal to the daily
compensation of a judge of a statutory probate court in the county
where the assigned judge was last elected.
(l) [(m)] An assigned judge is entitled to receive
reasonable and necessary expenses for travel, lodging, and food.
The assigned judge shall furnish the presiding judge, for
certification, an accounting of those expenses with a statement of
the number of days the judge served.
(m) [(n) A judge assigned under this section has the
jurisdiction, powers, and duties given by Sections 5, 5A, 5B, 606,
607, and 608, Texas Probate Code, to statutory probate court judges
by general law.
[(n)] The presiding judge shall certify to the county judge
in the county in which the assigned judge served:
(1) the expenses approved under Subsection (l) [(m)];
and
(2) a determination of the assigned judge's salary,
unless the salary is paid by the state in accordance with Subsection
(v).
(n) [(o)] A judge who has jurisdiction over a suit pending
in one county may, unless a party objects, conduct any of the
judicial proceedings except the trial on the merits in a different
county.
(o) The county in which the assigned judge served shall pay
out of the general fund of the county:
(1) expenses certified under Subsection (m) [(n)] to
the assigned judge; and
(2) the salary certified under Subsection (m) [(n)] to
the county in which the assigned judge serves, or, if the assigned
judge is a former or retired judge, to the assigned judge.
[(p) Except as otherwise provided by this section, the
salary, compensation, and expenses of a judge assigned under this
section are paid in accordance with state law.]
(p) In addition to all compensation and expenses authorized
by this section and other law, a judge who is assigned to a court
outside the county of the judge's residence is entitled to receive
$25 for each day or fraction of a day served. The county in which
the judge served shall pay the additional compensation from the
county's general fund on certification by the presiding judge.
[(q) The daily compensation of a former or retired judge for
purposes of this section is set at an amount equal to the daily
compensation of a judge of a statutory probate court in the county
in which the former or retired judge is assigned. A former or
retired judge assigned to a county that does not have a statutory
probate court shall be paid an amount equal to the daily
compensation of a judge of a statutory probate court in the county
where the assigned judge was last elected.]
(q) When required to attend an annual or special meeting
prescribed by this section, a judge is entitled to receive, in
addition to all other compensation allowed by law, actual and
necessary travel expenses incurred going to and returning from the
place of the meeting and actual and necessary expenses while
attending the meeting. On certification by the presiding judge,
the judge's county of residence shall pay the expenses from the
county's general fund.
[(r) An assigned judge is entitled to receive reasonable and
necessary expenses for travel, lodging, and food. The assigned
judge shall furnish the presiding judge, for certification, an
accounting of those expenses with a statement of the number of days
the judge served.]
(s) Except as provided by Subsection (v), Chapter 74 and
Subchapter I, Chapter 75, do not apply to the assignment under this
section of statutory probate court judges.
[(s) The presiding judge shall certify to the county judge
in the county in which the assigned judge served:
[(1) the expenses approved under Subsection (r); and
[(2) a determination of the assigned judge's salary.]
(s) The presiding judge may appoint any special or standing
committees of statutory probate court judges necessary or desirable
for court management and administration.
(t) [The county in which the assigned judge served shall pay
out of the general fund of the county:
[(1) expenses certified under Subsection (s) to the
assigned judge; and
[(2) the salary certified under Subsection (s) to the
county in which the assigned judge serves, or, if the assigned judge
is a former or retired judge, to the assigned judge.
[(u) In addition to all compensation and expenses
authorized by this section and other law, a judge who is assigned to
a court outside the county of the judge's residence is entitled to
receive $25 for each day or fraction of a day served. The county in
which the judge served shall pay the additional compensation from
the county's general fund on certification by the presiding judge.
[(v) When required to attend an annual or special meeting
prescribed by this section, a judge is entitled to receive, in
addition to all other compensation allowed by law, actual and
necessary travel expenses incurred going to and returning from the
place of the meeting and actual and necessary expenses while
attending the meeting. On certification by the presiding judge,
the judge's county of residence shall pay the expenses from the
county's general fund.
[(w) The presiding judge may perform the acts necessary to
carry out the provisions of this section and to improve the
management of the statutory probate courts and the administration
of justice.
[(x) Chapter 74 and Subchapter I, Chapter 75, do not apply
to the assignment under this section of statutory probate court
judges.
[(y)] To be eligible for assignment under this section a
former or retired judge of a statutory probate court must:
(1) not have been removed from office; and
(2) certify under oath to the presiding judge, on a
form prescribed by the state board of regional judges, that the
judge did not resign from office after having received notice that
formal proceedings by the State Commission on Judicial Conduct had
been instituted as provided in Section 33.022 and before the final
disposition of the proceedings.
(u) [(y)] In addition to the eligibility requirements under
Subsection (t) [(x)], to be eligible for assignment under this
section in the judge's county of residence, a former or retired
judge of a statutory probate court must certify to the presiding
judge a willingness not to:
(1) appear and plead as an attorney in any court in the
judge's county of residence for a period of two years; and
(2) accept appointment as a guardian ad litem,
guardian of the estate of an incapacitated person, or guardian of
the person of an incapacitated person in any court in the judge's
county of residence for a period of two years.
(v) Notwithstanding any other law, the salary of a judge or
a former or retired judge assigned under Subsection (h)(5) or (7) to
serve in a statutory county court or constitutional county court
shall be paid by the state in the same manner as the salary of a
retired district judge assigned under Chapter 74 to serve in a
district court or statutory county court is paid by the state.
(w) For an assigned judge whose salary is paid by the state
in accordance with Subsection (v), the presiding judge shall
certify to the state a determination of the assigned judge's
salary.
SECTION 2. The heading to Section 74.003, Government Code,
is amended to read as follows:
Sec. 74.003. ASSIGNMENT OF JUSTICES AND JUDGES FOR
APPELLATE COURTS [JUDGES].
SECTION 3. Section 74.003, Government Code, is amended by
amending Subsection (b) and adding Subsections (f), (g), and (h) to
read as follows:
(b) The chief justice of the supreme court may assign a
qualified retired justice or judge of the supreme court, of the
court of criminal appeals, or of a court of appeals to a court of
appeals for active service regardless of whether a vacancy exists
in the court to which the justice is assigned. To be eligible for
assignment under this subsection, a retired justice or judge must:
(1) have served as an active justice or judge for at
least 96 months in a district, statutory probate, statutory county,
or appellate court, with at least 48 of those months in an appellate
court;
(2) not have been removed from office;
(3) certify under oath to the chief justice of the
supreme court, on a form prescribed by the chief justice, that:
(A) the justice or judge has never been publicly
reprimanded or censured by the State Commission on Judicial
Conduct; and
(B) the justice or judge:
(i) did not resign or retire from office
after the State Commission on Judicial Conduct notified the justice
or judge of the commencement of a full investigation into an
allegation or appearance of misconduct or disability of the justice
or judge as provided in Section 33.022 and before the final
disposition of that investigation; or
(ii) if the justice or judge did resign from
office under circumstances described by Subparagraph (i), the
justice or judge was not publicly reprimanded or censured as a
result of the investigation;
(4) annually demonstrate that the justice or judge has
completed in the past calendar year the educational requirements
for active appellate court justices or judges; and
(5) certify to the chief justice of the supreme court a
willingness not to appear and plead as an attorney in any court in
this state for a period of two years.
(f) For the purposes of Subsection (b)(1), a month of
service is calculated as a calendar month or a portion of a calendar
month in which a justice or judge was authorized by election or
appointment to preside.
(g) Notwithstanding any other provision of law, an active
district court judge may be assigned to hear a matter pending in an
appellate court.
(h) Subsection (b)(1) does not apply to a retired justice of
the supreme court.
SECTION 4. Sections 74.041 and 74.053, Government Code, are
amended to read as follows:
Sec. 74.041. DEFINITIONS. In this chapter:
(1) "Active judge" means a person who holds a judicial
office.
(2) "Administrative region" means an administrative
judicial region created by Section 74.042.
(3) "Former judge" means a person who has served as an
active judge in a district, statutory probate, statutory county, or
appellate court, but who is not a retired judge.
(4) [(2)] "Presiding judge" means the presiding judge
of an administrative region.
(5) "Retired judge" means:
(A) a retiree; or
(B) a person who has served as an active judge for
at least 96 months in a statutory probate or statutory county court
and has retired under the Texas County and District Retirement
System.
(6) [(3)] "Retiree" means a person who has retired
under the Judicial Retirement System of Texas, the Judicial
Retirement System of Texas Plan One, or the Judicial Retirement
System of Texas Plan Two.
(7) "Senior judge" means a retiree who has elected to
be a judicial officer under Section 75.001.
Sec. 74.053. OBJECTION TO [ASSIGNED] JUDGE ASSIGNED TO A
TRIAL COURT. (a) When a judge is assigned to a trial court under
this chapter:
(1) the order of assignment must state whether the
judge is an active, former, retired, or senior judge; and
(2) the presiding judge shall, if it is reasonable and
practicable and if time permits, give notice of the assignment to
each attorney representing a party to the case that is to be heard
in whole or part by the assigned judge.
(b) If a party to a civil case files a timely objection to
the assignment, the judge shall not hear the case. Except as
provided by Subsection (d), each party to the case is only entitled
to one objection under this section for that case.
(c) An objection under this section must be filed not later
than the seventh day after the date that the party receives actual
notice of the assignment or before the date that the first hearing
or trial, including pretrial hearings, commences, whichever date
occurs earlier. The presiding judge may extend the time to file an
objection under this section on written motion by a party who
demonstrates good cause [over which the assigned judge is to
preside].
(d) An assigned [A former] judge or justice who was defeated
in the last primary or general election in which the judge or
justice was a candidate for the judicial office held by the judge or
justice [not a retired judge] may not sit in a case if either party
objects to the judge or justice.
(e) In this section, "party" includes multiple parties
aligned in a case as determined by the presiding judge.
(f) For purposes of this section, notice of an assignment
may be given and an objection to an assignment may be filed by
electronic mail.
(g) An active district judge assigned under this chapter is
not subject to objection.
SECTION 5. Subsections (a) and (b), Section 74.054,
Government Code, are amended to read as follows:
(a) Except as provided by Subsections (b) and (c), the
following judges may be assigned as provided by this chapter by the
presiding judge of the administrative region in which the assigned
judge resides:
(1) an active [a regular] district, constitutional
county, or statutory county court judge in this state;
(2) a senior [district or appellate] judge [who is a
retiree under Subtitle D or E of Title 8,] who has consented to be
subject to assignment[,] and who is on the list maintained by the
presiding judge under this chapter;
(3) a former district or appellate judge, retired or
former statutory probate court judge, or retired or former
statutory county court judge who certifies to the presiding judge a
willingness to serve and who is on the list maintained by the
presiding judge as required by this chapter;
(4) a retiree or a former judge whose last judicial
office before retirement was justice or judge of the supreme court,
the court of criminal appeals, or a court of appeals and who has
been assigned by the chief justice to the administrative judicial
region in which the retiree or former judge resides for
reassignment by the presiding judge of that region to a district or
statutory county court in the region; and
(5) an active judge or justice of the supreme court,
the court of criminal appeals, or a court of appeals who has had
trial court experience.
(b) An active [A regular] statutory county court judge may
not be assigned to hear a matter pending in a district court outside
the county of the judge's residence.
SECTION 6. Section 74.055, Government Code, is amended by
amending Subsections (c) and (e) and adding Subsections (f) and (g)
to read as follows:
(c) To be eligible to be named on the list, a retired or
former judge must:
(1) have served as an active [a] judge for at least 96
[48] months in a district, statutory probate, statutory county, or
appellate court;
(2) have developed substantial experience in the
judge's area of specialty;
(3) not have been removed from office;
(4) certify under oath to the presiding judge, on a
form prescribed by the state board of regional judges, that:
(A) the judge has never been publicly reprimanded
or censured by the State Commission on Judicial Conduct; and
(B) the judge:
(i) did not resign or retire from office
after [having received notice that formal proceedings by] the State
Commission on Judicial Conduct notified the judge of the
commencement of a full investigation into an allegation or
appearance of misconduct or disability of the judge [had been
instituted] as provided in Section 33.022 and before the final
disposition of that investigation; or
(ii) if the judge did resign from office
under circumstances described by Subparagraph (i), was not publicly
reprimanded or censured as a result of the investigation [the
proceedings];
(5) annually demonstrate that the judge has completed
in the past calendar year the educational requirements for active
district, statutory probate, and statutory county court judges; and
(6) certify to the presiding judge a willingness not
to appear and plead as an attorney in any court in this state for a
period of two years.
(e) For purposes of Subsection (c)(1), a month of service is
calculated as a calendar month or a portion of a calendar month in
which a judge was authorized by election or appointment [by the
governor] to preside.
(f) A former or retired judge is ineligible to be named on
the list if the former or retired judge is identified in a public
statement issued by the State Commission on Judicial Conduct as
having resigned or retired from office in lieu of discipline.
(g) A former or retired judge named on the list shall
immediately notify the presiding judge of a full investigation by
the State Commission on Judicial Conduct into an allegation or
appearance of misconduct or disability by the judge. A judge who
does not notify the presiding judge of an investigation as required
by this subsection is ineligible to remain on the list.
SECTION 7. Section 74.061, Government Code, is amended by
amending Subsection (c) and adding Subsection (j) to read as
follows:
(c) The salary of a retired judge or justice while assigned
under this chapter shall be paid out of money appropriated from the
general revenue fund for that purpose in an amount equal to the
compensation received from state and county sources of the judge of
the court to which he is assigned. The salary of a retired judge or
justice while assigned shall be determined pro rata for the period
of time that the judge or justice actually sits as the assigned
judge. The salary of a retired statutory county court judge
assigned under this chapter to serve in a district court or
statutory county court that has the civil jurisdiction of a
district court shall be paid by the state in the same manner as the
salary of a retired district judge assigned under this chapter to
serve in a district court or statutory county court that has the
civil jurisdiction of a district court is paid by the state.
(j) A judge or justice who sits as an assigned judge for half
a day or less shall be compensated in an amount that is equal to
one-half of the amount to which a judge or justice is entitled for
sitting as an assigned judge for a full day under this section.
SECTION 8. Section 75.551, Government Code, is amended by
amending Subsections (a), (c), and (d) and adding Subsections (e),
(f), and (g) to read as follows:
(a) When a judge or justice is assigned to an appellate
court under this chapter or Chapter 74:
(1) the order of assignment must state whether the
judge or justice is an active, former, retired, or senior judge or
justice; and
(2) [,] the person who assigns the judge or justice
shall, if it is reasonable and practicable and if time permits, give
notice of the assignment to each attorney representing a party to
the case that is to be heard in whole or part by the assigned judge
or justice.
(c) An objection under this section must be filed not later
than the seventh day after the date that the party receives actual
notice of the assignment or before the date that the case is
submitted to the court, whichever date occurs earlier. The court
may extend the time to file an objection under this section on a
showing of good cause [first hearing in which the assigned judge or
justice is assigned to sit].
(d) A [former] judge or justice who was defeated in the last
primary or general election in which the judge or justice was a
candidate for the judicial office held by the judge or justice [not
a retired judge or justice] may not sit in an appellate case if
either party objects to the judge or justice.
(e) In this section, "party" includes multiple parties
aligned in a case as determined by the appellate court.
(f) For purposes of this section, notice of an assignment
may be given and an objection to an assignment may be filed by
electronic mail.
(g) An active judge assigned under this chapter is not
subject to an objection.
SECTION 9. Subchapter B, Chapter 835, Government Code, is
amended by adding Section 835.104 to read as follows:
Sec. 835.104. CONTRIBUTIONS FOR VISITING DISTRICT JUDGES.
A visiting or assigned state district judge is not entitled to
receive service credit in either judicial retirement system for any
month in which the judge makes a payroll contribution that is less
than the amount of payroll contribution of a full-time district
judge. A visiting or assigned state district judge is not
considered to have made the required monthly contribution until the
judge offsets any deficiency with a direct payment to the
retirement system or through an actual cash reduction of future
state salary.
SECTION 10. Subchapter B, Chapter 840, Government Code, is
amended by adding Section 840.107 to read as follows:
Sec. 840.107. CONTRIBUTIONS FOR VISITING DISTRICT JUDGES.
A visiting or assigned state district judge is not entitled to
receive service credit in either judicial retirement system for any
month in which the judge makes a payroll contribution that is less
than the amount of payroll contribution of a full-time district
judge. A visiting or assigned state district judge is not
considered to have made the required monthly contribution until the
judge offsets any deficiency with a direct payment to the
retirement system or through an actual cash reduction of future
state salary.
SECTION 11. Subsection (d), Section 74.055, Government
Code, is repealed.
SECTION 12. (a) Sections 74.053 and 75.551, Government
Code, as amended by this Act, apply only to a case that is pending or
commences on or after September 1, 2003.
(b) Except as provided by Subsections (a) and (c) of this
section, this Act applies only to the assignment of a judge under
Section 25.0022, Government Code, or a judge or justice under
Chapter 74 or 75, Government Code, made on or after September 1,
2003. An assignment made before September 1, 2003, is governed by
the law in effect at the time the assignment is made, and that law is
continued in effect for that purpose.
(c) The changes in law made by this Act to Chapters 74, 75,
835, and 840, Government Code, do not apply to a person who
immediately before September 1, 2003, meets the eligibility
requirements to be assigned by the chief justice of the supreme
court under Subsection (b), Section 74.003, or Chapter 75,
Government Code, or to be named on a list of retired and former
judges under Subsection (c), Section 74.055, Government Code, other
than the certification requirement under Subdivision (6),
Subsection (c), Section 74.055, Government Code, and the former law
is continued in effect for determining that person's eligibility
for those purposes.
SECTION 13. This Act takes effect September 1, 2003.