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.