79R9204 T
By: Deshotel H.B. No. 2365
A BILL TO BE ENTITLED
AN ACT
relating to the State Commission on Judicial Conduct.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 33.0211, Government Code, is amended to
read as follows:
§ 33.0211. Informal Complaints
(a) The commission shall maintain a file on each written
complaint filed with the commission. The file must include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the
commission;
(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 commission closed the file without taking action other than
to investigate the complaint.
(b) The commission, at least quarterly until final
disposition of the complaint, shall notify the person filing the
complaint of the status of the investigation unless the notice
would jeopardize an undercover investigation.
(c) The commission shall conduct a preliminary
investigation of the circumstances surrounding an allegation or
appearance of misconduct or disability of a judge to determine if
the allegation or appearance is unfounded or frivolous.
(d) If, after conducting a preliminary investigation under
this section, the commission determines that an allegation or
appearance of misconduct or disability is unfounded or frivolous,
the commission shall terminate the investigation.
(e) If, after conducting a preliminary investigation under
this section, the commission does not determine that an allegation
or appearance of misconduct or disability is unfounded or
frivolous, the commission shall file a Formal Complaint pursuant to
Section 33.0212 of the Government Code.
(f) Investigations of Informal Complaints and proceedings
conducted pursuant to a Formal Complaint will remain confidential
until and unless the commission decides to issue a public sanction
against a judge or to initiate removal proceedings against a judge.
SECTION 2. Section 33.0212, Government Code, is created and
reads as follows:
§ 33.0212. Formal Complaints
(a) If, after preliminary investigation, the commission
does not determine that an informal complaint is unfounded or
frivolous, a formal complaint will be filed with the commission.
(b) An individual may file with the commission a sworn
complaint, on a form prescribed by the commission, alleging that a
Judge has violated a rule adopted by, a law administered and
enforced by, or a Canon administered and enforced by the
commission. If an individual who made an informal complaint
against a judge requests that his or her identity be kept
confidential, then the Executive Director shall sign the complaint
as the complainant provided that the Executive Director has
probable cause to believe that a judge violated a rule adopted by, a
law administered and enforced by, or a Canon administered and
enforced by the commission. The Executive Director or his or her
designee may also assist an individual in the preparation of a
complaint when the individual does not request that his or her
identity be kept confidential.
(c) A complaint filed under this section must be in writing
and under oath and must set forth in simple, concise, and direct
statements:
(1) the name of the complainant;
(2) the street or mailing address of the complainant
(unless the complainant is the Executive Director);
(3) the name of each respondent;
(4) the position or title of each respondent;
(5) the nature of the alleged violation, including the
specific rule or provision of law or judicial Canon alleged to have
been violated;
(6) a statement of the facts constituting the alleged
violation and the dates on which or period of time in which the
alleged violation occurred; and
(7) all documents or other material available to the
complainant that are relevant to the allegation, a list of all
documents or other material within the knowledge of the complainant
and available to the complainant that are relevant to the
allegation but that are not in the possession of the complainant,
including the location of the documents, if known, and a list of all
documents or other material within the knowledge of the complainant
that are unavailable to the complainant and that are relevant to the
complaint, including the location of the documents, if known.
(c) The complaint must be accompanied by an affidavit
stating that the information contained in the complaint is either
correct or that the complainant has good reason to believe and does
believe that the violation occurred. If the complaint is based on
information and belief, the complaint shall state the source and
basis of the information and belief. The complainant may swear to
the facts by oath before a notary public or other authorized
official.
(d) The complaint must state on its face an allegation that,
if true, constitutes violated a rule adopted by, a law administered
and enforced by, or a Canon administered and enforced by the
commission.
(e) Nothing in this chapter shall preclude an individual
from filing a sworn complaint directly without having made an
informal complaint.
SECTION 3. Section 33.022, Government Code, is amended to
read as follows:
§ 33.022. Investigations and Formal Proceedings.
(a) The commission may conduct a preliminary investigation
of the circumstances surrounding an allegation or appearance of
misconduct or disability of a judge to determine if the allegation
or appearance is unfounded or frivolous.
(b) If, after conducting a preliminary investigation under
this section, the commission determines that an allegation or
appearance of misconduct or disability is unfounded or frivolous,
the commission shall terminate the investigation.
(c) If, after conducting a preliminary investigation under
this section, the commission does not determine that an allegation
or appearance of misconduct or disability is unfounded or
frivolous, the commission:
(1) If after the investigation has been completed the
commission concludes that formal proceedings will be instituted,
the matter shall be entered in a docket to be kept for that purpose
and written notice of the institution of formal proceedings shall
be served on the judge without delay. The proceedings shall be
entitled:
"Before the State Commission on Judicial Conduct
Inquiry Concerning a Judge, No.____"
and, the commission shall:
(A) conduct a full investigation of the
circumstances surrounding the allegation or appearance of
misconduct or disability; and
(B) notify the judge in writing of:
(i) the commencement of the investigation
formal proceedings under this section; and
(ii) the nature of the allegation or
appearance of misconduct or disability being investigated; and
(B) provide a copy of the sworn complaint to the
judge.
(2) and it may:
(A) order the judge to:
(i) submit a written response to the sworn
complaint or allegation or appearance of misconduct or disability;
or
(ii) appear informally before the
commission to provide testimony;
(B) order the deposition of any person; or
(C) request the complainant to appear informally
before the commission.
(d) (b) The commission shall serve an order issued by the
commission under Subsection (c)(a)(2)(B) on the person who is the
subject of the deposition and the judge who is the subject of the
investigation. The order must be served within a reasonable time
before the date of the deposition.
(e) (c) The commission may file an application in a district
court to enforce an order issued by the commission under Subsection
(c) (a)(2)(B).
(f) (d) The commission shall notify the judge in writing of
the disposition of a formal proceedings conducted by the commission
under this section.
(g) If after the investigation has been completed the
commission concludes that formal proceedings will be instituted,
the matter shall be entered in a docket to be kept for that purpose
and written notice of the institution of formal proceedings shall
be served on the judge without delay. The proceedings shall be
entitled:
"Before the State Commission on Judicial Conduct Inquiry
Concerning a Judge, No.____"
(h) (e) The notice shall specify in ordinary and concise
language the charges against the judge and the alleged facts on
which the charges are based and the specific standards contended to
have been violated. The judge is entitled to file a written answer
to the charges against the judge not later than the 15th day after
the notice is served on the judge, and the notice shall so advise
the judge.
(i) (f) The notice, which shall include the formal
complaint, shall be served on the judge or the judge's attorney of
record by personal service of a copy of the notice by a person
designated by the chairperson. The person serving the notice shall
promptly notify the clerk in writing of the date on which the notice
was served. If it appears to the chairperson on affidavit that,
after reasonable effort during a period of 10 days, personal
service could not be had, service may be made by mailing by
registered or certified mail copies of the notice addressed to the
judge at the judge's chambers or at the judge's last known residence
in an envelope marked "personal and confidential." The date of
mailing shall be entered in the docket.
(j) (g) A judge at the judge's request may elect to have any
hearing open to the public or to persons designated by the judge.
The right of a judge to an open hearing does not preclude placing
witnesses under the rule as provided by the Texas Rules of Civil
Procedure.
(k) (h) A judge is not entitled to a jury trial in formal
proceedings before a special master or the commission.
(l) (i) The commission shall adopt procedures for hearing
from judges and complainants appearing before the commission. All
evidence that will be considered by the commission in formal
proceedings against a judge, including but not limited to all
documentary evidence, all witness statements, all video recordings
and all audio recordings, shall be provided to the judge not later
than 30 days before the hearing on the formal complaint. The
procedures shall ensure the confidentiality of a complainant's
identity as provided under Section 33.0321.
(j) Where a formal complaint is based primarily upon the
conduct of a judge in court, whether in the court in which the judge
presides or in a court where a judge is a party or witness, and a
record of the proceedings was made, the commission shall procure a
transcript of the proceedings and, if such exist, an audio or video
recording of the proceedings for consideration as evidence by the
commission, and the judge shall not have a right to confront or
cross examine the complainant.
(k) Where a formal complaint is based primarily upon the
sworn complaint of an individual alleging misconduct outside of
official proceedings, or alleging misconduct to have occurred in a
court that is not a court of record and no record exists, or
alleging misconduct that occurred in a court of record but the
conduct itself would not likely be reflected in the record, then the
judge who is the subject of the formal complaint shall have a
reasonable, restricted right to confront and cross examine evidence
and witnesses against him. This right of confrontation and cross
examination can be accomplished through written interrogatories or
requests for admission, the answers to which shall be verified
under oath, or through any other procedures developed by the
commission which are reasonably likely to reveal the whole truth of
a matter and are reasonably likely to reveal whether a complaining
witness is motivated by malice, vindictiveness, intolerance,
prejudice, bias or jealousy. Any procedures promulgate by the
commission under this section shall be provided to the judge with
the copy of the formal complaint.
SECTION 4. This Act takes effect September 1, 2005.
SECTION 5. The importance of this legislation and the
crowded condition of the calendars in both houses create an
emergency and an imperative public necessity that the
constitutional rule requiring bills to be read on three separate
days in each house be suspended, and this rule is hereby suspended.