80R19242 KLA-D

By: Wentworth S.B. No. 406

Substitute the following for S.B. No. 406:

By: HartnettC.S.S.B. No. 406C.S.S.B. No. 406 Hartnett C.S.S.B. No. 406

A BILL TO BE ENTITLED

AN ACT

relating to a motion for recusal or disqualification of a statutory probate court judge.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 25.00255, Government Code, is amended by amending Subsections (f), (g), (i), and (k) and adding Subsections (i-1) and (i-2) to read as follows:

(f) Before further proceedings in a case in which a motion for the recusal or disqualification of a judge has been filed, the judge shall:

(1) recuse himself or herself; or

(2) request that the presiding judge of the statutory probate courts assign a judge to hear the motion, subject to Subsection (i)(1)(B) or (i-1).

(g) A judge who recuses himself or herself:

(1) shall enter an order of recusal and request that the presiding judge of the statutory probate courts assign a judge to hear the motion for recusal or disqualification, subject to Subsection (i)(1)(B) or (i-1); and

(2) may not take other action in the case except for good cause stated in the order in which the action is taken.

(i) After receiving a request under Subsection (f) or (g) [or (h)], the presiding judge of the statutory probate courts shall:

(1) except as provided by Subsection (i-1), immediately:

(A) set a hearing on the motion for recusal or disqualification before himself or herself or a judge designated by the presiding judge; or

(B) at the presiding judge's discretion, request the chief justice of the supreme court or the presiding judge of the administrative judicial region in which the statutory probate court in which the motion was filed is located to appoint a judge to hear the motion;

(2) cause notice of the hearing to be given to all parties or their counsel to the case; and

(3) make other orders, including orders for interim or ancillary relief, in the pending case.

(i-1) If the party filing the motion for recusal or disqualification against a judge specifies in the motion that the party desires the presiding judge of the administrative judicial region in which the statutory probate court in which the motion was filed is located to assign another judge to hear the motion, the judge against whom the motion was filed shall forward that request to the presiding judge of the statutory probate courts. Immediately on receiving the request, the presiding judge of the statutory probate courts shall request the presiding judge of the administrative judicial region to assign a judge to hear the motion.

(i-2) A judge designated by the presiding judge of the statutory probate courts to hear a motion for recusal or disqualification under Subsection (i)(1)(A) must be from a county other than the county in which the statutory probate court in which the motion was filed is located.

(k) A party may file a motion for sanctions alleging that another party in the case filed a motion for the recusal or disqualification of a judge solely to delay the case and without sufficient cause. The presiding judge or the judge assigned [by the presiding judge] to hear the motion for recusal may approve a motion for sanctions authorized by Rule 215.2(b), Texas Rules of Civil Procedure.

SECTION 2. Subchapter B, Chapter 25, Government Code, is amended by adding Section 25.00256 to read as follows:

Sec. 25.00256. TERTIARY RECUSAL MOTION AGAINST JUDGE. (a) In this section, "tertiary recusal motion" means a third or subsequent motion for recusal or disqualification filed in a case against any statutory probate court judge by the same party. The term includes any third or subsequent motion filed in the case by the same party, regardless of whether that motion is filed against a different judge than the judge or judges against whom the previous motions for recusal or disqualification were filed.

(b) A judge who declines recusal after a tertiary recusal motion is filed shall comply with applicable rules of procedure for recusal and disqualification except that the judge shall continue to:

(1) preside over the case;

(2) sign orders in the case; and

(3) move the case to final disposition as though a tertiary recusal motion had not been filed.

(c) A judge hearing a tertiary recusal motion against another judge who denies the motion shall award reasonable and necessary attorney's fees and costs to the party opposing the motion. The party making the motion and the attorney for the party are jointly and severally liable for the award of fees and costs. The fees and costs must be paid before the 31st day after the date the order denying the tertiary recusal motion is rendered unless the order is properly superseded.

(d) The denial of a tertiary recusal motion is only reviewable on appeal from final judgment.

(e) If a tertiary recusal motion is finally sustained, the new judge for the case shall vacate all orders signed by the sitting judge during the pendency of the tertiary recusal motion.

SECTION 3. Section 30.016(a), Civil Practice and Remedies Code, is amended to read as follows:

(a) In this section, "tertiary recusal motion" means a third or subsequent motion for recusal or disqualification filed against a district court[, statutory probate court,] or statutory county court judge by the same party in a case.

SECTION 4. The changes in law made by this Act apply only to a motion for recusal or disqualification of a judge that is filed on or after the effective date of this Act. A motion for recusal or disqualification of a judge filed before the effective date of this Act is governed by the law in effect on the date the motion was filed, and the former law is continued in effect for that purpose.

SECTION 5. This Act takes effect September 1, 2007.