By: Hinojosa  S.B. No. 2028
         (In the Senate - Filed April 16, 2007; April 17, 2007, read
  first time and referred to Committee on Jurisprudence; May 4, 2007,
  reported favorably, as amended, by the following vote:  Yeas 4,
  Nays 0; May 4, 2007, sent to printer.)
 
  COMMITTEE AMENDMENT NO. 1 By:  Hinojosa
 
 
         Amend S.B. No. 2028 (Introduced version) in SECTION 2 of the
  bill by striking added Section 54.1783, Government Code (page 2,
  lines 23 through 34), and substituting the following:
         Sec. 54.1783.  ELIGIBILITY FOR APPOINTMENT. In determining
  whom to appoint as a magistrate under this subchapter, the judges of
  the district courts or the judges of the county courts at law, as
  applicable, shall consider persons who:
               (1)  are licensed to practice law in this state;
               (2)  reside in Nueces County;
               (3)  have at least 10 years of active experience in
  criminal law practice; and
               (4)  exhibit judicial temperaments.
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the appointment and duties of criminal magistrates for
  certain courts in Nueces County.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 2.09, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 2.09. WHO ARE MAGISTRATES.  Each of the following
  officers is a magistrate within the meaning of this Code: The
  justices of the Supreme Court, the judges of the Court of Criminal
  Appeals, the justices of the Courts of Appeals, the judges of the
  District Court, the magistrates appointed by the judges of the
  district courts of Bexar County, Dallas County, or Tarrant County
  that give preference to criminal cases, the criminal law hearing
  officers for Harris County appointed under Subchapter L, Chapter
  54, Government Code, the criminal law hearing officers for Cameron
  County appointed under Subchapter BB, Chapter 54, Government Code,
  the magistrates appointed by the judges of the district courts of
  Lubbock County, Nolan County, or Webb County, the magistrates
  appointed by the judges of the criminal district courts of Dallas
  County or Tarrant County, the masters appointed by the judges of the
  district courts and the county courts at law that give preference to
  criminal cases in Jefferson County, the magistrates appointed by
  the judges of the district courts and the statutory county courts of
  Brazos County, Nueces County, or Williamson County, the magistrates
  appointed by the judges of the district courts and statutory county
  courts that give preference to criminal cases in Travis County, the
  county judges, the judges of the county courts at law, judges of the
  county criminal courts, the judges of statutory probate courts, the
  associate judges appointed by the judges of the statutory probate
  courts under Subchapter G, Chapter 54, Government Code, the
  justices of the peace, and the mayors and recorders and the judges
  of the municipal courts of incorporated cities or towns.
         SECTION 2.  Chapter 54, Government Code, is amended by
  adding Subchapter FF to read as follows:
  SUBCHAPTER FF.  CRIMINAL LAW MAGISTRATES IN NUECES COUNTY
         Sec. 54.1781.  APPLICATION.  This subchapter applies to the
  district courts and the county courts at law in Nueces County.
         Sec. 54.1782.  APPOINTMENT; COMPENSATION.  (a)  The
  Commissioners Court of Nueces County shall set the number of
  magistrates needed to perform the duties authorized by this
  subchapter.
         (b)  A magistrate shall be paid a salary determined by the
  Commissioners Court of Nueces County.
         (c)  The judges of the district courts who wish to use the
  services of a magistrate may jointly appoint the magistrates that
  will assist their courts.  The judges of the county courts at law
  who wish to use the services of a magistrate may jointly appoint the
  magistrates that will assist their courts.  A judge who uses the
  services of a magistrate may determine the extent to which those
  services are used in the judge's court.
         (d)  On agreement between the judges of the district courts
  and the judges of the county courts at law who wish to use the
  services of a magistrate, a magistrate may serve in both those
  district courts and those county courts at law.  A magistrate
  serving in both the district courts and the county courts at law
  shall spend half the magistrate's time in the district courts and
  half in the county courts at law.
         (e)  If the number of magistrates is less than the number of
  the judges who wish to use the services of a magistrate, each
  magistrate shall serve equally in the courts of those judges.
         (f)  A magistrate serves a one-year term, unless the
  magistrate is terminated under Section 54.1789.
         (g)  A magistrate may be employed on a full-time or part-time
  basis.  A court served by the magistrate shall determine the
  magistrate's work schedule.
         Sec. 54.1783.  ELIGIBILITY FOR APPOINTMENT. In determining
  whom to appoint as a magistrate under this subchapter, the judges of
  the district courts or the judges of the county courts at law, as
  applicable, shall give priority to a retired or former judge, as
  those terms are defined by Section 74.041. If no retired or former
  judge desires to be appointed, the appointing judges shall consider
  for appointment persons who:
               (1)  are licensed to practice law in this state;
               (2)  reside in Nueces County;
               (3)  have at least 10 years of active experience in
  criminal law practice; and
               (4)  exhibit judicial temperaments.
         Sec. 54.1784.  JUDICIAL IMMUNITY.  A magistrate has the same
  judicial immunity as a district judge or judge of a county court at
  law, as applicable.
         Sec. 54.1785.  STAFF FOR MAGISTRATE.  (a)  The clerk of a
  court a magistrate serves shall provide a clerk for the magistrate.
         (b)  A sheriff's deputy shall attend a proceeding conducted
  by a magistrate and act as a bailiff.
         Sec. 54.1786.  PROCEEDINGS THAT MAY BE REFERRED.  A judge who
  appoints a magistrate under Section 54.1782 may refer to the
  magistrate any criminal case for proceedings involving:
               (1)  arraignment of defendants;
               (2)  a negotiated plea of guilty or no contest;
               (3)  sentencing for a negotiated plea of guilty or no
  contest;
               (4)  ordering of community service;
               (5)  a pretrial motion;
               (6)  an examining trial;
               (7)  a bond forfeiture suit;
               (8)  issuance of capias;
               (9)  issuance of arrest and search warrants;
               (10)  setting of bonds;
               (11)  a motion to increase or decrease a bond;
               (12)  a hearing on a protective order;
               (13)  a motion to grant, modify, revoke, or extend
  community supervision or to proceed to an adjudication;
               (14)  a pretrial diversion;
               (15)  civil commitment matters under Subtitle C, Title
  7, Health and Safety Code;
               (16)  an agreed recommendation for a presentence
  investigation report for determination of a sentence; and
               (17)  any other matter the judge considers necessary
  and proper.
         Sec. 54.1787.  POWERS.  Except as limited by an order of
  referral, a magistrate to whom a case is referred may:
               (1)  conduct hearings;
               (2)  hear evidence;
               (3)  compel production of relevant evidence;
               (4)  rule on admissibility of evidence;
               (5)  issue summons for the appearance of witnesses;
               (6)  examine witnesses;
               (7)  swear witnesses for hearings;
               (8)  make findings of fact on evidence;
               (9)  formulate conclusions of law;
               (10)  rule on pretrial motions;
               (11)  recommend the rulings, orders, or judgment to be
  made in a case;
               (12)  regulate proceedings in a hearing;
               (13)  in any case referred under Section 54.1786:
                     (A)  accept a negotiated plea of guilty;
                     (B)  enter a finding of guilt and impose or
  suspend sentence; or
                     (C)  defer adjudication of guilt; and
               (14)  do any act and take any measure necessary and
  proper for the efficient performance of the duties required by the
  order of referral.
         Sec. 54.1788.  DISMISSAL.  A magistrate appointed under this
  subchapter may not dismiss a case.
         Sec. 54.1789.  TERMINATION OF SERVICES.  Regardless of
  whether a magistrate serves in both the district courts and the
  county courts at law or whether the magistrate serves in only one of
  those types of courts, the magistrate's service with respect to a
  particular type of court may be terminated only on a majority vote
  of the judges of that type of court who appointed the magistrate
  under Section 54.1782, or their successors.
         Sec. 54.1790.  ABSENCE OF MAGISTRATE. (a)  If a magistrate
  appointed under this subchapter is absent or unable to serve, the
  local administrative judge of the type of court with respect to
  which the magistrate served may appoint a temporary magistrate to
  serve for the absent magistrate.
         (b)  A temporary magistrate serving for another magistrate
  under this section has the powers and shall perform the duties of
  the magistrate for whom the temporary magistrate is serving.
         Sec. 54.1791.  RECORD OF PROCEEDINGS.  A criminal proceeding
  in a magistrate court shall be recorded by a good-quality
  electronic audio or videotape recording device, unless the
  defendant requests that a court reporter be present.  The record
  shall be retained by the clerk of the court as required by law.
         Sec. 54.1792.  PAPERS TRANSMITTED TO JUDGE. At the
  conclusion of the proceedings, a magistrate shall transmit to the
  referring court as soon as possible any papers relating to the case,
  including the magistrate's findings, conclusions, orders,
  recommendations, or other action taken.
         Sec. 54.1793.  JUDICIAL ACTION. (a)  The judge of the court
  in which the case is pending may modify, correct, reject, reverse,
  or recommit for further information any action taken by the
  magistrate.
         (b)  If the supervising judge or judges do not modify,
  correct, reject, reverse, or recommit an action of the magistrate
  within the time required by law, the action becomes the order,
  judgment, or decree of the court.
         Sec. 54.1794.  PRETRIAL DIVERSION. As a condition for a
  defendant to enter any pretrial diversion program or the functional
  equivalent that may be operated in Nueces County, a defendant must
  file in the court in which the charges are pending a sworn waiver of
  the defendant's right to a speedy trial under the United States
  Constitution and other law and a motion requesting the court to
  approve the waiver without a hearing. If the court approves the
  waiver, the defendant is eligible for consideration for acceptance
  into a pretrial diversion or equivalent program.
         SECTION 3.  This Act takes effect September 1, 2007.
 
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