By: Hunter H.B. No. 3995

A BILL TO BE ENTITLED

AN ACT

relating to the operation of the judiciary.

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

ARTICLE 1. JUDICIAL APPOINTMENT AND RETENTION

SECTION 1.01. Subchapter D, Chapter 22, Government Code, is amended by adding Section 22.303 to read as follows:

Sec. 22.303. APPOINTMENT AND RETENTION OF JUSTICES AND JUDGES. (a) This section applies to each office of justice or judge for which the Texas Constitution requires a person appointed to fill a vacancy in the office to be subject to retention or rejection by the voters at the end of the appointed term and each successive term.

(b) In conjunction with the last general election for state and county officers to be held before the end of a term of office to which a justice or judge is appointed or retained, the justice or judge is subject to retention or rejection at the nonpartisan judicial retention election in accordance with Chapter 521, Election Code.

(c) If a justice or judge does not seek retention, or withdraws from the retention election, as provided by Chapter 521, Election Code, the vacancy existing at the beginning of the succeeding term shall be filled in the manner prescribed by the Texas Constitution.

(d) If a vacancy occurs in the office of a justice or judge seeking retention and the name of the justice or judge is omitted from the retention election ballot under Chapter 521, Election Code, the vacancy shall be filled in the manner prescribed by the Texas Constitution.

(e) If a majority of the votes received on the question are for the retention of the justice or judge, the person is entitled to remain in office for a regular term beginning on the first day of the following January, unless the person becomes ineligible or is removed as provided by law.

(f) If less than a majority of the votes received on the question are for retention, a vacancy in the office exists on the first day of the following January, and the vacancy shall be filled in the manner prescribed by the Texas Constitution.

(g) If the name of a justice or judge seeking retention appears on the retention election ballot under Chapter 521, Election Code, although a vacancy has occurred in the office, the retention election for that office has no effect, and the vacancy shall be filled in the manner prescribed by the Texas Constitution.

SECTION 1.02. The Election Code is amended by adding Title 18 to read as follows:

TITLE 18. NONPARTISAN JUDICIAL RETENTION ELECTIONS

CHAPTER 521. RETENTION ELECTION

Sec. 521.001. DECLARATION OF CANDIDACY. (a) Not later than 5 p.m. on June 1 preceding the nonpartisan judicial retention election at which the justice or judge is subject to retention or rejection, a justice or judge who seeks to continue to serve in that office must file with the secretary of state a declaration of candidacy to succeed to the next term.

(b) A declaration may not be filed earlier than the 30th day before the date of the filing deadline. A declaration filed by mail is considered to be filed at the time of its receipt by the secretary of state.

(c) The filling of the subsequent vacancy for the office for which a declaration of candidacy is not filed is covered by Section 22.303, Government Code.

Sec. 521.002. WITHDRAWAL, DEATH, OR INELIGIBILITY. (a) With respect to withdrawal, death, or ineligibility of a candidate in a nonpartisan judicial retention election, this section supersedes Subchapter A, Chapter 145, to the extent of any conflict.

(b) A candidate may not withdraw from the retention election after the 65th day before election day.

(c) A withdrawal request must be filed with the secretary of state.

(d) A candidate's name shall be omitted from the retention election ballot if the candidate withdraws, dies, or is declared ineligible on or before the 65th day before election day.

(e) If a candidate who has made a declaration of candidacy that complies with the applicable requirements dies or is declared ineligible after the 65th day before election day, the candidate's name shall be placed on the retention election ballot.

(f) The filling of the subsequent vacancy for the office following implementation of Subsection (d) or (e) is covered by Section 22.303, Government Code.

Sec. 521.003. CERTIFICATION OF NAMES FOR PLACEMENT ON RETENTION ELECTION BALLOT. (a) Except as provided by Subsection (c), the secretary of state shall certify in writing for placement on the nonpartisan judicial retention election ballot the name of each candidate who files with the secretary a declaration of candidacy that complies with Section 521.001.

(b) Not later than the 55th day before election day, the secretary of state shall deliver the certification to the authority responsible for having the official ballot prepared in each county in which the candidate's name is to appear on the ballot.

(c) A candidate's name may not be certified if, before delivering the certification, the secretary of state learns that the name is to be omitted from the ballot under Section 521.002.

Sec. 521.004. RETENTION ELECTION BALLOT. The name of the person subject to retention or rejection shall be submitted to the voters on the nonpartisan judicial retention election ballot following the offices subject to election under the heading "Retention of Nonpartisan Judicial Offices," in substantially the following form:

"Shall (Justice or Judge)_______________________

______________________________________________

be retained in office as (justice or judge) of the

(name of court)_________________________?"

____"Yes"

____"No"

Sec. 521.005. GENERAL PROCEDURE FOR CONDUCT OF RETENTION ELECTION. (a) Except as otherwise provided by this code, the nonpartisan judicial retention election shall be conducted and the results canvassed, tabulated, and reported in the manner applicable to partisan offices in the general election for state and county officers.

(b) A certificate of election shall be issued to a retained officer in the same manner as provided for a candidate elected to an office.

Sec. 521.006. WRITE-IN VOTING PROHIBITED. Write-in voting is not permitted in a nonpartisan judicial retention election.

Sec. 521.007. POLITICAL CONTRIBUTIONS AND EXPENDITURES. A candidate for retention of a judicial office is subject to Title 15 and shall comply with that title in the same manner as a candidate for election to the office.

Sec. 521.008. APPLICABILITY OF OTHER PARTS OF CODE. The other titles of this code apply to a nonpartisan judicial retention election except provisions that are inconsistent with this title or that cannot feasibly be applied in a retention election.

Sec. 521.009. ADDITIONAL PROCEDURES. The secretary of state shall prescribe any additional procedures necessary for the orderly and proper administration of elections held under this chapter.

SECTION 1.03. Section 1.005, Election Code, is amended by amending Subdivision (9) and adding Subdivisions (25) and (26) to read as follows:

(9) "Independent candidate" means a candidate in a nonpartisan election or a candidate in a partisan election who is not the nominee of a political party. The term does not include a nonpartisan judicial candidate.

(25) "Nonpartisan judicial candidate" means a candidate in a nonpartisan judicial retention election.

(26) "Nonpartisan judicial retention election" means an election held under Chapter 521.

SECTION 1.04. Section 41.002, Election Code, is amended to read as follows:

Sec. 41.002. GENERAL ELECTION FOR STATE AND COUNTY OFFICERS. The general election for state and county officers, including the nonpartisan judicial retention election, shall be held on the first Tuesday after the first Monday in November in even-numbered years.

SECTION 1.05. Section 52.092, Election Code, is amended by amending Subsections (a), (c), and (d) and adding Subsection (f-1) to read as follows:

(a) For an election at which offices regularly filled at the general election for state and county officers, including the nonpartisan judicial retention election, are to appear on the ballot, the offices shall be listed in the following order:

(1) offices of the federal government;

(2) offices of the state government:

(A) statewide offices;

(B) district offices;

(3) offices of the county government:

(A) county offices;

(B) precinct offices.

(c) Statewide offices of the state government shall be listed in the following order:

(1) governor;

(2) lieutenant governor;

(3) attorney general;

(4) comptroller of public accounts;

(5) commissioner of the General Land Office;

(6) commissioner of agriculture;

(7) railroad commissioner[;

[(8) chief justice, supreme court;

[(9) justice, supreme court;

[(10) presiding judge, court of criminal appeals;

[(11) judge, court of criminal appeals].

(d) District offices of the state government shall be listed in the following order:

(1) member, State Board of Education;

(2) state senator;

(3) state representative;

(4) [chief justice, court of appeals;

[(5) justice, court of appeals;

[(6)] district judge;

(5) [(7)] criminal district judge;

(6) [(8)] family district judge;

(7) [(9)] district attorney;

(8) [(10)] criminal district attorney.

(f-1) Nonpartisan judicial retention election offices shall be listed in the following order:

(1) chief justice, supreme court;

(2) justice, supreme court;

(3) presiding judge, court of criminal appeals;

(4) judge, court of criminal appeals;

(5) chief justice, court of appeals;

(6) justice, court of appeals.

SECTION 1.06. Section 145.003(b), Election Code, is amended to read as follows:

(b) A candidate in the general election for state and county officers, including the nonpartisan judicial retention election, may be declared ineligible before the 30th day preceding election day by:

(1) the party officer responsible for certifying the candidate's name for placement on the general election ballot, in the case of a candidate who is a political party's nominee; or

(2) the authority with whom the candidate's application for a place on the ballot or declaration of candidacy is required to be filed, in the case of an independent candidate or a nonpartisan judicial candidate, as applicable.

SECTION 1.07. Section 145.005(a), Election Code, is amended to read as follows:

(a) If the name of a deceased or ineligible candidate appears on the ballot [under this chapter], the votes cast for the candidate shall be counted and entered on the official election returns in the same manner as for the other candidates.

SECTION 1.08. Section 172.021(e), Election Code, is amended to read as follows:

(e) A candidate for an office specified by Section 172.024(a)(8) or [,] (10)[, or (12),] or for justice of the peace in a county with a population of more than 850,000, who chooses to pay the filing fee must also accompany the application with a petition for a place on the primary ballot as a candidate for judicial office that complies with the requirements prescribed for the petition authorized by Subsection (b), except that the minimum number of signatures that must appear on the petition required by this subsection is 250. If the candidate chooses to file the petition authorized by Subsection (b) in lieu of the filing fee, the minimum number of signatures required for that petition is increased by 250. Signatures on a petition filed under this subsection or Subsection (b) by a candidate covered by this subsection may not be obtained on the grounds of a county courthouse or courthouse annex.

SECTION 1.09. Section 172.024(a), Election Code, is amended to read as follows:

(a) The filing fee for a candidate for nomination in the general primary election is as follows:

(1) United States senator$5,000

(2) office elected statewide, except United States senator 3,750

(3) United States representative3,125

(4) state senator1,250

(5) state representative750

(6) member, State Board of Education300

(7) [chief justice or justice, court of appeals, other than a justice specified by Subdivision (8) 1,875

[(8) chief justice or justice of a court of appeals that serves a court of appeals district in which a county with a population of more than 750,000 is wholly or partly situated 2,500

[(9)] district judge or judge specified by Section 52.092(d) for which this schedule does not otherwise prescribe a fee1,500

(8) [(10)] district or criminal district judge of a court in a judicial district wholly contained in a county with a population of more than 850,0002,500

(9) [(11)] judge, statutory county court, other than a judge specified by Subdivision (12)1,500

(10) [(12)] judge of a statutory county court in a county with a population of more than 850,0002,500

(11) [(13)] district attorney, criminal district attorney, or county attorney performing the duties of a district attorney1,250

(12) [(14)] county commissioner, district clerk, county clerk, sheriff, county tax assessor-collector, county treasurer, or judge, constitutional county court:

(A) county with a population of 200,000 or more1,250

(B) county with a population of under 200,000750

(13) [(15)] justice of the peace or constable:

(A) county with a population of 200,000 or more1,000

(B) county with a population of under 200,000375

(14) [(16)] county surveyor, inspector of hides and animals, or public weigher75

(15) [(17)] office of the county government for which this schedule does not otherwise prescribe a fee750

SECTION 1.10. Section 202.001, Election Code, is amended to read as follows:

Sec. 202.001. APPLICABILITY OF CHAPTER. This chapter applies to elective offices of the state and county governments except the offices of:

(1) state senator and state representative; and

(2) justice or judge of an appellate court.

SECTION 1.11. Section 253.153(a), Election Code, is amended to read as follows:

(a) A judicial candidate or officeholder, a specific-purpose committee for supporting or opposing a judicial candidate, or a specific-purpose committee for assisting a judicial officeholder may not knowingly accept a political contribution except during the period:

(1) beginning on:

(A) if the office is subject to a nonpartisan judicial retention election, the 210th day before the date a declaration of candidacy is required to be filed; or

(B) if the office is not subject to a nonpartisan judicial retention election:

(i) the 210th day before the date an application for a place on the ballot or for nomination by convention for the office is required to be filed, if the election is for a full term; or

(ii) [(B)] the later of the 210th day before the date an application for a place on the ballot or for nomination by convention for the office is required to be filed or the date a vacancy in the office occurs, if the election is for an unexpired term; and

(2) ending on the 120th day after the date of:

(A) the general election for state and county officers, if:

(i) the office is subject to a nonpartisan judicial retention election; or

(ii) the candidate or officeholder has an opponent in the general election;

(B) except as provided by Subsection (c), the runoff primary election, if the candidate or officeholder is a candidate in the runoff primary election and does not have an opponent in the general election; or

(C) except as provided by Subsection (c), the general primary election, if the candidate or officeholder is not a candidate in the runoff primary election and does not have an opponent in the general election.

SECTION 1.12. Section 172.021(g), Election Code, is repealed.

SECTION 1.13. (a) Each appellate justice or judge in office January 1, 2010, unless otherwise removed as provided by law, continues in office subject to this section.

(b) Each appellate justice or judge who is in office January 1, 2010, is subject to retention or rejection, in the manner provided by law for a justice or judge appointed to the office after the effective date of this Act, at the last general election preceding the expiration of the regular or unexpired term for which each was elected or appointed.

SECTION 1.14. This Article takes effect January 1, 2010, but only if the constitutional amendment proposed by the 81st Legislature, Regular Session, 2009, providing for filling vacancies in appellate judicial offices by appointment and for nonpartisan retention elections for those offices is approved by the voters. If that amendment is not approved by the voters, this Article has no effect.

ARTICLE 2. JUDICIAL INDEMNIFICATION AND REPRESENTATION

SECTION 2.01 Section 104.001, Civil Practice and Remedies Code, is amended to read as follows:

Sec. 104.001. STATE LIABILITY; PERSONS COVERED. In a cause of action based on conduct described in Section 104.002, the state shall indemnify the following persons, without regard to whether the persons performed their services for compensation, for actual damages, court costs, and attorney's fees adjudged against:

(1) an employee, a member of the governing board, or any other officer of a state agency, institution, or department;

(2) a former employee, former member of the governing board, or any other former officer of a state agency, institution, or department who was an employee or officer when the act or omission on which the damages are based occurred;

(3) a physician or psychiatrist licensed in this state who was performing services under a contract with any state agency, institution, or department or a racing official performing services under a contract with the Texas Racing Commission when the act or omission on which the damages are based occurred;

(3-a) a phlebotomist licensed in this state who was performing services under a contract with the Texas Department of Criminal Justice when the act or omission on which the damages are based occurred;

(4) a chaplain or spiritual advisor who was performing services under contract with the Texas Department of Criminal Justice, the Texas Youth Commission, or the Texas Juvenile Probation Commission when the act or omission on which the damages are based occurred;

(5) a person serving on the governing board of a foundation, corporation, or association at the request and on behalf of an institution of higher education, as that term is defined by Section 61.003(8), Education Code, not including a public junior college;

(6) a state contractor who signed a waste manifest as required by a state contract; [or]

(7) the estate of a person listed in this section;

(8) a justice of an appellate court, a district judge, a presiding judge of an administrative region, or an active, retired, or former judge assigned under this chapter in any action or suit in any court in which the judge is a defendant because of the judge's office, if the judge request the assistance of the attorney general in the defense of the suit; or

(9) an appointee of the supreme court to a judicial branch board, commission, or task force or a former appointee to such a board, commission, or task force, if the former appointee was serving at the time of an alleged act or omission.

SECTION 2.02. Section 74.141, Government Code, is amended to read as follows:

Sec. 74.141. DEFENSE OF JUDGES. The attorney general shall defend an appointee or former appointee of the supreme court, as described by Section 104.001(9), Civil Practice and Remedies Code, a justice of an appellate court, a state district judge, a presiding judge of an administrative region, or an active, retired, or former judge assigned under this chapter in any action or suit in any court in which the judge is a defendant because of his office as judge if the judge requests the attorney general's assistance in the defense of the suit.

ARTICLE 3. JUDICIAL PREPAREDNESS

SECTION 3.01. Section 74.093(c), Government Code, is amended to read as follows:

(c) The rules may provide for:

(1) the selection and authority of a presiding judge giving preference to a specified class of cases, such as civil, criminal, juvenile, or family law cases;

(2) a coordinated response for the transaction of essential judicial functions in the event of a disaster; and

(3) [(2)] any other matter necessary to carry out this chapter or to improve the administration and management of the court system and its auxiliary services.

SECTION 3.02. Section 418.002, Government Code, is amended to read as follows:

Sec. 418.002. PURPOSES. The purposes of this chapter are to:

(1) reduce vulnerability of people and communities of this state to damage, injury, and loss of life and property resulting from natural or man-made catastrophes, riots, or hostile military or paramilitary action;

(2) prepare for prompt and efficient rescue, care, and treatment of persons victimized or threatened by disaster;

(3) provide a setting conducive to the rapid and orderly restoration and rehabilitation of persons and property affected by disasters;

(4) clarify and strengthen the roles of the governor, state agencies, the judicial branch, and local governments in prevention of, preparation for, response to, and recovery from disasters;

(5) authorize and provide for cooperation in disaster mitigation, preparedness, response, and recovery;

(6) authorize and provide for coordination of activities relating to disaster mitigation, preparedness, response, and recovery by agencies and officers of this state, and similar state-local, interstate, federal-state, and foreign activities in which the state and its political subdivisions may participate;

(7) provide an emergency management system embodying all aspects of predisaster preparedness and postdisaster response;

(8) assist in mitigation of disasters caused or aggravated by inadequate planning for and regulation of public and private facilities and land use; and

(9) provide the authority and mechanism to respond to an energy emergency.

SECTION 3.03. Section 418.016, Government Code, is amended to read as follows:

Sec. 418.016. SUSPENSION OF PROCEDURAL LAWS AND RULES. (a) The governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.

(b) Notwithstanding any other law, the supreme court may exercise the court's inherent authority by rule or by order or on a case by case basis, with or without the consent of the parties, to suspend procedures for the conduct of any court proceeding affected by a disaster. This authority includes the authority to:

(1) provide abatements and stays;

(2) toll or modify other filings and service deadlines;

(3) provide for hearings or trials at locations other than the county of suit;

(4) provide for courts of appeals to accept filings and hear arguments in remote courthouses; and

(5) provide for alternative notice requirements.

(c) In the event that a disaster prevents the supreme court from acting, the chief justice may act on behalf of the supreme court. In the event that a disaster prevents either the supreme court or the chief justice from acting, the court of criminal appeals may act on behalf of the chief justice. In the event that a disaster prevents the supreme court, the chief justice, or the court of criminal appeals from acting, the presiding judge of the court of criminal appeals may act on behalf of the court of criminal appeals.

SECTION 3.04. Section 418.042(b), Government Code, is amended to read as follows:

(b) In preparing and revising the state emergency management plan, the division shall seek the advice and assistance of local government, the judicial branch, business, labor, industry, agriculture, civic organizations, volunteer organizations, and community leaders.

ARTICLE 4. ELECTRONIC STORAGE OF CERTAIN RECORDS

SECTION 4.01. Subchapter A, Chapter 51, Government Code, is amended to read as follows:

Sec. 51.0045. ELECTRONIC STORAGE. (a) In the performance of the duties imposed by Section 51.004, the clerk of the supreme court may maintain records and documents in an electronic storage format or on microfilm or microfiche. When a document is filed electronically, the electronic document maintained by the clerk is the original. If the clerk stores records or documents in an electronic storage format or on microfilm or microfiche, the clerk may destroy the originals or copies of the records or documents according to the retention policy described by Subsection (b).

(b) The clerk of the supreme court shall establish a records retention policy. The retention policy shall provide a plan for the storage and retention of records and documents and shall include a retention period to preserve the records and documents in accordance with applicable state law and rules of the supreme court.

(c) For purposes of this section, "electronic storage" has the meaning assigned by Section 51.105(c).

SECTION 4.02. Subchapter C, Chapter 51, Government Code, is amended by adding Section 51.205 to read as follows:

Sec. 51.205. ELECTRONIC STORAGE. (a) In the performance of the duties imposed by Section 51.204, the clerk of a court of appeals may maintain records and documents in an electronic storage format or on microfilm or microfiche. When a document is filed electronically, the electronic document maintained by the clerk is the original. If the clerk stores records or documents in an electronic storage format or on microfilm or microfiche, the clerk may destroy the originals or copies of the records or documents according to the retention policy described by Subsection (b).

(b) The clerk of a court of appeals shall establish a records retention policy. The retention policy shall provide a plan for the storage and retention of records and documents and shall include a retention period to preserve the records and documents in accordance with Section 51.204 and other applicable state law and rules of the court of appeals, the supreme court, or the court of criminal appeals.

(c) For purposes of this section, "electronic storage" has the meaning assigned by Section 51.105(c).

SECTION 4.03. The change in law made by this Article applies to records received by a clerk before, on or after the effective date.

ARTICLE 5. EFFECTIVE DATE

SECTION 5.01. Except as otherwise provided by this Act, this Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.