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AN ACT
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relating to the employment, powers, and duties of and procedures |
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for matters referred to a statutory probate court judge or |
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associate judge. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subsections (d) and (h), Section 25.0022, |
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Government Code, are amended to read as follows: |
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(d) The presiding judge shall: |
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(1) ensure the promulgation of local rules of |
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administration in accordance with policies and guidelines set by |
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the supreme court; |
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(2) advise local statutory probate court judges on |
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case flow management practices and auxiliary court services; |
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(3) perform a duty of a local administrative statutory |
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probate court judge if the local administrative judge does not |
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perform that duty; |
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(4) appoint an assistant presiding judge of the |
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statutory probate courts; |
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(5) call and preside over annual meetings of the |
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judges of the statutory probate courts at a time and place in the |
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state as designated by the presiding judge; |
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(6) call and convene other meetings of the judges of |
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the statutory probate courts as considered necessary by the |
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presiding judge to promote the orderly and efficient administration |
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of justice in the statutory probate courts; |
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(7) study available statistics reflecting the |
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condition of the dockets of the probate courts in the state to |
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determine the need for the assignment of judges under this section; |
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[and] |
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(8) compare local rules of court to achieve uniformity |
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of rules to the extent practical and consistent with local |
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conditions; and |
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(9) assign a judge or former or retired judge of a |
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statutory probate court to hear a case under the circumstances |
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described by Section 25.002201(b). |
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(h) Subject to Section 25.002201, a [A] judge or a former or |
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retired judge of a statutory probate court may be assigned by the |
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presiding judge of the statutory probate courts to hold court in a |
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statutory probate court, a county court, or any statutory court |
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exercising probate jurisdiction when: |
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(1) a statutory probate judge requests assignment of |
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another judge to the judge's court; |
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(2) a statutory probate judge is absent, disabled, or |
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disqualified for any reason; |
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(3) a statutory probate judge is present or is trying |
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cases as authorized by the constitution and laws of this state and |
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the condition of the court's docket makes it necessary to appoint an |
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additional judge; |
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(4) the office of a statutory probate judge is vacant; |
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(5) the presiding judge of an administrative judicial |
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district requests the assignment of a statutory probate judge to |
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hear a probate matter in a county court or statutory county court; |
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(6) the presiding judge of the administrative judicial |
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district fails to timely assign a judge to replace a recused or |
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disqualified statutory probate court judge as described by Section |
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25.002201(b) [a motion to recuse the judge of a statutory probate
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court has been filed]; |
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(7) a county court judge requests the assignment of a |
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statutory probate judge to hear a probate matter in the county |
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court; or |
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(8) a local administrative statutory probate court |
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judge requests the assignment of a statutory probate judge to hear a |
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matter in a statutory probate court. |
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SECTION 2. Subchapter B, Chapter 25, Government Code, is |
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amended by adding Section 25.002201 to read as follows: |
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Sec. 25.002201. ASSIGNMENT OF JUDGE ON RECUSAL OR |
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DISQUALIFICATION. (a) Not later than the 15th day after the date |
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an order of recusal or disqualification of a statutory probate |
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court judge is issued in a case, the presiding judge of the |
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administrative judicial district shall assign a statutory probate |
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court judge or a former or retired judge of a statutory probate |
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court to hear the case if: |
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(1) the judge of the statutory probate court recused |
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himself or herself under Section 25.00255(g)(1)(A); |
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(2) the judge of the statutory probate court |
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disqualified himself or herself under Section 25.00255(g-1); |
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(3) the order was issued under Section |
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25.00255(i-3)(1); or |
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(4) the presiding judge of the administrative judicial |
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district receives notice and a request for assignment from the |
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clerk of the statutory probate court under Section 25.00255(l). |
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(b) If the presiding judge of an administrative judicial |
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district does not assign a judge under Subsection (a) within the |
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time prescribed by that subsection, the presiding judge of the |
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statutory probate courts may assign a judge to hear the case instead |
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of the presiding judge of the administrative judicial district |
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making the assignment under that subsection. |
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(c) The provisions of Section 25.0022 applicable to a judge |
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assigned under that section apply to the same extent to a judge |
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assigned under the authority of this section. |
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SECTION 3. Section 25.00255, Government Code, is amended by |
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amending Subsections (f), (g), (h), and (i) and adding Subsections |
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(g-1), (i-1), (i-2), (i-3), (i-4), (i-5), (l), and (m) to read as |
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follows: |
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(f) Before further proceedings in a case in which a motion |
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for the recusal or disqualification of a judge has been filed, the |
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judge shall: |
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(1) recuse or disqualify himself or herself; or |
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(2) request the assignment of a judge to hear the |
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motion by forwarding the motion and opposing and concurring |
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statements to the presiding judge of the statutory probate courts |
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as provided by Subsection (h). |
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(g) A judge who recuses himself or herself: |
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(1) shall enter an order of recusal and: |
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(A) if the judge serves a statutory probate court |
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located in a county with only one statutory probate court, request |
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that the presiding judge of the administrative judicial district |
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assign [statutory probate courts request the assignment of] a judge |
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under Section 25.002201 to hear the case; or |
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(B) subject to Subsection (l), if the judge |
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serves a statutory probate court located in a county with more than |
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one statutory probate court, request that the clerk who serves the |
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statutory probate courts in that county randomly reassign the case |
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to a judge of one of the other statutory probate courts located in |
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the county [motion for recusal or disqualification as provided by
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Subsection (i)]; and |
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(2) may not take other action in the case except for |
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good cause stated in the order in which the action is taken. |
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(g-1) A judge who disqualifies himself or herself: |
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(1) shall enter an order of disqualification and |
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request that the presiding judge of the administrative judicial |
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district assign a judge under Section 25.002201 to hear the case; |
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and |
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(2) may not take other action in the case. |
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(h) A judge who does not recuse or disqualify himself or |
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herself: |
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(1) shall forward to the presiding judge of the |
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statutory probate courts, in either original form or certified |
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copy, an order of referral, the motion for recusal or |
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disqualification, and all opposing and concurring statements; and |
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(2) may not take other action in the case during the |
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time after the filing of the motion for recusal or disqualification |
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and before a hearing on the motion, except for good cause stated in |
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the order in which the action is taken. |
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(i) After receiving a request under Subsection [(g) or] (h), |
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the presiding judge of the statutory probate courts shall |
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immediately forward the request to the presiding judge of the |
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administrative judicial district and request that the presiding |
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judge of the administrative judicial district assign a judge to |
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hear the motion for recusal or disqualification. Not later than the |
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15th day after the date [On receipt of the request,] the presiding |
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judge of the administrative judicial district receives the request, |
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the presiding judge shall: |
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(1) [immediately] set a hearing before himself or |
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herself or a judge designated by the presiding judge, except that |
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the presiding judge may not designate a judge of a statutory probate |
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court in the same county as the statutory probate court served by |
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the judge who is the subject of the motion; |
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(2) cause notice of the hearing to be given to all |
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parties or their counsel to the case; and |
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(3) make other orders, including orders for interim or |
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ancillary relief, in the pending case. |
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(i-1) If the presiding judge of the administrative judicial |
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district does not assign a judge to hear a motion for recusal or |
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disqualification within the time prescribed by Subsection (i), the |
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presiding judge of the statutory probate courts may assign a judge |
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to hear the motion and take other action under that subsection. |
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(i-2) A judge who hears a motion for recusal or |
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disqualification under Subsection (i) or (i-1) may also hear any |
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amended or supplemented motion for recusal or disqualification |
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filed in the case. |
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(i-3) If a motion for recusal or disqualification is granted |
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after a hearing conducted as provided by Subsection (i) or (i-1), |
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the judge who heard the motion shall: |
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(1) if the judge subject to recusal or |
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disqualification serves a statutory probate court located in a |
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county with only one statutory probate court, enter an order of |
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recusal or disqualification, as appropriate, and request that the |
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presiding judge of the administrative judicial district assign a |
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judge under Section 25.002201 to hear the case; or |
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(2) subject to Subsection (l), if the judge subject to |
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recusal or disqualification serves a statutory probate court |
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located in a county with more than one statutory probate court, |
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enter an order of recusal or disqualification, as appropriate, and |
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request that the clerk who serves the statutory probate courts in |
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that county randomly reassign the case to a judge of one of the |
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other statutory probate courts located in the county. |
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(i-4) The presiding judge of an administrative judicial |
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district may delegate the judge's authority to make orders of |
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interim or ancillary relief under Subsection (i)(3) to the |
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presiding judge of the statutory probate courts. |
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(i-5) A judge assigned to hear a motion for recusal or |
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disqualification under Subsection (i) is entitled to receive the |
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same salary, compensation, and expenses, and to be paid in the same |
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manner and from the same fund, as a judge otherwise assigned under |
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Section 25.0022, except that a judge assigned under Subsection (i) |
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shall provide the information required by Section 25.0022(l) to the |
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presiding judge of the administrative judicial district, who shall |
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immediately forward the information to the presiding judge of the |
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statutory probate courts. |
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(l) If a clerk of a statutory probate court is unable to |
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reassign a case as requested under Subsection (g)(1)(B) or (i-3)(2) |
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because the other statutory probate court judges in the county have |
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been recused or disqualified or are otherwise unavailable to hear |
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the case, the clerk shall immediately notify the presiding judge of |
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the administrative judicial district and request that the presiding |
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judge of the administrative judicial district assign a judge under |
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Section 25.002201 to hear the case. |
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(m) The clerk of a statutory probate court shall immediately |
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notify and provide to the presiding judge of the statutory probate |
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courts a copy of an order of recusal or disqualification issued with |
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respect to the judge of the statutory probate court. |
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SECTION 4. Section 54.604, Government Code, is amended by |
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amending Subsection (d) and adding Subsections (e), (f), (g), and |
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(h) to read as follows: |
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(d) The appointment of the associate judge terminates if: |
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(1) [the appointing judge vacates the judge's office;
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[(2)] the associate judge becomes a candidate for |
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election to public office; or |
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(2) [(3)] the commissioners court does not |
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appropriate funds in the county's budget to pay the salary of the |
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associate judge. |
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(e) If an associate judge serves a single court and the |
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appointing judge vacates the judge's office, the associate judge's |
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employment continues, subject to Subsections (d) and (h), unless |
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the successor appointed or elected judge terminates that |
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employment. |
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(f) If an associate judge serves two courts and one of the |
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appointing judges vacates the judge's office, the associate judge's |
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employment continues, subject to Subsections (d) and (h), unless |
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the successor appointed or elected judge terminates that employment |
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or the judge of the other court served by the associate judge |
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terminates that employment as provided by Subsection (c). |
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(g) If an associate judge serves more than two courts and an |
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appointing judge vacates the judge's office, the associate judge's |
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employment continues, subject to Subsections (d) and (h), unless: |
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(1) if no successor judge has been elected or |
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appointed, the majority of the judges of the other courts the |
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associate judge serves vote to terminate that employment; or |
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(2) if a successor judge has been elected or |
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appointed, the majority of the judges of the courts the associate |
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judge serves, including the successor judge, vote to terminate that |
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employment as provided by Subsection (b). |
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(h) Notwithstanding the powers of an associate judge |
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provided by Section 54.610, an associate judge whose employment |
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continues as provided by Subsection (e), (f), or (g) after the judge |
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of a court served by the associate judge vacates the judge's office |
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may perform administrative functions with respect to that court, |
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but may not perform any judicial function, including any power |
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prescribed by Section 54.610, with respect to that court until a |
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successor judge is appointed or elected. |
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SECTION 5. Section 54.610, Government Code, is amended to |
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read as follows: |
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Sec. 54.610. POWERS OF ASSOCIATE JUDGE. (a) Except as |
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limited by an order of referral, an associate judge may: |
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(1) conduct a hearing; |
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(2) hear evidence; |
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(3) compel production of relevant evidence; |
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(4) rule on the admissibility of evidence; |
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(5) issue a summons for the appearance of witnesses; |
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(6) examine a witness; |
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(7) swear a witness for a hearing; |
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(8) make findings of fact on evidence; |
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(9) formulate conclusions of law; |
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(10) recommend an order to be rendered in a case; |
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(11) regulate all proceedings in a hearing before the |
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associate judge; [and] |
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(12) take action as necessary and proper for the |
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efficient performance of the associate judge's duties; |
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(13) order the attachment of a witness or party who |
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fails to obey a subpoena; |
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(14) order the detention of a witness or party found |
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guilty of contempt, pending approval by the referring court as |
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provided by Section 54.616; |
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(15) without prejudice to the right to a de novo |
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hearing under Section 54.618, render and sign: |
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(A) a final order agreed to in writing as to both |
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form and substance by all parties; |
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(B) a final default order; |
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(C) a temporary order; |
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(D) a final order in a case in which a party files |
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an unrevoked waiver made in accordance with Rule 119, Texas Rules of |
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Civil Procedure, that waives notice to the party of the final |
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hearing or waives the party's appearance at the final hearing; |
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(E) an order specifying that the court clerk |
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shall issue: |
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(i) letters testamentary or of |
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administration; or |
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(ii) letters of guardianship; or |
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(F) an order for inpatient or outpatient mental |
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health, mental retardation, or chemical dependency services; and |
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(16) sign a final order that includes a waiver of the |
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right to a de novo hearing in accordance with Section 54.618. |
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(b) An associate judge may, in the interest of justice, |
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refer a case back to the referring court regardless of whether a |
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timely objection to the associate judge hearing the trial on the |
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merits or presiding at a jury trial has been made by any party. |
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(c) An order described by Subsection (a)(15) that is |
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rendered and signed by an associate judge constitutes an order of |
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the referring court. The judge of the referring court shall sign |
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the order not later than the 30th day after the date the associate |
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judge signs the order. |
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(d) An answer filed by or on behalf of a party who previously |
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filed a waiver described in Subsection (a)(15)(D) revokes that |
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waiver. |
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SECTION 6. Section 54.612, Government Code, is amended by |
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amending Subsections (a), (b), and (c) and adding Subsection (e) to |
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read as follows: |
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(a) A court reporter may be provided [is not required] |
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during a hearing held by an associate judge appointed under this |
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subchapter unless required by other law. A court reporter is |
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required to be provided when the associate judge presides over a |
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jury trial. |
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(b) A party, the associate judge, or the referring court may |
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provide for a reporter during the hearing, if one is not otherwise |
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provided. |
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(c) Except as provided by Subsection (a), in the absence of |
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a court reporter or on agreement of the parties, the [The] record |
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[of a hearing before an associate judge] may be preserved by any |
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means approved by the referring court. |
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(e) On a request for a de novo hearing, the referring court |
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may consider testimony or other evidence in the record, if the |
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record is taken by a court reporter, in addition to witnesses or |
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other matters presented under Section 54.618. |
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SECTION 7. Section 54.614, Government Code, is amended to |
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read as follows: |
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Sec. 54.614. REPORT. (a) The associate judge's report may |
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contain the associate judge's findings, conclusions, or |
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recommendations. The associate judge shall prepare a written |
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report in the form directed by the referring court, including in the |
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form of: |
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(1) [. The form may be] a notation on the referring |
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court's docket sheet; or |
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(2) a proposed order. |
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(b) After a hearing, the associate judge shall provide the |
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parties participating in the hearing notice of the substance of the |
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associate judge's report, including any proposed order. |
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(c) Notice may be given to the parties: |
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(1) in open court, by an oral statement or a copy of |
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the associate judge's written report; [or] |
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(2) by certified mail, return receipt requested; or |
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(3) by facsimile transmission. |
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(d) There is a rebuttable presumption that notice is |
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received [The associate judge shall certify the date of mailing of
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notice by certified mail. Notice is considered given] on the [third
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day after the] date stated on: |
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(1) the signed return receipt, if notice was provided |
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by certified mail; or |
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(2) the confirmation page produced by the facsimile |
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machine, if notice was provided by facsimile transmission [of
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mailing]. |
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(e) After a hearing conducted by an associate judge, the |
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associate judge shall send the associate judge's signed and dated |
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report, including any proposed order, and all other papers relating |
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to the case to the referring court. |
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SECTION 8. The heading to Section 54.615, Government Code, |
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is amended to read as follows: |
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Sec. 54.615. NOTICE OF RIGHT TO DE NOVO HEARING BEFORE |
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REFERRING COURT [APPEAL]. |
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SECTION 9. Subsection (a), Section 54.615, Government Code, |
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is amended to read as follows: |
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(a) An associate judge shall give all parties notice of the |
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right to a de novo hearing before [of appeal to the judge of] the |
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referring court. |
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SECTION 10. Section 54.616, Government Code, is amended to |
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read as follows: |
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Sec. 54.616. ORDER OF COURT. (a) Pending a de novo hearing |
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before [appeal of the associate judge's report to] the referring |
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court, a proposed order or judgment [the decisions and
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recommendations] of the associate judge has [judge's report have] |
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the force and effect, and is [are] enforceable as, an order or |
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judgment of the referring court, except for an order [orders] |
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providing for [incarceration or for] the appointment of a receiver. |
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(b) Except as provided by Section 54.610(c), if a request |
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for a de novo hearing before [If an appeal to] the referring court |
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is not timely filed or the right to a de novo hearing before [an
|
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appeal to] the referring court is waived, the proposed order or |
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judgment [findings and recommendations] of the associate judge |
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becomes [become] the order or judgment of the referring court at the |
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time the judge of the referring court signs the proposed [an] order |
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or judgment [conforming to the associate judge's report]. |
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SECTION 11. Section 54.617, Government Code, is amended to |
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read as follows: |
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Sec. 54.617. JUDICIAL ACTION ON ASSOCIATE JUDGE'S PROPOSED |
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ORDER OR JUDGMENT [REPORT]. (a) Unless a party files a written |
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request for a de novo hearing before the referring court [notice of
|
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appeal], the referring court may: |
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(1) adopt, modify, or reject the associate judge's |
|
proposed order or judgment [report]; |
|
(2) hear further evidence; or |
|
(3) recommit the matter to the associate judge for |
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further proceedings. |
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(b) The judge of the referring court shall sign a proposed |
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order or judgment the court adopts as provided by Subsection (a)(1) |
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not later than the 30th day after the date the associate judge |
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signed the order or judgment. |
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SECTION 12. Section 54.618, Government Code, is amended to |
|
read as follows: |
|
Sec. 54.618. DE NOVO HEARING BEFORE [APPEAL TO] REFERRING |
|
COURT. (a) A party may request a de novo hearing before the |
|
referring court [appeal an associate judge's report] by filing with |
|
the clerk of the referring court a written request [notice of
|
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appeal] not later than the seventh working [third] day after the |
|
date the party receives notice of the substance of the associate |
|
judge's report as provided by Section 54.614. |
|
(b) A request for a de novo hearing under this section must |
|
specify the issues that will be presented [An appeal] to the |
|
referring court [must be made in writing and specify the findings
|
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and conclusions of the associate judge to which the party objects.
|
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The appeal is limited to the findings and conclusions specified in
|
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the written appeal]. |
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(c) In the de novo hearing before the referring court, the |
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[The] parties may present witnesses [on appeal to the referring
|
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court as in a hearing de novo] on the issues specified [raised] in |
|
the request for hearing [appeal]. The referring court may also |
|
consider the record from the hearing before the associate judge, |
|
including the charge to and verdict returned by a jury, if the |
|
record was taken by a court reporter. |
|
(d) Notice of a request for a de novo hearing before [an
|
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appeal to] the referring court must be given to the opposing |
|
attorney in the manner provided by Rule 21a, Texas Rules of Civil |
|
Procedure. |
|
(e) If a request for a de novo hearing before [an appeal to] |
|
the referring court is filed by a party, any other party may file a |
|
request for a de novo hearing before [an appeal to] the referring |
|
court not later than the seventh day after the date of filing of the |
|
initial request [appeal]. |
|
(f) The referring court, after notice to the parties, shall |
|
hold a de novo hearing [on all appeals] not later than the 30th day |
|
after the date on which the initial request for a de novo hearing |
|
[appeal] was filed with the clerk of the referring court, unless all |
|
of the parties agree to a later date. |
|
(g) Before the start of a hearing conducted by an associate |
|
judge, the parties may waive the right of a de novo hearing before |
|
[appeal to] the referring court. The waiver may be in writing or on |
|
the record. |
|
(h) The denial of relief to a party after a de novo hearing |
|
under this section or a party's waiver of the right to a de novo |
|
hearing before the referring court does not affect the right of a |
|
party to file a motion for new trial, motion for judgment |
|
notwithstanding the verdict, or other post-trial motion. |
|
(i) A party may not demand a second jury in a de novo hearing |
|
before the referring court if the associate judge's proposed order |
|
or judgment resulted from a jury trial. |
|
SECTION 13. Section 54.619, Government Code, is amended to |
|
read as follows: |
|
Sec. 54.619. APPELLATE REVIEW. (a) A party's failure to |
|
request a de novo hearing before [Failure to appeal to] the |
|
referring court or a party's waiver of the right to request a de |
|
novo hearing before[, by waiver or otherwise, the approval by] the |
|
referring court [of an associate judge's report] does not deprive |
|
the [a] party of the right to appeal to or request other relief from |
|
a court of appeals or the supreme court. |
|
(b) Except as provided by Subsection (c), the [The] date the |
|
judge of a referring court signs an order or judgment is the |
|
controlling date for the purposes of appeal to or request for other |
|
relief from a court of appeals or the supreme court. |
|
(c) The date an order described by Section 54.610(a)(15) is |
|
signed by an associate judge is the controlling date for the purpose |
|
of an appeal to, or a request for other relief relating to the order |
|
from, a court of appeals or the supreme court. |
|
SECTION 14. The changes in law made by this Act to Chapter |
|
54, Government Code, apply to a matter referred to a statutory |
|
probate court associate judge on or after the effective date of this |
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Act. A matter referred to a statutory probate court associate judge |
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before the effective date of this Act is governed by the law in |
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effect on the date the matter was referred to the associate judge, |
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and the former law is continued in effect for that purpose. |
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SECTION 15. This Act takes effect September 1, 2009. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I hereby certify that S.B. No. 683 passed the Senate on |
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March 19, 2009, by the following vote: Yeas 31, Nays 0; and that |
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the Senate concurred in House amendments on May 30, 2009, by the |
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following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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I hereby certify that S.B. No. 683 passed the House, with |
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amendments, on May 27, 2009, by the following vote: Yeas 148, |
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Nays 0, one present not voting. |
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______________________________ |
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Chief Clerk of the House |
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Approved: |
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______________________________ |
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Date |
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______________________________ |
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Governor |