BILL ANALYSIS

C.S.H.B. 2417

By: Flynn

Defense & Veterans' Affairs

Committee Report (Substituted)

BACKGROUND AND PURPOSE

The Texas Code of Military Justice establishes military law for Texas military forces.  Military law exists separately from civilian law and reflects overriding demands of discipline and duty.  Congress recognized the need for a separate body of law to govern the military when it enacted the Uniform Code of Military Justice approximately 60 years ago.  Texas military forces are not subject to the federal code unless the forces are on active duty.  As the federal code is updated, changes to the state code must also be made.  C.S.H.B. 2417 updates the Texas Code of Military Justice.   

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.H.B. 2417 amends the Government Code to redefine, for purposes of the Texas Code of Military Justice, "commanding officer," "officer," "officer candidate," and "state military forces."  The bill defines "duty" for those purposes and defines "day" to mean a calendar day and specifies that the term is not synonymous with unit training assembly or any other accounting for training.  The bill establishes that a punishment authorized under the Texas Code of Military Justice that is measured in terms of days means calendar days. 

C.S.H.B. 2417, in a provision making the Texas Code of Military Justice applicable to all members of the state military forces who are not in federal service, specifies that the code applies to all members of the state military forces who are not in federal service under federal law relating to the armed forces. 

C.S.H.B. 2417 authorizes any commanding officer, under regulations as may be prescribed, to impose disciplinary punishments for minor offenses without the intervention of a court-martial in accordance with Texas Code of Military Justice provisions relating to nonjudicial punishment.  The bill establishes that there is no right to trial by court-martial in lieu of nonjudicial punishment imposed under these provisions.  The bill specifies that only the governor, the adjutant general, or an officer of a general or flag rank in command may delegate the powers of punishment under these provisions to a principal assistant who is a member of the state military forces.  The bill removes provisions authorizing limitations, under regulations that the governor may prescribe, to be placed on the powers of punishment granted to a commanding officer with respect to nonjudicial punishment.

C.S.H.B. 2417 requires any accused person who is facing discipline under provisions relating to a commanding officer's nonjudicial punishment to be afforded the opportunity to be represented by defense counsel having certain prescribed qualifications, if such a counsel is reasonably available, rather than if such a counsel is available.  The bill removes language making the requirement apply if disciplinary punishment other than admonition is to be imposed.  The bill clarifies that the accused may also be represented by civilian counsel at no expense to the state.

C.S.H.B. 2417 establishes the nonjudicial punishments that may be imposed on enlisted members or officers, as applicable, in the command of any commanding officer, any commanding officer of the grade of O-4 or above, or the governor, the adjutant general, an officer exercising general court-martial convening authority, or an officer of a general or flag rank in command.  The bill includes among the punishments reprimand, a specified fine, and a reduction in pay grade, as applicable.  The bill removes provisions establishing certain nonjudicial punishments for minor offenses without the intervention of a court-martial, including arrest in quarters, correctional custody, extra duties, and restriction.  The bill removes a provision authorizing an officer in charge to impose certain nonjudicial punishments that the governor specifically prescribes by regulation.  The bill authorizes an officer who imposes an authorized punishment or the officer's successor in command to at any time suspend, set aside, reduce, or remit any part or amount of the punishment and removes provisions authorizing the officer to suspend probationally a reduction in grade or fine or forfeiture. The bill removes a provision authorizing a commanding officer to delegate authority to make a reduction in pay grade to the commanding officer's executive officer, chief of staff, or vice commander. 

C.S.H.B. 2417, in a provision authorizing a person punished under provisions relating to a commanding officer's nonjudicial punishment who considers the punishment unjust or disproportionate to the offense to appeal to the next superior authority through the proper channel, specifies that the person is authorized to appeal not later than the 15th day after the date the punishment is either announced or sent to the accused, as the commanding officer determines.  The bill authorizes the authority who is to act on the appeal to refer the case to a judge advocate for consideration and advice before acting on the appeal.  The bill removes provisions requiring the authority, before acting on an appeal from certain punishments, to refer the case to a judge advocate or legal officer of the state military forces for consideration and advice.  

C.S.H.B. 2417 establishes that the imposition and enforcement of disciplinary punishment under the bill's provisions for any act or omission is not a bar to trial by a civilian court of competent jurisdiction for a serious crime or offense growing out of the same act or omission and not properly punishable under the bill's provisions relating to a commanding officer's nonjudicial punishment.  The bill, in a provision authorizing the governor by regulation to prescribe the form of records to be kept of disciplinary proceedings and to require that certain categories of those proceedings be in writing, authorizes the regulations to prescribe the form of records and requires that certain categories be in writing. 

C.S.H.B. 2417, in provisions establishing the three kinds of courts-martial in each of the state military forces, removes a special court-martial consisting of not fewer than three members.  The bill establishes that the Texas Army National Guard and the Texas Air National Guard have court-martial jurisdiction over all enlisted members subject to the Texas Code of Military Justice. 

C.S.H.B. 2417, in a provision listing the punishments that a general court-martial may, under certain limitations, adjudge under the Texas Code of Military Justice, increases from $1,000 to $10,000 the maximum fine and increases from 360 days to five years the maximum period of confinement that the court may adjudge.  The bill adds to the punishments the reduction of any enlisted member to any lower rank and removes the reduction of a noncommissioned officer to the ranks.  The bill adds bad conduct discharge to the authorized punishments of a general court-martial.   

C.S.H.B. 2417, in a provision establishing that a special court-martial has the same powers of punishment as a general court-martial with a certain exception, increases from $500 to $4,000 the maximum fine and increases from 180 days to one year the maximum period of confinement that a special court-martial may impose for a single offense.  The bill prohibits a bad conduct discharge, rather than a dishonorable discharge, from being adjudged by a special court-martial unless certain conditions are met.  The bill increases from $200 to $1,000 the maximum fine that a summary court-martial may impose for a single offense and clarifies that a sentence may include the reduction of a noncommissioned officer to any lower rank, rather than to the ranks in general. 

C.S.H.B. 2417 authorizes any commander in the state military forces not in federal service who is in the grade of O-5 or higher, rather than in the grade of lieutenant colonel or higher, to convene a special court-martial and authorizes any commander in the grade of O-4 or higher, rather than in the grade of major or higher, to convene a summary court-martial. 

C.S.H.B. 2417, in a provision establishing that a state commissioned officer in a duty status is eligible to serve on a court-martial, removes the specification that the court-martial be for the trial of a person who may lawfully be brought before the court for trial. 

C.S.H.B. 2417 redefines "unit" for purposes of provisions relating to the eligibility of an enlisted member of the state military forces in a duty status who is not a member of the same unit as the accused to serve on general and special courts-martial. 

C.S.H.B. 2417 prohibits trial counsel or defense counsel detailed for a general court-martial from being under the supervision or command of the other counsel unless the accused and the prosecution expressly waive this restriction.

C.S.H.B. 2417 prohibits a person subject to the Texas Code of Military Justice from considering or evaluating the performance of duty of a member of the state military forces as a witness in a court-martial in making certain advancement, transfer, or retention determinations about the member.  The bill establishes that a person subject to the Texas Code of Military Justice who commits an offense under the Penal Code is considered to violate the Texas Code of Military Justice and is subject to punishment under that code.  The bill adds a fine or forfeiture imposed by nonjudicial punishment to provisions relating to the payment of fines and costs under the Texas Code of Military Justice.

C.S.H.B. 2417 makes conforming and nonsubstantive changes.

EFFECTIVE DATE

September 1, 2011.

COMPARISON OF ORIGINAL AND SUBSTITUTE

C.S.H.B. 2417 contains provisions not included in the original redefining, for purposes of the Texas Code of Military Justice, "commanding officer," "officer," "officer candidate," and "state military forces" and defining "duty."

C.S.H.B. 2417 contains a provision not included in the original relating to persons who are subject to the Texas Code of Military Justice. 

C.S.H.B. 2417 contains provisions not included in the original specifying certain of a commanding officer's nonjudicial punishments.  The substitute differs from the original by removing provisions relating to limitations on a commanding officer's nonjudicial punishment, whereas the original retains the provisions.

C.S.H.B. 2417 differs from the original by requiring any accused person who is facing discipline under provisions relating to a commanding officer's nonjudicial punishment to be afforded the opportunity to be represented by defense counsel, if such counsel is reasonably available, whereas the original requires the accused to be afforded the opportunity to be represented by defense counsel, if such counsel is available and if disciplinary punishment other than admonition or reprimand is to be imposed. 

C.S.H.B. 2417 differs from the original by authorizing the accused to also be represented by civilian counsel at no expense to the state, whereas the original authorizes the accused to also employ civilian counsel of the accused's choosing at the accused's expense.  The substitute omits a provision included in the original establishing that in all proceedings relating to a commanding officer's nonjudicial punishment, the accused is not subject to correctional custody.

C.S.H.B. 2417 differs from the original by revising the nonjudicial punishments that may be imposed on enlisted members or officers, as appropriate, in the command of any commanding officer, any commanding officer of the grade of O-4 or above, or the governor, the adjutant general, an officer exercising general court-martial convening authority, or an officer of a general or flag rank in command, whereas the original revises the nonjudicial punishments that may be imposed on officers and other personnel or officers, as appropriate, in the command of any commanding officer, a commanding officer of the grade of O-4 or above, a commanding officer of the grade of O-6 or above, or the governor, adjutant general, another general court-martial convening authority, or an officer of a general or flag rank in command.

C.S.H.B. 2417 differs from the original by specifying that the nonjudicial punishments that a commanding officer may impose include a reprimand, a fine of a certain prescribed amount, and a reduction in pay grade and by making conforming changes, whereas the original specifies that the punishments are in addition to or in lieu of admonition or reprimand and include a fine of a certain prescribed amount and restriction to certain specified limits, with or without suspension from duty, and makes conforming changes. 

C.S.H.B. 2417 differs from the original by removing provisions relating to certain nonjudicial punishments that the governor specifically prescribes by regulation, whereas the original retains and amends the provisions. 

C.S.H.B. 2417 differs from the original by authorizing an officer who imposes a nonjudicial punishment to suspend, set aside, reduce, or remit any part or amount of the punishment and by removing certain related provisions, whereas the original authorizes the officer to suspend probationally any part or amount of the unexecuted punishment and retains certain related provisions. 

C.S.H.B. 2417 differs from the original by removing the authorization for the officer who imposes a nonjudicial punishment to mitigate a reduction in grade to a fine and by prohibiting certain other mitigated punishment from being for a greater amount than the punishment mitigated, whereas the original retains the authorization to mitigate a reduction in grade to a fine and removes the prohibition against making mitigated punishment be for a greater period than the punishment mitigated.   

C.S.H.B. 2417 differs from the original, in a provision relating to an appeal of a nonjudicial punishment, by setting a deadline for appeal, whereas the original contains no such deadline.  The substitute differs from the original by authorizing the authority who is to act on the appeal of a nonjudicial punishment to refer the case to a judge advocate for consideration and advice before acting on the appeal, whereas the original requires the authority, if the punishment relates to a certain reduction in pay grade, to refer the case to a judge advocate or legal officer of the state military forces for consideration and advice before acting on the appeal.

C.S.H.B. 2417 contains a provision not included in the original relating to the imposition and enforcement of disciplinary punishment under the bill's provisions and a trial by a civilian court of competent jurisdiction. The substitute contains a provision not included in the original relating to the requirement that certain categories of disciplinary punishment proceedings be in writing.  The substitute differs from the original by removing a provision authorizing a commanding officer to delegate authority to make a reduction in pay grade, whereas the original retains and amends the provision.

C.S.H.B. 2417 contains provisions not included in the original relating to courts-martial classified and jurisdiction of courts-martial in general.

C.S.H.B. 2417 differs from the original, in provisions authorizing punishments that a general court-martial may, under certain limitations, adjudge under the Texas Code of Military Justice,  by adding to the punishments the reduction of any enlisted member to any lower rank and a bad conduct discharge and removing from the punishments the reduction of a noncommissioned officer to the ranks, whereas the original removes from the punishments dismissal or dishonorable discharge and amends the punishment of reduction of a noncommissioned officer to the ranks.

C.S.H.B. 2417 differs from the original by providing that a special court-martial has jurisdiction to try a person subject to the Texas Code of Military Justice for any offense under the code and retaining an exception for a commissioned officer, whereas the original removes the exception for a commissioned officer.  The substitute contains a provision not included in the original relating to a bad conduct discharge in the jurisdiction of a special court-martial.

C.S.H.B. 2417 differs from the original by establishing that a summary court-martial has jurisdiction to try persons subject to the Texas Code of Military Justice for any offense under the code and retaining an exception for officers, whereas the original removes the exception for officers.  The substitute differs from the original by authorizing a summary court-martial to sentence a person for a period of confinement of not more than 90 days for a single offense, to forfeit pay and allowances, and to reduction of a noncommissioned officer to any lower rank, whereas the original authorizes a summary court-martial to sentence a person for a period of confinement of not more than 180 days for a single offense and removes the authorization relating to the forfeiture of pay and the reduction of a noncommissioned officer.   

C.S.H.B. 2417 omits a provision included in the original relating to theft and wrongful appropriation. 

C.S.H.B. 2417 contains provisions not included in the original relating to who may convene a special court-martial and summary court-martial, who may serve on a court-martial, who may act as a military judge of a court-martial, and supervision of trial counsel or defense counsel detailed for a general court-martial.     

C.S.H.B. 2417 contains a provision not included in the original relating to consideration of the performance of duty of a member of the state military forces as a witness in a court-martial in making certain determinations about the member.  The substitute omits a provision included in the original repealing provisions relating to certain of a commanding officer's nonjudicial punishment. The substitute contains provisions not included in the original relating to an explanation of the Texas Code of Military Justice to enlisted members of the military and to payment of a fine or forfeiture imposed by nonjudicial punishment under that code.

C.S.H.B. 2417 differs from the original in its conforming changes and in nonsubstantive ways by conforming to certain bill drafting conventions and making clarifying changes.