By: Naishtat (Senate Sponsor - Watson) H.B. No. 3856

(In the Senate - Received from the House May 13, 2011; May 13, 2011, read first time and referred to Committee on Jurisprudence; May 21, 2011, reported favorably by the following vote: Yeas 5, Nays 0; May 21, 2011, sent to printer.)

A BILL TO BE ENTITLED

AN ACT

relating to the proceedings that may be referred to and the powers of a criminal law magistrate in Travis County.

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

SECTION 1. Section 54.976, Government Code, is amended by amending Subsections (a) and (b) and adding Subsection (d) to read as follows:

(a) A judge may refer to a magistrate any criminal case or matter relating to a criminal case for proceedings involving:

(1) a negotiated plea of guilty or no contest and sentencing;

(2) a pretrial motion;

(3) an examining trial;

(4) a [postconviction] writ of habeas corpus;

(5) a bond forfeiture suit;

(6) issuance of search warrants;

(7) setting, setting conditions, modifying, revoking, and surrendering of bonds, including surety bonds;

(8) arraignment of defendants;

(9) a motion to increase or decrease a bond;

(10) a motion to revoke community supervision or to proceed to an adjudication;

(11) an issue of competency or a civil commitment under Chapter 46, 46B, or 46C, Code of Criminal Procedure, with or without a jury; [and]

(12) a motion to modify community supervision;

(13) specialty court proceedings, including drug court proceedings, veteran's court proceedings, and driving while intoxicated court proceedings;

(14) an expunction or a petition for nondisclosure;

(15) an occupational driver's license;

(16) a waiver of extradition;

(17) the issuance of subpoenas and orders requiring the production of medical records, including records relating to mental health or substance abuse treatment; and

(18) any other matter the judge considers necessary and proper.

(b) A magistrate may select a jury. A magistrate may not preside over a contested criminal trial on the merits, regardless of whether the trial is before a jury.

(d) A judge may refer to a magistrate proceedings involving a grand jury, including issuance of grand jury subpoenas, receipt of grand jury reports on behalf of a district judge, the granting of a grand jury request to recess, motions to compel testimony, and discharge of a grand jury at the end of a term. A magistrate may not impanel a grand jury.

SECTION 2. Section 54.977, Government Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:

(a) To refer one or more cases or matters to a magistrate, a judge must issue an order of referral specifying the magistrate's duties.

(c) A judge may issue a general order of referral authorizing the magistrate to act on certain types of matters without requiring an order for each referral. Items that may be in the general order of referral include:

(1) waivers of extradition;

(2) search warrants;

(3) bench warrants;

(4) grand jury subpoenas;

(5) subpoenas and orders requiring the production of medical records, including records relating to mental health and substance abuse treatment; and

(6) records and other matters relating to the grand jury.

SECTION 3. Section 54.978, Government Code, is amended to read as follows:

Sec. 54.978. POWERS. (a) Except as limited by an order of referral, a magistrate to whom a case or matter related to a criminal case is referred may:

(1) conduct hearings;

(2) hear evidence;

(3) compel production of relevant evidence;

(4) rule on admissibility of evidence;

(5) issue summons for the appearance of witnesses;

(6) examine witnesses;

(7) swear witnesses for hearings;

(8) make findings of fact on evidence;

(9) formulate conclusions of law;

(10) rule on pretrial motions;

(11) recommend the rulings, orders, or judgment to be made in a case;

(12) regulate proceedings in a hearing;

(13) in any case referred under Section 54.976(a)(1):

(A) accept a negotiated plea of guilty;

(B) enter a finding of guilt and impose or suspend sentence; or

(C) defer adjudication of guilty; [and]

(14) notwithstanding Article 18.01(c), Code of Criminal Procedure, issue a search warrant under Article 18.02(10), Code of Criminal Procedure;

(15) notwithstanding Article 18.01(h), Code of Criminal Procedure, issue a search warrant under Article 18.02(12), Code of Criminal Procedure; and

(16) do any act and take any measure necessary and proper for the efficient performance of the duties required by the order of referral.

(b) A magistrate may not enter a ruling on any issue of law or fact if that ruling could result in dismissal or require dismissal of a pending criminal prosecution, but the magistrate may make findings, conclusions, and recommendations on those issues. A magistrate may sign a motion to dismiss submitted by an attorney representing the state on cases referred to the magistrate or on dockets called by the magistrate, and may consider unadjudicated cases at sentencing under Section 12.45, Penal Code.

(c) A magistrate has all of the powers of a magistrate under the laws of this state and may administer an oath for any purpose.

(d) A magistrate does not have authority under Subsection (a)(14) to issue a subsequent search warrant under Article 18.02(10), Code of Criminal Procedure.

(e) In this subsection, "pen register," "ESN reader," "trap and trace device," and "mobile tracking device" have the meanings assigned by Section 18.21, Code of Criminal Procedure. A magistrate may:

(1) notwithstanding Section 2(a), Article 18.21, Code of Criminal Procedure, issue an order under Section 2, Article 18.21, Code of Criminal Procedure, for the installation and use of:

(A) a pen register;

(B) an ESN reader;

(C) a trap and trace device; or

(D) equipment that combines the function of a pen register and a trap and trace device;

(2) issue an order to obtain access to stored communications under Section 5, Article 18.21, Code of Criminal Procedure; and

(3) notwithstanding Section 14(a), Article 18.21, Code of Criminal Procedure, issue an order for the installation and use of a mobile tracking device under Section 14, Article 18.21, Code of Criminal Procedure.

SECTION 4. The changes in law made by this Act apply to a cause of action referred to a magistrate on or after the effective date of this Act. A cause of action referred to a magistrate before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.

SECTION 5. 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, 2011.

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