82R1213 YDB-D

By: Raymond H.J.R. No. 35

A JOINT RESOLUTION

proposing a constitutional amendment to abolish the court of criminal appeals and establish one supreme court with civil and criminal jurisdiction.

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

SECTION 1. Subsection (a), Section 11a, Article I, Texas Constitution, is amended to read as follows:

(a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Supreme Court [of Criminal Appeals] of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Supreme Court [of Criminal Appeals].

SECTION 2. Section 1, Article V, Texas Constitution, is amended to read as follows:

Sec. 1. (a) The judicial power of this State shall be vested in one Supreme Court, [in one Court of Criminal Appeals,] in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.

(b) The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.

(c) A reference in this constitution or other law to the Court of Criminal Appeals means the Supreme Court, a reference to a judge of the Court of Criminal Appeals means a justice of the Supreme Court, and a reference to the presiding judge of the Court of Criminal Appeals means the chief justice of the Supreme Court.

SECTION 3. Subsection (8), Section 1-a, Article V, Texas Constitution, is amended to read as follows:

(8) After such investigation as it deems necessary, the Commission may in its discretion issue a private or public admonition, warning, reprimand, or requirement that the person obtain additional training or education, or if the Commission determines that the situation merits such action, it may institute formal proceedings and order a formal hearing to be held before it concerning the public censure, removal, or retirement of a person holding an office or position specified in Subsection (6) of this Section, or it may in its discretion request the Supreme Court to appoint an active or retired District Judge or Justice of a Court of Appeals, a [or] retired [Judge or] Justice of the [Court of Criminal Appeals or the] Supreme Court, or a retired Judge of the Court of Criminal Appeals, as that court existed before January 1, 2012, as a Master to hear and take evidence in any such matter, and to report thereon to the Commission. The Master shall have all the power of a District Judge in the enforcement of orders pertaining to witnesses, evidence, and procedure. If, after formal hearing, or after considering the record and report of a Master, the Commission finds good cause therefor, it shall issue an order of public censure or it shall recommend to a review tribunal the removal or retirement, as the case may be, of the person in question holding an office or position specified in Subsection (6) of this Section and shall thereupon file with the tribunal the entire record before the Commission.

SECTION 4. Section 3, Article V, Texas Constitution, is amended by amending Subsection (a) and adding Subsections (c) and (d) to read as follows:

(a) The Supreme Court shall exercise the judicial power of the state except as otherwise provided in this Constitution. Its jurisdiction shall be co-extensive with the limits of the State and its determinations shall be final [except in criminal law matters]. Its appellate jurisdiction shall be final and shall extend to all cases except [in criminal law matters and] as otherwise provided in this Constitution or by law. The Supreme Court and the Justices thereof shall have power to issue writs of habeas corpus, as may be prescribed by law, and under such regulations as may be prescribed by law, the said courts and the Justices thereof may issue the writs of mandamus, procedendo, prohibition, certiorari and such other writs, as may be necessary to enforce its jurisdiction. The Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State.

(c) The appeal of all cases in which the death penalty has been assessed shall be to the Supreme Court. The appeal of all other criminal cases shall be to the Courts of Appeals as prescribed by law. In addition, the Supreme Court may, on its own motion, review a decision of a Court of Appeals in a criminal case as provided by law. Discretionary review by the Supreme Court is not a matter of right, but of sound judicial discretion.

(d) For the purpose of hearing criminal cases, the Supreme Court may sit in panels of three Justices designated in accordance with rules established by the court. In a panel of three Justices, two Justices constitute a quorum and the concurrence of two Justices is required for a decision. The Chief Justice, under rules established by the court, may convene the court en banc for the purpose of hearing criminal cases. The court must sit en banc during proceedings involving capital punishment and other cases as required by law. When convened en banc, five Justices constitute a quorum and the concurrence of five Justices is required for a decision. The Supreme Court may appoint Commissioners in aid of the court as provided by law.

SECTION 5. Section 3-c, Article V, Texas Constitution, is amended to read as follows:

Sec. 3-c. (a) The supreme court has [and the court of criminal appeals have] jurisdiction to answer questions of state law certified from a federal appellate court.

(b) The supreme court [and the court of criminal appeals] shall promulgate rules of procedure relating to the review of those questions.

SECTION 6. Section 5a, Article V, Texas Constitution, is amended to read as follows:

Sec. 5a. The Supreme Court[, Court of Criminal Appeals,] and each Court of Appeals shall each appoint a clerk of the court, who shall give bond in the manner required by law, may hold office for four years subject to removal by the appointing court for good cause entered of record on the minutes of the court, and shall receive such compensation as the legislature may provide.

SECTION 7. Section 5b, Article V, Texas Constitution, is amended to read as follows:

Sec. 5b. The Supreme Court [and the Court of Criminal Appeals] may sit at any time during the year at the seat of government or, at the court's discretion, at any other location in this state for the transaction of business, and each term [of either court] shall begin and end with each calendar year.

SECTION 8. Subsection (b), Section 7a, Article V, Texas Constitution, is amended to read as follows:

(b) The membership of the board consists of the Chief Justice of the Texas Supreme Court who serves as chairman, [the presiding judge of the Texas Court of Criminal Appeals,] the presiding judge of each of the administrative judicial districts of the state, the president of the Texas Judicial Council, and one person who is licensed to practice law in this state appointed by the governor with the advice and consent of the senate for a term of four years. In the event of a vacancy in the appointed membership, the vacancy is filled for the unexpired term in the same manner as the original appointment.

SECTION 9. Section 11, Article V, Texas Constitution, is amended to read as follows:

Sec. 11. (a) No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case. When the Supreme Court or[, the Court of Criminal Appeals,] the Court of Appeals[,] or any member of [any of] those courts shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the Governor of the State, who shall immediately commission the requisite number of persons learned in the law for the trial and determination of such cause or causes. When a judge of the District Court is disqualified by any of the causes above stated, the parties may, by consent, appoint a proper person to try said case; or upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law.

(b) The [And the] District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law. This disqualification of judges of inferior tribunals shall be remedied and vacancies in their offices filled as may be prescribed by law.

SECTION 10. Section 28(a), Article V, Texas Constitution, is amended to read as follows:

(a) A vacancy in the office of Chief Justice, Justice, or Judge of the Supreme Court, [the Court of Criminal Appeals,] the Court of Appeals, or the District Courts shall be filled by the Governor until the next succeeding General Election for state officers, and at that election the voters shall fill the vacancy for the unexpired term.

SECTION 11. Section 31(c), Article V, Texas Constitution, is amended to read as follows:

(c) The legislature may delegate to the Supreme Court [or Court of Criminal Appeals] the power to promulgate such other rules as may be prescribed by law or this Constitution, subject to such limitations and procedures as may be provided by law.

SECTION 12. The following temporary provision is added to the Texas Constitution:

TEMPORARY PROVISION. (a) This section applies to the constitutional amendment proposed by the 82nd Legislature, Regular Session, 2011, abolishing the court of criminal appeals and vesting that court's criminal jurisdiction in the supreme court. The constitutional amendment takes effect January 1, 2012.

(b) The court of criminal appeals and the positions of judge and presiding judge of the court of criminal appeals are abolished on January 1, 2012.

(c) Unless otherwise provided by the supreme court under this subsection or by other law, a matter pending before the court of criminal appeals immediately before January 1, 2012, is considered pending in the supreme court on that date. The supreme court by rule or order may make any provision necessary to ensure that a change made by the constitutional amendment described by Subsection (a) of this section or by the legislature in conformance with that constitutional amendment does not adversely affect the substantial rights of any party having a matter pending before any court on January 1, 2012.

(d) Except as otherwise provided by law, rules adopted by the court of criminal appeals that are in effect immediately before January 1, 2012, are continued in effect until superseded by law or supreme court rules.

(e) The supreme court by rule or order may adopt any additional saving or transitional procedures or provisions the supreme court considers appropriate to implement the constitutional amendment described by Subsection (a) of this section fairly and efficiently. A rule or order under this subsection may be superseded by statute.

(f) This section expires January 1, 2015.

SECTION 13. Sections 4 and 5, Article V, Texas Constitution, are repealed.

SECTION 14. This proposed constitutional amendment shall be submitted to the voters at an election to be held November 8, 2011. The ballot shall be printed to provide for voting for or against the proposition: "The constitutional amendment to abolish the court of criminal appeals and establish one supreme court with civil and criminal appellate jurisdiction."