85R2767 SRS-D

By: Zaffirini S.B. No. 963

A BILL TO BE ENTITLED

AN ACT

relating to the establishment of a guardianship court pilot program.

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

SECTION 1. Subtitle J, Title 2, Government Code, is amended by adding Chapter 111 to read as follows:

CHAPTER 111. GUARDIANSHIP COURT PILOT PROGRAM

Sec. 111.001. ESTABLISHMENT OF PILOT PROGRAM. (a) The supreme court shall establish in at least one administrative judicial region selected by the supreme court a guardianship court pilot program to facilitate the adjudication of guardianship matters in the region.

(b) In selecting an administrative judicial region to participate in the guardianship court pilot program, the supreme court shall consider regions where appointment of an associate judge for guardianship proceedings would reduce the guardianship caseload of the courts in the region.

Sec. 111.002. SELECTION OF COURTS; APPOINTMENT OF ASSOCIATE JUDGES. (a) The presiding judge of an administrative judicial region that is selected by the supreme court for the guardianship court pilot program, after conferring with the judges of courts in the region with jurisdiction over guardianship proceedings as defined by Section 1002.015, Estates Code, shall determine which courts require the appointment of a full-time or part-time associate judge to complete the courts' guardianship proceedings.

(b) The presiding judge of the administrative judicial region shall appoint each associate judge from a list of the qualified applicants who have submitted an application to the Office of Court Administration of the Texas Judicial System. Before making the appointment, the presiding judge must provide the list to each judge of a court from which guardianship proceedings will be referred to the associate judge. Each judge may recommend to the presiding judge the name of one or more applicants for appointment.

(c) An associate judge appointed under this chapter may be appointed to serve more than one court.

Sec. 111.003. REFERRAL OF GUARDIANSHIP PROCEEDINGS. (a) If an associate judge is appointed to serve one or more courts in an administrative judicial region, all guardianship proceedings as defined by Section 1002.015, Estates Code, shall be referred to the associate judge by:

(1) a general order for each county issued by the judge of the court for which the associate judge is appointed; or

(2) in the absence of the general order described by Subdivision (1), a general order issued by the presiding judge of the administrative judicial region who appointed the associate judge.

(b) This section does not limit the jurisdiction of a court to issue orders under Title 3, Estates Code.

Sec. 111.004. ELIGIBILITY FOR APPOINTMENT. To be eligible for appointment as an associate judge under this chapter, a person must:

(1) be a citizen of the United States;

(2) have resided in this state for two years preceding the appointment; and

(3) either be:

(A) eligible for assignment under Section 74.054 because the person is named on the list of retired and former judges maintained by the presiding judge of the administrative judicial region under Section 74.055; or

(B) licensed to practice law in this state and have been a practicing lawyer in this state, or a judge of a court in this state who is not otherwise eligible under Paragraph (A), for the four years preceding the date of appointment.

Sec. 111.005. TERM OF APPOINTMENT. (a) An associate judge appointed under this chapter serves for a term of two years from the date the associate judge is appointed and qualifies unless the appointment order provides otherwise.

(b) The appointment of an associate judge for a term does not affect the at-will employment status of the associate judge.

Sec. 111.006. DESIGNATION AND RESPONSIBILITIES OF HOST COUNTY AND PARTICIPATING COUNTIES. (a) Subject to the approval of the commissioners court of the proposed host county, the presiding judge of the administrative judicial region shall determine the host county of an associate judge appointed under this chapter.

(b) The host county shall provide an adequate courtroom and quarters, including furniture, necessary utilities, and telephone equipment and service, for the associate judge and other personnel assisting the associate judge.

(c) If the courts in more than one county in an administrative judicial region refer guardianship proceedings to an associate judge appointed under this chapter, the costs for the associate judge shall be divided proportionately among the counties served by the associate judge.

(d) The presiding judge of the administrative judicial region may appoint additional personnel as necessary to implement and administer this chapter, subject to the approval of the commissioners court of the host county and any other county responsible for the costs of the associate judge.

(e) An associate judge is not required to reside in the host county.

Sec. 111.007. COMPENSATION OF ASSOCIATE JUDGE. (a) An associate judge appointed under this chapter is entitled to a salary as determined by the presiding judge of the administrative judicial region, on approval of the supreme court and the commissioners court of each county served by the associate judge. The salary may not exceed 90 percent of the salary paid to a district judge as set by the General Appropriations Act.

(b) The associate judge's salary shall be paid from county funds available for payment of officers' salaries subject to the approval of each county commissioners court or from funds available from this state.

Sec. 111.008. GENERAL POWERS OF ASSOCIATE JUDGE. (a) Except as limited by an order of referral, an associate judge appointed under this chapter may:

(1) conduct a hearing;

(2) hear evidence;

(3) compel production of relevant evidence;

(4) rule on the admissibility of evidence;

(5) issue a summons for the appearance of witnesses;

(6) examine a witness;

(7) swear a witness for a hearing;

(8) make findings of fact on evidence;

(9) formulate conclusions of law;

(10) recommend an order to be rendered in a case;

(11) regulate all proceedings in a hearing;

(12) render and sign a pretrial order;

(13) order the attachment of a witness or party who fails to obey a subpoena;

(14) order the detention of a witness or party found guilty of contempt, pending approval by the referring court; and

(15) take action as necessary and proper for efficient performance of the associate judge's duties.

(b) On the motion of a party or of the associate judge, an associate judge may refer a complex matter back to the referring court for final disposition.

(c) An associate judge may recommend to the referring court any order after a trial on the merits.

Sec. 111.009. SUPERVISION OF ASSOCIATE JUDGES. The Office of Court Administration of the Texas Judicial System shall assist the presiding judge of an administrative judicial region selected for the guardianship court pilot program in:

(1) monitoring the associate judges' compliance with job performance standards and state laws and policies;

(2) addressing the training needs and resource requirements of the associate judges; and

(3) receiving, investigating, and resolving complaints about a particular associate judge under this chapter based on uniform standards adopted by the supreme court.

Sec. 111.010. ATTENDANCE OF BAILIFF. A bailiff may attend a guardianship proceeding conducted by an associate judge under this chapter if directed by the referring court.

Sec. 111.011. WITNESS. A witness appearing before an associate judge conducting a guardianship proceeding under this chapter is subject to the penalties for perjury provided by law.

Sec. 111.012. COURT REPORTER; RECORD. (a) A court reporter may be provided during a guardianship proceeding conducted by an associate judge under this chapter.

(b) A party, an associate judge, or the referring court may provide for a court reporter during the guardianship proceeding if one is not otherwise provided.

(c) In the absence of a court reporter or an agreement of the parties, the record may be preserved by any means approved by the associate judge.

(d) The referring court or associate judge may assess the expense of preserving the record as costs.

Sec. 111.013. REPORT. (a) The associate judge's report may contain the associate judge's findings, conclusions, or recommendations and may be in the form of a proposed order. The associate judge's report must be in writing in the form directed by the referring court.

(b) After a hearing, the associate judge shall provide the parties participating in the hearing notice of the substance of the associate judge's report, including any proposed order.

(c) Notice may be given to the parties:

(1) in open court, by an oral statement or a copy of the associate judge's written report, including any proposed order;

(2) by certified mail, return receipt requested; or

(3) by facsimile transmission.

(d) There is a rebuttable presumption that notice is received on the date stated on:

(1) the signed return receipt, if notice was provided by certified mail; or

(2) the confirmation page produced by the facsimile machine, if notice was provided by facsimile transmission.

(e) After a hearing conducted by an associate judge, the associate judge shall send the associate judge's signed and dated report, including any proposed order, and all other papers relating to the case to the referring court.

Sec. 111.014. NOTICE OF RIGHT TO DE NOVO HEARING BEFORE REFERRING COURT. (a) Notice of the right to a de novo hearing before the referring court shall be given to all parties.

(b) The notice may be given:

(1) by oral statement in open court;

(2) by posting inside or outside the courtroom of the referring court; or

(3) as otherwise directed by the referring court.

Sec. 111.015. ORDER OF COURT. (a) Pending a de novo hearing before the referring court, a proposed order or judgment of the associate judge is in full force and effect and is enforceable as an order or judgment of the referring court, except for an order providing for the appointment of a receiver.

(b) If a request for a de novo hearing before the referring court is not timely filed or the right to a de novo hearing before the referring court is waived, the proposed order or judgment of the associate judge becomes the order or judgment of the referring court only on the referring court's signing the proposed order or judgment.

(c) An order by an associate judge for the temporary detention or incarceration of a witness or party shall be presented to the referring court on the day the witness or party is detained or incarcerated. The referring court, without prejudice to the right to a de novo hearing provided by Section 111.017, may approve the temporary detention or incarceration or may order the release of the party or witness, with or without bond, pending a de novo hearing. If the referring court is not immediately available, the associate judge may order the release of the party or witness, with or without bond, pending a de novo hearing or may continue the person's detention or incarceration for not more than 72 hours.

Sec. 111.016. JUDICIAL ACTION ON ASSOCIATE JUDGE'S PROPOSED ORDER OR JUDGMENT. (a) Unless a party files a written request for a de novo hearing before the referring court, the referring court may:

(1) adopt, modify, or reject the associate judge's proposed order or judgment;

(2) hear further evidence; or

(3) recommit the matter to the associate judge for further proceedings.

(b) If a request for a de novo hearing before the referring court is not timely filed or the right to a de novo hearing before the referring court is waived, the proposed order or judgment of the associate judge for the guardianship proceeding becomes the order or judgment of the referring court by operation of law without ratification by the referring court.

Sec. 111.017. DE NOVO HEARING BEFORE REFERRING COURT. (a) A party may request a de novo hearing before the referring court by filing with the clerk of the referring court a written request not later than the third working day after the date the party receives notice of the substance of the associate judge's report as provided by Section 111.013.

(b) A request for a de novo hearing under this section must specify the issues that will be presented to the referring court.

(c) In the de novo hearing before the referring court, the parties may present witnesses on the issues specified in the request for hearing. 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.

(d) Notice of a request for a de novo hearing before the referring court shall be given to the opposing attorney under Rule 21a, Texas Rules of Civil Procedure.

(e) If a request for a de novo hearing before the referring court is filed by a party, any other party may file a request for a de novo hearing before the referring court not later than the third working day after the date the initial request was filed.

(f) The referring court, after notice to the parties, shall hold a de novo hearing not later than the 30th day after the date on which the initial request for a de novo hearing was filed with the clerk of the referring court.

(g) Before the start of a hearing by an associate judge, the parties may waive the right of a de novo hearing before the referring court 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.

Sec. 111.018. APPELLATE REVIEW. (a) A party's failure to request a de novo hearing before the referring court or a party's waiver of the right to request a de novo hearing before the referring court does not deprive the 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 date an order or judgment by the referring court is signed 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 agreed order or a default order 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.

Sec. 111.019. IMMUNITY. An associate judge appointed under this chapter has the judicial immunity of a district judge. All existing immunity granted an associate judge by law, express or implied, continues in full force and effect.

Sec. 111.020. CONCLUSION; REPORT. (a) The guardianship court pilot program established under this chapter concludes December 1, 2019.

(b) The Office of Court Administration of the Texas Judicial System and the supreme court shall prepare a report on the guardianship court pilot program conducted under this chapter that includes recommendations on the continuation of the program. The office shall submit the report to the governor, the lieutenant governor, the speaker of the house of representatives, and each member of the legislature not later than December 1, 2019. The office may submit an interim report not later than December 1, 2018.

Sec. 111.021. EXPIRATION. This chapter expires September 1, 2021.

SECTION 2. The Texas Supreme Court shall establish the guardianship court pilot program as required by Chapter 111, Government Code, as added by this Act, not later than October 1, 2017.

SECTION 3. This Act takes effect September 1, 2017.