HBA-KMH C.S.H.B. 1461 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 1461 By: Dunnam Judicial Affairs 4/19/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE In 1988, the U.S. Congress passed the "Judicial Improvements and Access to Justice Act," Public Law 100-702, (28 U.S.C.A. 1, et seq.), (JIAJA), which addressed rulemaking by individual courts as well as the general rulemaking power of the U.S. Supreme Court and the procedures authorized in its exercise. Previously, the U.S. Supreme Court was empowered to promulgate the general rules that govern practice and procedure in the federal courts (including such compilations as the Federal Rules of Civil Procedure) and prescribing the method of their promulgation. JIAJA repealed and replaced this authority. While the U.S. Supreme Court's rulemaking power continues, it has been modified by providing for closer public and congressional scrutiny. The U.S. House of Representatives attempted to concurrently remove the supersession clause, which provides that all laws in conflict with such rules shall be of no further force or effect after such rules have taken effect, as "unwise and unconstitutional" but the U.S. Senate would not agree and JIAJA passed without that revision. Currently, under the Texas Constitution of 1876 (constitution), the Supreme Court of Texas has responsibility for the efficient administration of the judicial branch and is required to promulgate rules of administration, as well as rules of civil procedure for all courts, not inconsistent with the laws of the state as may be necessary for the efficient and uniform administration of justice in the various courts. Furthermore, the Supreme Court of Texas and the Texas Court of Criminal Appeals have express authority to promulgate other rules as may be prescribed by law or the constitution that may be delegated by the legislature and subject to limitations and procedures that may be provided by law. There is no proscription as to when the Supreme Court of Texas or the Texas Court of Criminal Appeals must promulgate rules, therefore they can be, and sometimes are, promulgated at a time which escapes review by the legislature. C.S.H.B. 1461 provides procedures for exercising the rulemaking authority of the Supreme Court and Texas Court of Criminal Appeals, including notification requirements, and subjection to the Open Meetings Act and Public Information Law. This bill also requires the Supreme Court of Texas and Texas Court of Criminal Appeals to provide a fiscal note with each proposed rule or proposed amendment to a rule. Furthermore, this bill requires the Office of Court Administration to conduct opinion polls of each proposed rule or proposed amendment to a rule. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority previously delegated to Supreme Court of Texas is modified in SECTIONS 2 and 4 and that rulemaking authority previously delegated to the Texas Court of Criminal Appeals is modified in SECTIONS 5 and 6 of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Requires this Act to be known as the Judicial Improvements and Access to Justice Act. SECTION 2. Amends Chapter 22, Government Code, by adding Subchapter E, as follows: SUBCHAPTER E. GENERAL RULEMAKING PROVISIONS Sec. 22.351. APPLICATION. (a) Makes this section applicable only to the supreme court and the court of criminal appeals. (b) Prohibits a court from issuing a rule or an amendment to a rule under Section 22.003, 22.004, 22.108, or 22.109, unless the court meets the requirements of this subchapter. Sec. 22.352. SUBMISSION OF RULES TO LEGISLATURE. (a) Requires a court to transmit to the legislature a copy of a proposed rule or an amendment to an existing rule not later than the 30th day after the date of commencement of each regular legislative session. (b) Prohibits a rule or an amendment transmitted under this section from taking effect earlier than the 90th day after the date of adjournment of the legislature for the session in which the rule or amendment is transmitted. Sec. 22.353. INTERIM RULEMAKING POWER. (a) Authorizes a court to adopt a rule or an amendment to a rule without following the procedures required by this subchapter if the court finds that the rule or the amendment is necessary for the proper administration of justice. (b) Requires the court to publish an opinion stating the specific reasons that the court is unable to follow the rulemaking procedures required by this subchapter, if the court adopts a rule or an amendment to a rule under this section. (c) Requires the court to transmit to the legislature a copy of a rule or an amendment to a rule adopted under this section. Sec. 22.354. OPEN MEETINGS; PUBLIC INFORMATION. (a) Subjects any group appointed by the court to consider a rule or an amendment to a rule under this subchapter to the open meeting law, Chapter 551, and the public information law, Chapter 552. Sec. 22.355. FISCAL NOTE. (a) Requires a court to prepare a fiscal note for a rule or an amendment to a rule transmitted to the legislature under this subchapter outlining the fiscal implications and probable cost of the measure. Provides that the statement must also describe in detail the probable economic effect of a rule or an amendment to a rule on users of the civil and criminal justice systems for each year of the first five years the rule or the amendment to a rule will be in effect. Authorizes the statement to include other information at the court's discretion. (b) Requires the comptroller, at the request of the court, to assist in the preparation of the economic impact statement. Sec. 22.356. JUDICIAL INPUT. (a) Requires the Office of Court Administration (OCA) to develop and compile an opinion poll on the rule or the amendment to a rule of certain lower court judges, not later than the 15th day after the date a proposed rule or proposed amendment to an existing rule is transmitted to the legislature under this subchapter. (b) Requires the OCA to report the results of the opinion poll not later than the 75th day after the date of commencement of the regular legislative session. SECTION 3. Amends Section 22.003(a), Government Code, to make a conforming change. SECTION 4. Amends Sections 22.004(a), (b), and (c), Government Code, to make conforming changes. SECTION 5. Amends Section 22.108(b), Government Code, to make conforming changes. SECTION 6. Amends Sections 22.109(a) and (b), Government Code, to make conforming changes. SECTION 7. Effective date: September 1, 1999. SECTION 8. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 1461 modifies the original in SECTION 2 by deleting proposed Section 22.352 (Sunset Provision). This section provided standard sunset language bringing the rulemaking functions of the court under review by Chapter 325 (Texas Sunset Act), without authorizing the abolition under that chapter. Redesignates proposed Sections 22.353 - 22.357 of the original to Sections 22.352 - 22.356. C.S.H.B. 1461 modifies the original in SECTION 2 by changing the title of Section 22.353 to "Interim Rulemaking Power" from "Emergency Rulemaking Power." C.S.H.B. 1461 modifies the original in SECTION 2 by changing the name of Section 22.354 to "Open Meetings; Public Information" from "Open Meetings; Open Records." The substitute subjects the provisions of this Act to the public information law, Chapter 552, rather than the open records law. This substitute also deletes a provision requiring the Office of Court Administration to employ a public access liaison to oversee and administer open records requests made under this subchapter.