RBT S.B. 1346 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 1346 By: Ellis Judicial Affairs 4/22/1999 Engrossed BACKGROUND AND PURPOSE The State Commission on Judicial Conduct (commission) was created by constitutional amendment in 1965 and given authority to discipline appellate and district judges. In 1970, that authority was extended to other state judges, and in 1984 it was extended to former judges, magistrates, and masters. Currently, the commission has authority over more than 3,300 judges. The commission's powers have steadily broadened to include public and private admonitions, warnings, reprimands, and orders of education. In 1987, Section 33.034, Government Code (Review of Commission Decision), was added to provide for appellate review of sanctions imposed by the commission. While the commission itself may not remove a judge from office, it may initiate formal proceedings against a judge -- a public trial that may result in the removal of a judge from office by a seven-member tribunal. Constitutional and legislative changes over the past three decades have created incongruities within Chapter 33, Government Code (State Commission on Judicial Conduct), and other relevant law. S.B. 1346 amends Chapter 33 to improve consistency and clarity, and to provide consistency and conformity with other relevant law. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Sections 33.001(a) and (b), Government Code, as follows: (a) Defines, for the purpose of Chapter 33, Government Code (State Commission on Judicial Conduct), the following terms: "censure," "chairperson," "clerk," "examiner," "formal hearing," "formal proceedings," "review tribunal," "sanction," and "special courts of review." Amends the definition of "judge." Redesignates Subdivisions (1), (2), and (3) to (4), (8), and (12), respectively, and makes a nonsubstantive change. (b) Makes a nonsubstantive change. SECTION 2. Amends Section 33.002(a), Government Code, to make a nonsubstantive change. SECTION 3. Amends Section 33.005, Government Code, by amending Subsections (b) and (c) and adding Subsection (e), as follows: (b) Deletes examples of proper judicial conduct from the annual statistical information to be included in the State Commission on Judicial Conduct's (commission) annual report. (c) Includes the editor of the Texas Bar Journal in a list of persons to whom the commission is required to distribute its annual report. (e) Requires the Texas Bar Journal to publish the annual report. SECTION 4. Amends Subchapter A, Chapter 33, Government Code, by adding Section 33.006, as follows: Sec. 33.006. IMMUNITY FROM LIABILITY (a) Sets forth the persons to whom this section applies. (b) Provides that a person to whom this section applies is not liable for an act or omission committed by the person within the scope of the person's official duties. (c) Provides that such immunity is absolute and unqualified, and that it extends to any action at law or in equity. SECTION 5. Amends Section 33.021, Government Code, to make a nonsubstantive change regarding the employment of special masters. SECTION 6. Amends Section 33.022, Government Code, as follows: Sec. 33.022. New title: INVESTIGATIONS AND FORMAL PROCEEDINGS. (a) Authorizes the commission to conduct a preliminary investigation of the circumstances surrounding an allegation or appearance of misconduct or disability of a judge to determine if the allegation or appearance is frivolous. (b) Requires the commission, if it finds an allegation or appearance to be unfounded or frivolous during a preliminary investigation under Subsection (a), to terminate the investigation. (c) Sets forth the procedure that the commission must follow if the preliminary investigation results do not determine an allegation or appearance to be unfounded or frivolous. Sets forth actions the commission may take if the preliminary investigation results do not determine an allegation to be unfounded or frivolous. (d) Requires the commission to serve an order of deposition to a person other than the accused judge on both the person who is the subject of the deposition and the judge who is the subject of the investigation (judge). Provides that the order must be served within a reasonable amount of time before the date of the deposition. (e) Authorizes the commission to file an application in a district court to enforce an order of deposition. (f) Requires the commission to notify the judge, in writing, of the disposition of a full investigation conducted by the commission under this section. Deletes former Subsection (f) to make a conforming change. (g) Makes nonsubstantive changes. Redesignated from existing Subsection (b). (h) Requires a notice served on a judge to inform the judge that formal proceedings will be initiated against the judge to specify the standards, rather than statute or rule, which the judge is contended to have violated. Makes conforming changes. (i) Redesignated from existing Subsection (b). Makes conforming and nonsubstantive changes. (j) Redesignated from existing Subsection (e). Makes conforming changes. (k) Provides that a judge is not entitled to a jury trial in formal proceedings before a special master or the commission. SECTION 7. Amends Section 33.023, Government Code, by amending Subsection (a) and adding Subsection (d), as follows: Sec. 33.023. New title: PHYSICAL AND MENTAL INCAPACITY OF JUDGE. (a) Provides that in any investigation, in addition to proceeding, involving the involuntary retirement of a judge because of a physical or mental incapacity to discharge the judge's duty, the commission may order, rather than require, a judge to submit to a physical and mental examination. (d) Authorizes the commission, if a judge refuses to submit to an examination ordered under this section, to petition the court for an order compelling the judge to submit to the examination. SECTION 8. Amends Section 33.024, Government Code, to make conforming changes. SECTION 9. Amends Section 33.025, Government Code, as follows: Sec. 33.025. New title: ENFORCEMENT OF SUBPOENA. (a) Authorizes the commission to file an application in a district court, with a special master, or with a special court of review to enforce a subpoena issued under this chapter. Deletes existing text of Subsection (b) and Subsection (c) entirely, regarding the enforcement of a subpoena . (b) Authorizes a special master or special court of review to enforce by contempt a subpoena issued under this chapter. SECTION 10. Amends Section 33.026, Government Code, as follows: Sec. 33.026. New title: WITNESS IMMUNITY. (a) Makes conforming changes. SECTION 11. Amends Section 33.027, Government Code, as follows: (a) Sec. 33.027. New title: DISCOVERY. (a) Requires, in formal proceedings or a proceeding before a special court of review, discovery to be conducted according to the rules that generally apply to civil cases. Deletes existing text regarding court-ordered deposition testimony. Makes a conforming change. (b) Authorizes a special master, the commission, or a special court of review, upon request, to expedite discovery in formal proceedings or in a proceeding before a special court of review. Makes a conforming change. Deletes existing text regarding court-ordered deposition testimony. (c) Provides that the discussions, thought processes, or individual votes of the commission, the discussions or thought processes of commission employees including special counsel, or the identity of the complainant or informant, should that person request confidentiality, may not be the subject of a discovery request in formal proceedings or in a proceeding before a special court of review. Makes a conforming change. Deletes existing text regarding courtordered deposition testimony. SECTION 12. Amends Sections 33.028(a) and (b), as follows: (a) Makes a conforming change regarding the issuance of process. (b) Sets forth a list of persons who may serve process or execute a lawful order under this chapter. Makes a conforming change. SECTION 13. Amends Section 33.029, Government Code, to make a conforming change. SECTION 14. Amends Section 33.030, Government Code, as follows: Sec. 33.030. New title: ASSISTANCE TO COMMISSION, SPECIAL MASTER, OR SPECIAL COURT OF REVIEW. Makes conforming changes. SECTION 15. Amends Section 33.031, Government Code, as follows: Sec. 33.031. NO AWARD OF COSTS. Provides that neither court costs nor attorney's fees may be awarded under this chapter. SECTION 16. Amends Section 33.032, Government Code, as follows: Sec. 33.032. New title: CONFIDENTIALITY OF PAPERS, RECORDS, AND PROCEEDINGS. (a) Makes conforming changes. (b) Provides that evidence introduced during the formal hearing shall be public on the convening of the formal hearing. Makes conforming changes. (d) Provides that the disciplinary record of a judge, including any private sanctions, is admissible in a subsequent proceeding under this chapter. (e) Authorizes a judge to make a written request that the commission provide a person designated in the request, including the judge, with certain specified information on the disposition of a complaint filed against that judge. Authorizes the commission to release such information, but allows the commission to refuse to release the identity of a complainant. SECTION 17. Amends Section 33.033, Government Code, by amending Subsections (a)-(d), as follows: (a) Makes a nonsubstantive change. (b) Authorizes the commission to inform a complainant that a public sanction has been issued by the commission when notifying a complainant of the disposition of a complaint. Makes nonsubstantive and conforming changes. (c) Prohibits the notification to a complainant from containing the name of a judge unless a public sanction has been issued by the commission. (d) Provides that the commission must include a copy of the public sanction when notifying a complainant of the disposition of a complaint, if the commission has issued such a sanction. SECTION 18. Amends Sections 33.034(a), (d)-(f), and (h), relating to the review of a decision of the commission, as follows: (a) Makes a conforming change. (d) Sets forth a procedure for the filing of a charging document within 15 days of the appointment of a court of review. Provides that the judge who is the subject of such a document must receive the document, as well as each justice on the court of review. Makes conforming changes. (e) Provides that any evidence introduced during a proceeding under this section is public. Makes a nonsubstantive change. (f) Provides that a review procedure under this chapter, prospective to this section, is governed to the extent practicable by the rules of law, evidence, and procedure that apply to the trial of civil actions generally. (h) Authorizes a review court under this chapter to grant one or more continuances, not to exceed a total of 30 days, for good cause. Makes conforming changes. SECTION 19. (a) Provides that, except as provided under Subsection (b), the change in law made by this Act applies only to an investigation or proceeding under Chapter 33, Government Code, as amended by this Act, instituted on or after the effective date of this Act. (b) Provides that the change in law made by SECTION 4 of this Act applies only to a cause of action that accrues on or after the effective date of this Act. Makes application of this Act prospective. SECTION 20. Emergency clause. Effective date: upon passage.