By: Duncan S.B. No. 263
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the assignment of certain retired or former judges as
1-2 visiting judges.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 74.003, Government Code, is amended by
1-5 amending Subsection (b) and adding Subsection (f) to read as
1-6 follows:
1-7 (b) The chief justice of the supreme court may assign a
1-8 qualified retired justice or judge of the supreme court, of the
1-9 court of criminal appeals, or of a court of appeals to a court of
1-10 appeals for active service regardless of whether a vacancy exists
1-11 in the court to which the justice is assigned. To be eligible for
1-12 assignment under this subsection, a retired justice or judge must:
1-13 (1) have served as an active justice or judge for at
1-14 least 96 months in a district, statutory probate, statutory county,
1-15 or appellate court, including at least 48 months in an appellate
1-16 court;
1-17 (2) not have been removed from office;
1-18 (3) certify under oath to the chief justice of the
1-19 supreme court, on a form prescribed by the chief justice, that the
1-20 justice or judge did not resign from office after having received
1-21 notice that formal proceedings by the State Commission on Judicial
1-22 Conduct had been instituted as provided in Section 33.022 and
1-23 before the final disposition of the proceedings;
1-24 (4) annually demonstrate that the justice or judge has
2-1 completed in the past calendar year the educational requirements
2-2 for active appellate court justices or judges; and
2-3 (5) certify to the chief justice of the supreme court
2-4 a willingness not to appear and plead as an attorney in any court
2-5 in this state for a period of two years.
2-6 (f) For the purposes of Subsection (b)(1), a month of
2-7 service is calculated as a calendar month or a portion of a
2-8 calendar month in which a justice or judge was authorized by
2-9 election or appointment to preside.
2-10 SECTION 2. Section 74.053, Government Code, is amended to
2-11 read as follows:
2-12 Sec. 74.053. OBJECTION TO [ASSIGNED] JUDGE ASSIGNED TO A
2-13 TRIAL COURT. (a) When a judge is assigned to a trial court under
2-14 this chapter the presiding judge shall, if it is reasonable and
2-15 practicable and if time permits, give notice of the assignment to
2-16 each attorney representing a party to the case that is to be heard
2-17 in whole or part by the assigned judge.
2-18 (b) If a party to a civil case files a timely objection to
2-19 the assignment, the judge shall not hear the case. Except as
2-20 provided by Subsection (d), each party to the case is only entitled
2-21 to one objection under this section for that case.
2-22 (c) An objection under this section must be filed not later
2-23 than the seventh day after the date that the party receives actual
2-24 notice of the assignment or, if seven days' notice is not given,
2-25 before the first hearing or trial, including pretrial hearings,
2-26 commences, whichever occurs earlier. The presiding judge may
3-1 extend the time to file an objection under this section on written
3-2 motion by a party who demonstrates good cause [over which the
3-3 assigned judge is to preside].
3-4 (d) An assigned [A former] judge or justice who was defeated
3-5 in the last primary or general election for which the judge or
3-6 justice was a candidate for the judicial office held by the judge
3-7 or justice [not a retired judge] may not sit in a case if either
3-8 party objects to the judge or justice.
3-9 (e) In this section, "party" includes multiple parties
3-10 aligned in a case as determined by the presiding judge.
3-11 (f) In addition to other methods of service permitted,
3-12 notice and objections under this section may be served by
3-13 electronic mail.
3-14 SECTION 3. Subsections (c) and (e), Section 74.055,
3-15 Government Code, are amended to read as follows:
3-16 (c) To be eligible to be named on the list, a retired or
3-17 former judge must:
3-18 (1) have served as an active [a] judge for at least 96
3-19 [48] months in a district, statutory probate, statutory county, or
3-20 appellate court;
3-21 (2) have developed substantial experience in the
3-22 judge's area of specialty;
3-23 (3) not have been removed from office;
3-24 (4) certify under oath to the presiding judge, on a
3-25 form prescribed by the state board of regional judges, that the
3-26 judge did not resign from office after having received notice that
4-1 formal proceedings by the State Commission on Judicial Conduct had
4-2 been instituted as provided in Section 33.022 and before the final
4-3 disposition of the proceedings;
4-4 (5) annually demonstrate that the judge has completed
4-5 in the past calendar year the educational requirements for active
4-6 district, statutory probate, and statutory county court judges; and
4-7 (6) certify to the presiding judge a willingness not
4-8 to appear and plead as an attorney in any court in this state for a
4-9 period of two years.
4-10 (e) For purposes of Subsection (c)(1), a month of service is
4-11 calculated as a calendar month or a portion of a calendar month in
4-12 which a judge was authorized by election or appointment [by the
4-13 governor] to preside.
4-14 SECTION 4. Section 75.551, Government Code, is amended to
4-15 read as follows:
4-16 Sec. 75.551. OBJECTION TO JUDGE OR JUSTICE ASSIGNED TO AN
4-17 APPELLATE COURT. (a) When a judge or justice is assigned to an
4-18 appellate court under this chapter or Chapter 74, the person who
4-19 assigns the judge or justice shall, if it is reasonable and
4-20 practicable and if time permits, give notice of the assignment to
4-21 each attorney representing a party to the case that is to be heard
4-22 in whole or part by the assigned judge or justice.
4-23 (b) A judge or justice assigned to an appellate court may
4-24 not hear a civil case if a party to the case files a timely
4-25 objection to the assignment of the judge or justice. Except as
4-26 provided by Subsection (d):
5-1 (1) each party to the case is entitled to only one
5-2 objection under this section for that case in the appellate court;
5-3 and
5-4 (2) a party to an appeal may not in the same case
5-5 object in an appellate court to the assignment of a judge or
5-6 justice under Section 74.053(b) and under this subsection.
5-7 (c) An objection under this section must be filed not later
5-8 than the seventh day after the date that the party receives actual
5-9 notice of the assignment or, if seven days' notice is not given,
5-10 before the case is submitted to the court, whichever occurs
5-11 earlier. The court may extend the time to file an objection under
5-12 this section on a showing of good cause [first hearing in which the
5-13 assigned judge or justice is assigned to sit].
5-14 (d) A [former] judge or justice who was defeated in the last
5-15 primary or general election for which the judge or justice was a
5-16 candidate for the judicial office held by the judge or justice [not
5-17 a retired judge or justice] may not sit in an appellate case if
5-18 either party objects to the judge or justice.
5-19 (e) In this section, "party" includes multiple parties
5-20 aligned in a case as determined by the appellate court.
5-21 (f) In addition to other methods of service permitted,
5-22 notice and objections under this section may be served by
5-23 electronic mail.
5-24 SECTION 5. Subsection (d), Section 74.055, Government Code,
5-25 is repealed.
5-26 SECTION 6. (a) The change in law made by Sections 2 and 4
6-1 of this Act applies only to a case that is pending or commences on
6-2 or after the effective date of this Act.
6-3 (b) Except as provided by Subsection (c) of this section,
6-4 the change in law made by Sections 1, 3, and 5 of this Act applies
6-5 only to the assignment of a judge or justice under Chapter 74 or
6-6 75, Government Code, made on or after the effective date of this
6-7 Act. An assignment made before the effective date of this Act is
6-8 governed by the law in effect at the time the assignment is made,
6-9 and that law is continued in effect for that purpose.
6-10 (c) The change in law made by Sections 1, 3, and 5 of this
6-11 Act does not apply to a person who immediately before the effective
6-12 date of this Act meets the eligibility requirements to be assigned
6-13 as a visiting judge by the chief justice of the supreme court under
6-14 Subsection (b), Section 74.003, or Chapter 75, Government Code, or
6-15 to be named on a list of retired and former judges under Subsection
6-16 (c), Section 74.055, Government Code, other than the certification
6-17 requirement under Subdivision (6), Subsection (c), Section 74.055,
6-18 Government Code, and the former law is continued in effect for
6-19 determining that person's eligibility for those purposes.
6-20 SECTION 7. This Act takes effect September 1, 1999.
6-21 SECTION 8. The importance of this legislation and the
6-22 crowded condition of the calendars in both houses create an
6-23 emergency and an imperative public necessity that the
6-24 constitutional rule requiring bills to be read on three several
6-25 days in each house be suspended, and this rule is hereby suspended.
1998-1999
Texas Judicial Council Annual Report