H.B. No. 3086

STATUTORY PROBATE COURTS: RECUSAL, 2-YEAR JURISDICTION WINDOW FOR SOME COURTS, AND LEGISLATIVE STUDY COMMITTEE

Effective Date: September 1, 1997

AN ACT

relating to statutory probate courts.

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

SECTION 1. Sections 25.0022(i), (n), and (p), Government Code, are amended to read as follows:

(i)  Judges may be assigned in the manner provided by this section to hold court in a statutory probate court, county court, or any statutory court exercising probate jurisdiction when:

(1)  the regular judge requests assignment of another judge to the judge's court;

(2)  the regular judge is absent, disabled, or disqualified for any reason;

(3)  the regular judge is present or is trying cases as authorized by the constitution and laws of this state;

(4)  the office of the regular judge is vacant; [or]

(5)  the presiding judge of an administrative judicial district requests the assignment of a statutory probate judge to hear a probate matter in a county court or statutory county court; or

(6)  a motion to recuse the regular judge of a statutory probate court has been filed.

(n)  A judge assigned under this section has the jurisdiction, powers, and duties given by Sections 5, [and] 5A, 606, and 607, Texas Probate Code, to the regular judge of the court to which assigned.

(p)  The daily compensation of a former or retired judge for purposes of this section is set at an amount equal to the daily compensation of a judge of a statutory probate court in the county in which the former or retired judge is assigned. A former or retired judge assigned to a county that does not have a statutory probate court shall be paid an amount equal to the daily compensation of a judge of a statutory probate court in the county where the assigned judge was last elected.

SECTION 2. Subchapter B, Chapter 25, Government Code, is amended by adding Section 25.00255 to read as follows:

Sec. 25.00255.  RECUSAL OR DISQUALIFICATION OF JUDGE. (a) A party in a hearing or trial in a statutory probate court may file with the clerk of the court a motion stating grounds for the recusal or disqualification of the judge. The grounds may include any disability of the judge to preside over the case.

(b)  A motion for the recusal or disqualification of a judge must:

(1)  be filed at least 10 days before the date of the hearing or trial, except as provided by Subsection (c);

(2)  be verified; and

(3)  state with particularity the alleged grounds for recusal or disqualification of the judge based on:

(A)  personal knowledge that is supported by admissible evidence; or

(B)  specifically stated grounds for belief of the allegations.

(c)  A motion for recusal or disqualification may be filed at the earliest practicable time before the beginning of the trial or other hearing if a judge is assigned to a case 10 or fewer days before the date set for a trial or hearing.

(d)  A party filing a motion for recusal or disqualification shall serve on all other parties or their counsel:

(1)  copies of the motion; and

(2)  notice that the movant expects the motion to be presented to the judge three days after the filing of the motion unless the judge orders otherwise.

(e)  A party may file with the clerk of the court a statement opposing or concurring with a motion for recusal or disqualification at any time before the motion is heard.

(f)  Before further proceedings in a case in which a motion for the recusal or disqualification of a judge has been filed, the judge shall:

(1)  recuse himself; or

(2)  request that the presiding judge of the statutory probate courts assign a judge to hear the motion.

(g)  A judge who recuses himself:

(1)  shall enter an order of recusal and request that the presiding judge of the statutory probate courts assign a judge to hear the motion for recusal or disqualification; and

(2)  may not take other action in the case except for good cause stated in the order in which the action is taken.

(h)  A judge who does not recuse himself:

(1)  shall forward to the presiding judge of the statutory probate courts, in either original form or certified copy, an order of referral, the motion for recusal or disqualification, and all opposing and concurring statements; and

(2)  may not take other action in the case during the time after the filing of the motion for recusal or disqualification and before a hearing on the motion, except for good cause stated in the order in which the action is taken.

(i)  After receiving a request under Subsection (g) or (h), the presiding judge of the statutory probate courts shall:

(1)  immediately set a hearing before himself or a judge designated by the presiding judge;

(2)  cause notice of the hearing to be given to all parties or their counsel to the case; and

(3)  make other orders, including orders for interim or ancillary relief, in the pending case.

(j)  After a statutory probate court has rendered the final judgment in a case, a party may appeal an order that denies a motion for recusal or disqualification as an abuse of the court's discretion. A party may not appeal an order that grants a motion for recusal or disqualification.

(k)  A party may file a motion for sanctions alleging that another party in the case filed a motion for the recusal or disqualification of a judge solely to delay the case and without sufficient cause. The presiding judge or the judge assigned by the presiding judge to hear the motion for recusal may approve a motion for sanctions authorized by Rule 215(2)(b), Texas Rules of Civil Procedure.

SECTION 3. Section 5, Texas Probate Code, is amended by adding Subsection (g) to read as follows:

(g)  Notwithstanding any other law, a statutory county court created under Chapter 25, Government Code, that has the jurisdiction of a statutory probate court on August 31, 1997, retains that jurisdiction after that date. This subsection expires August 31, 1999.

SECTION 4. (a) An interim committee is created to study the statutory probate system and to determine the appropriate jurisdiction of probate courts in this state.

(b)  The committee consists of six members, of whom:

(1)  three shall be appointed by the lieutenant governor from the members of the Senate Committee on Jurisprudence; and

(2)  three shall be appointed by the speaker of the house of representatives from the members of the House Committee on Judicial Affairs.

(c)  The presiding officers appointing the members of the committee shall each appoint a presiding officer from among the members appointed to the committee.

(d)  The committee shall convene at the call of the two presiding officers.

(e)  The committee shall study the statutory probate system of this state and the jurisdiction of the various courts with probate jurisdiction and shall make recommendations concerning the appropriate jurisdiction of those courts.

(f)  Not later than February 1, 1999, the committee shall report the committee's findings and recommendations to the lieutenant governor, the speaker of the house of representatives, and the members of the 76th Legislature.

(g)  Not later than the 15th day after the effective date of this Act, the lieutenant governor and the speaker of the house of representatives shall appoint the members of the interim committee created under this section.

SECTION 5. (a) This Act takes effect September 1, 1997.

(b)  Section 25.0022, Government Code, as amended by this Act, applies only to an assignment of a statutory probate court judge made on or after the effective date of this Act. An assignment made before that date is governed by the law as it existed on the date that assignment is made, and that law is continued in effect for that purpose.

(c)  Section 25.00255, Government Code, as added by this Act, applies only to a motion for recusal or disqualification of a statutory probate court judge filed on or after the effective date of this Act. A motion for recusal or disqualification of a statutory probate court judge filed before the effective date of this Act is governed by the law as it existed on the date the motion was filed, and that law is continued in effect for that purpose.

SECTION 6. The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended.


Courtesy of Glenn M. Karisch, Ikard & Golden, P. C., Austin, Texas. This page was last revised on May 28, 1997.