David Slayton 2015-08-25 11:19:30
The 84th Legislature produced one of the most active sessions for the Texas Judiciary, with more than 1,500 filed bills affecting the branch. While just over 300 of those became law, several will have significant impact upon the function of the courts. This includes multiple bills requested by the policy-making Texas Judicial Council.1 The following is a brief description of some new legislation that will directly affect the judiciary and attorneys who practice in Texas courts. All bills are effective September 1, 2015, unless otherwise indicated. A full legislative report published by the Texas Judicial Council is available at txcourts.gov/media/1047353/84th-tjc-legislative-report.pdf. Truancy Reform In his 2015 State of the Judiciary speech, Texas Supreme Court Chief Justice Nathan L. Hecht recognized that “playing hooky is bad.” “But,” he asked, “is it criminal?” 2 Hecht called for the Texas Legislature to decriminalize a student’s failure to attend school while still ensuring accountability to attendance laws. The Legislature passed such a reform in HB 2398, which repeals both the criminal offense and the juvenile offense of truancy and replaces these with a new civil offense of truant conduct. Judges hearing truant conduct cases are given similar remedies to existing ones in current law, except for criminal convictions and fines. A new Title 3A of the Texas Family Code sets out the procedural process for these cases and establishes a $50 fee to assist with funding. The law also requires courts to expunge conviction and dismissal records that occurred before the September 1, 2015, effective date, which is estimated to include more than one million cases from 1995 to 2015. Improving the Guardianship System Texas continues to see an increase in the number of residents who are over the age of 65. This “silver tsunami” is expected to triple the state’s senior population by 2050.3 With this already impacting the Texas courts,4 the Texas Judicial Council studied and recommended several reforms to the guardianship system. HB 39 enacts these reforms, focusing on five key areas: Exploring alternatives to guardianship and supports and services. The law gathers a list of all statutory alternatives to guardianship in the Texas Estates Code provisions on guardianship, making it easier for attorneys, judges, and other interested parties to explore those options. The law requires that those involved in a guardianship proceeding certify that all alternatives to guardianship have been considered prior to the filing and granting of a guardianship. Lastly, it requires that judges, attorneys, and applicants consider whether supports and services could be used to prevent the need for a guardianship or limit the guardianship scope. Ensuring judges have access to information about potential improvements in ward capacity. When proposed wards are evaluated by physicians, there is no requirement in current law that the physician report whether the proposed ward’s condition might improve and in what period of time that improvement might occur. HB 39 requires the physician’s certificate to include this information so that an individual might be reevaluated to determine if improvement terminates the need for continued guardianship. Limiting the ability of guardians to move wards to more restrictive living facilities. HB 39 requires judges and attorneys to consider the proposed ward’s ability to retain decision-making control over his or her personal residence. It also requires guardians to provide notice to the court and other interested parties before moving the ward to a more restrictive living facility. The court may schedule a hearing on the placement prior to the move or upon an objection by one of the interested parties. There was previously no requirement to take these actions. Establishing a framework for supported decision-making agreements. Supported decision-making agreements are an alternative to guardianship whereby a person chooses an associate to help make decisions in the case that the person’s capacity is limited. HB 39 and SB 1881 (effective June 19, 2015) establish a statutory framework for these agreements. Improving attorney education in guardianship. HB 39 requires the applicant’s attorney to be certified as having successfully completed a course in guardianship law. This requirement has previously existed for court-appointed attorneys in a guardianship proceeding. The training is also increased to include an hour on alternatives to guardianship and supports and services. New Courts The Legislature passed SB 1139 to form seven new district courts (the 440th, 446th, 451st, 469th, 470th, 505th, and 507th) and five county courts at law (No. 7 of Collin County, No. 5 of Fort Bend County, criminal court No. 16 of Harris County, and No. 4 and No. 5 of Cameron County) with varying creation dates. As part of the creation of the 451st District Court, SB 1139 abolished the County Court at Law of Kendall County. Three-judge court for certain matters. SB 455 provides for the convening of a special three-judge district court for a suit regarding public school finance or redistricting matters filed against the state, a state officer, or a state agency. The attorney general is authorized to request that the chief justice of the Texas Supreme Court convene the special court. The law sets out the parameters of the selection of the judges, the venue, and other procedural matters. The Supreme Court is authorized to adopt rules for the operation and procedures of the court. Grand Jury Selection Reform HB 2150 makes several amendments to the Texas Code of Criminal Procedure and Government Code regarding the selection of grand jurors. In particular, the law eliminates the position of jury commissioner for the selection and impaneling of a grand jury and replaces it with a random selection system similar to that for petit juries. Creation of Forms in Probate and Landlord-Tenant Matters In an effort to assist litigants and attorneys practicing in probate and landlord-tenant matters, SB 478 and SB 512 require the Texas Supreme Court to promulgate certain forms and instructions. Once approved, court clerks are required to make the forms available in English and Spanish. Expansion of Eligibility for Nondisclosure Orders SB 1902 expands the types of criminal cases eligible for an order of nondisclosure and simplifies the process for certain types of cases. Individuals placed on deferred adjudication for most misdemeanor offenses would be eligible to obtain an order of nondisclosure without filing a petition (currently a separate civil case). The individual would still be required to pay a $28 fee for the order. In cases where the defendant is eligible for this type of an order of nondisclosure, the judge would be required to issue it upon the defendant’s discharge and dismissal from the deferred adjudication case. In certain misdemeanor cases and all felony cases, a defendant would still be required to file a civil petition and pay the required fees to obtain an order of nondisclosure. Individuals convicted of certain misdemeanors would be eligible to file a petition for an order of nondisclosure under certain conditions. This type of proceeding would require the filing of a new civil case and payment of the civil filing fees. Remote Interpreters Authorized in All Criminal Proceedings SB 1139 clarifies existing law in the Code of Criminal Procedure that telephonic interpreters can be used in all criminal proceedings, regardless of in which court the proceeding is filed. Electronic Notices 1116 authorizes judges and court clerks to send notices or documents required by civil or criminal statutes by email using the address registered with the electronic filing system or provided by the person. Notices requiring proof of delivery are not included. Appointments and Fee Reporting SB 1876 requires each court in a county of 25,000 or more to establish and maintain lists of attorneys ad litem, guardians ad litem, guardians, and mediators. The courts are required to appoint from the lists using a rotation system unless the parties agree on and the court approves the appointment. A court can deviate from the list in complex matters if certain factors are met. Courts are required to annually post each list at the courthouse and on the court’s website. SB 1369 requires court clerks, beginning in September 2016, to submit a report monthly to the Office of Court Administration indicating certain information about the payment of fees to attorneys ad litem, guardians ad litem, guardians, mediators, and competency evaluators. Courts that fail to do this would be ineligible for grant money awarded by the state or a state agency. Judicial Bypass HB 3994, effective January 1, 2016, changes the requirements related to the notice of and consent to an abortion for a minor. The new law prohibits courts from appointing the same individual as the minor’s attorney ad litem and guardian ad litem. The venue requirements are modified to place restrictions on where the minor may file the petition. The standard of proof is increased from preponderance of the evidence to clear and convincing evidence with the court required to consider additional factors in making the determination. Courts must decide the cases within five business days (increased from two), and the law removes the automatic granting of the petition when that time frame is exceeded. Indigent Defense and Civil Legal Aid Funding The Legislature increased funding to the Texas Indigent Defense Commission by $7.5 million over the current biennium to assist in “closing the gap” between state and local indigent defense funding and in expanding the Regional Public Defender for Capital Cases. The state increased funding for civil legal aid by $13 million, of which $10 million will be used to provide basic civil legal services to victims of sexual assault and $3 million will be used to provide legal assistance to veterans and their families. HB 1079 expanded the types of fines, fees, and other collections that can be allocated to the basic civil legal services fund. Exoneration Review Commission HB 48, effective June 1, 2015, established the Timothy Cole Exoneration Review Commission under the auspices of the Texas Judicial Council to review and examine Texas cases in which an innocent defendant was convicted and subsequently exonerated after January 1, 2010. The commission must submit its report by December 1, 2016, to the governor, Legislature, and the Texas Judicial Council, at which time the commission is abolished. Notes 1). Tex. Government Code Ch. 71. 2). Nathan Hecht, Chief Justice, Texas Supreme Court, The State of the Judiciary in Texas, Address Before the 84th Texas Legislature (Feb. 18, 2015), in Texas Bar Journal, April 2015, 282-285. 3). Lloyd B. Potter & Nazrul Hoque, Office of the State Demographer, Texas Population Projections, 2010 to 2050 (November 2014). http://osd.state.tx.us/Publications/2014-11_ProjectionBrief.pdf. 4). The number of active guardianships in the state have increased by 60 percent in the past four years.
Published by State Bar of Texas. View All Articles.
This page can be found at http://mydigimag.rrd.com/article/The+Texas+Judiciary/2252592/270329/article.html.