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18669 4 5 6 7 11 12 13 14 15 16 17 20 21 22 23 24 25 September 18669 4 5 6 7 * * ^ * * * * * * * * * * * * * * * * * 8 MEETING OF THE SUPREME COURT ADVISORY CONIlMITTEE 9 September 25, 2009 10 (FRIDAY SESSION) 11 12 * * * * * * * * * * * ^ * ^ * * * * * * 13 14 15 16 17 18 19 Taken before D'Lois L. Jones, Certified 20 Shorthand Reporter in Travis County for the State of 21 Texas, reported by machine shorthand method, on the 25th 22 day of September, 2009, between the hours of 9:00 a.m. and 23 5:01 p.m., at the Texas Association of Broadcasters, 502 24 E. 11th Street, Suite 200, Austin, Texas 78701. 25 b'Lois Jones, CSR (512) 751-2618 18670 1 INDEX OF VOTES 2 Votes taken by the Supreme Court Advisory Committee during 3 this session are reflected on the following pages: 4 Vote on Pa ge 5 Rule 145(a) and (b) 18701 6 Rule 145(b) 18711 Rule 749a 18727 7 Rule 749b 18747 Rule 523a 18762 8 Civil case cover sheets 18813 Civil case cover sheets 18839 9 Civil case cover sheets 18850 Civil case cover sheets 18851 10 11 Documents referenced in this session 12 09-19 NICS Improvement Act & HB 3352 13 09-20 Poverty Law - subcommittee follow-up report 9-23-09 14 09-21 Poverty Law - memo from Judge Lawrence 9-9-09 15 09-22 Civil case cover sheets - subcommitte report 9-7-9 16 09-23 Proposed/sample civil case cover sheets 17 09-24 9-9-09 memo from OCA, civil case cover sheets. 18 09-25 Judicial foreclosure revised proposed amendments to 19 Rules 735 and 736 20 09-26 Recusal - memo from Mr. Orsinger, 8-24-09. 21 09-27 Recusal - memo from Judge Peeples, 9-23-09 22 09-28 Recusal - Rule 18a strikeout version 23 09-29 Recusal - Rule 18a clean version 24 09-30 Recusal - Second region statistics 25 D' Lois Jones, CSR (512) 751-2618 i 18671 1 2 CHAIRMAN BABCOCK: Welcome, everybody. We 3 need to recognize on the record that Bobby Meadows was the 4 first person here today for the first time in 17 years, so 5 kudos to Bobby for being early for once. 6 HONORABLE STEPHEN YELENOSKY: He was still 7 on another time zone. 8 CHAIRMAN BABCOCK: He is on another time 9 zone. So we will go right into the agenda, which starts 10 as usual with a status report from Justice Hecht. 11 HONORABLE NATHAN HECHT: Well, the big news 12 of the Court is that Justice Brister has retired; and just 13 before he left, the Court had set a record serving 14 together longer -- the nine members, longer than any 15 nine-member court since September of 1945 when the Court 16 -- people changed the Court from three members to nine. 17 Justice Willett has the distinction of being the junior 18 judge the longest in history, so we gave him the Breyer 19 award the other night, but as Greg Coleman pointed out, 20 it's not really Breyer that has the record at the U.S. 21 Supreme Court. It's Justice Story back then. 22 CHAIRMAN BABCOCK: Back in the Story days. 23 HONORABLE NATHAN HECHT: Yes. And as usual, 24 the leading contenders to replace Justice Brister are 25 members of this committee, so steppingstone to glory, as D' Lois Jones, CSR (512) 751-2618 18672 1 usual. 2 We have -- we were working a lot on the 3 disciplinary rules for the Bar, and we've been working on 4 them since the winter, I guess, and it has been an 5 ennormous amount of work that Kennon and Justice Johnson 6 and two other committees as well as several other groups 7 following in the wake of the American Bar Association and 8 lots of interest around the country in changing the 9 disciplinary rules. So we expect to have a draft 10 completed and ready for comment we hope next month, and 11 we're doing everything we can to stay on that schedule. 12 So that has taken the Court just scores of hours through 13 the spring and the summer, but doesn't involve this 14 committee, but there will be a big slug of rules that will 15 be put out for comment before the referendum with the Bar 16 on them in the spring, and there are a lot of changes in 17 them, and no doubt they'll get a lot of interest in the 18 Bar. 19 We formed a task force, as required by 20 Senate Bill 1448, to look at orders requiring improvements 21 to property by landlords, and Justice Lawrence is heading 22 that up for us, and they have been at work, and we hope to 23 have something for the next meeting, and I believe the 24 statute requires that the rules take effect in January, so 25 as before when we've had that situation and we didn't have D'Lois Jones, CSR (512) 751-2618 18673 1 enough time between the end of the session and the 2 effective date to get them out for comment and wait on the 3 comment before putting them in place, this time as in 4 those other instances, we will work on them here, try to 5 get something final, go ahead and put it in place, then 6 get comments back and may change the rules in the spring 7 based on the comments. So as between the general 8 procedure that the Rules Enabling Act requires and any 9 specific deadlines that the Legislature imposes on rules 10 that they want in place, we honor the specific deadlines 11 over the more general ones and then try to honor the 12 general ones as time passes. So we think that will be 13 coming at the next meeting. 14 We did make one minor change in the Rules of 15 Disciplinary Procedure, which has to do with the 16 confidentiality of grievance proceedings. The rules 17 suggested and the chief disciplinary counsel has taken the 18 position in the past that even complainants are obliged to 19 keep confidential grievance proceedings, at least up to a 20 point in the proceeding, and we got a complaint from a 21 person involved in the process that that might be 22 inconsistent with the First Amendment, and we had a 23 decision from the Supreme Court of Louisiana that had 24 already reached that conclusion, so we asked the chief 25 disciplinary counsel to look at it, and she ultimately D' Lois Jones, CSR (512) 751-2618 18674 1 agreed as did the Bar, and so we've got that change 2 coming, and that should be out shortly. 3 MS. PETERSON: It's in an order, 4 Miscellaneous Docket No. 099150, effective date in January 5 2010. 6 HONORABLE NATHAN HECHT: So you'll see that, 7 and then finally we have a new referral, referrals, I 8 guess. The Court thought about the discussions that the 9 committee had last time about whether there should be a 10 rule on procedures for jury members to ask questions of 11 the judge during the deliberations, and the committee 12 talked about whether a rule was appropriate and to a less 13 degree what it should be; and thinking about that, the 14 Court said we should come up with a rule so that we can 15 see whether it would really be -- do good or not, because 16 there doesn't seem to be any practice, meaning much 17 guidance, on how questions get asked. So that's the 18 reaction to the discussion at the last meeting. 19 And then there is a procedure in Rule 5.1 of 20 the Federal Rules of Civil Procedure implementing Section 21 2403 of Title 28 of the U.S. Code, which requires notice 22 to Federal -- the Federal attorney general and state 23 attorneys general on questions -- cases involving 24 questions that call into -- involve the construction of 25 statutes or the constitutionality of statutes, and there D'Lois Jones, CSR (512) 751-2618 18675 1 is no similar procedure in state law, and so the attorney 2 general asked the Legislature to consider such a procedure 3 during the last session, and the Legislature declined, but 4 the attorney general still thinks it's a good idea for 5 that office to get notice when there are private lawsuits 6 calling statutes into question, and so the Court would 7 like the committee to look at that, and a lot of the work 8 has already been done in Rule 5.1 of the Federal rules, 9 and we would need to take a look also at the legislation 10 that was offered and the reactions to it during the last 11 session. 12 CHAIRMAN BABCOCK: And I guess on the first 13 question, Judge Christopher, I believe you led the charge, 14 or the retreat, however you characterize it, on the -- 15 HONORABLE TRACY CHRISTOPHER: I'd be glad to 16 work on it. 17 CHAIRMAN BABCOCK: Okay. That would be 18 great, and I think the notice to the attorney general 19 would fall in Richard Orsinger's committee, so will you 20 look at that? 21 MR. ORSINGER: Now that we've gotten all the 22 -- the rest of our work done that will be easy. 23 CHAIRMAN BABCOCK: Well, I don't think this 24 is going to be too hard because there's a Federal rule 25 that works pretty -- well, okay.
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