SEVENTY-NINTH LEGISLATURE, REGULAR SESSION
PROCEEDINGS
TWENTY-SECOND DAY — WEDNESDAY, FEBRUARY 23, 2005
The house met at 9:30 a.m. and was called to order by the speaker.
The roll of the house was called and a quorum was announced present (Recordi31).
Present — Mr. Speaker; Allen, A.; Allen, R.; Alonzo; Anchia; Anderson; Bailey; Baxter; Berman; Blake; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Casteel; Castro; Chavez; Chisum; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Escobar; Farabee; Farrar; Flores; Flynn; Frost; Gallego; Gattis; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Herrero; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jackson; Jones, D.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King, P.; King, T.; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Leibowitz; Luna; Madden; Martinez; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Merritt; Miller; Moreno, J.; Morrison; Mowery; Naishtat; Nixon; Noriega, M.; Oliveira; Olivo; Orr; Otto; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Strama; Straus; Swinford; Talton; Taylor; Thompson; Truitt; Turner; Uresti; Van Arsdale; Veasey; Villarreal; Vo; West; Wong; Woolley; Zedler.
Absent — Moreno, P.
The invocation was offered by Reverend Don Hickman, St. Matthias' Episcopal Church, Athens, as follows:
Most gracious God, the fountain of wisdom, whose will is good and whose law is truth. We humbly ask, as for all Texans, so especially for their representatives here assembled, that you would be pleased to guide and bless them in all their consultations that they may enact such laws to the safety, honor, and welfare of each and every one. That all things may be so ordered and settled by their endeavors upon your sure and certain foundation that peace and happiness, truth and justice, may be established for all generations to come. While being ever thankful for your innumerable blessings on this good land and State of Texas, we continually entreat you, in the name of Christ Jesus, our Lord and Savior. Amen.
The speaker recognized Representative B. Brown who led the house in the pledges of allegiance to the United States and Texas flags.
CAPITOL PHYSICIAN
The speaker recognized Representative Phillips who presented Dr. Enrique Muyshondt of Sherman as the "Doctor for the Day."
The house welcomed Dr. Muyshondt and thanked him for his participation in the Physician of the Day Program sponsored by the Texas Academy of Family Physicians.
REGULAR ORDER OF BUSINESS SUSPENDED
On motion of Representative Denny and by unanimous consent, the reading and referral of bills was postponed until just prior to adjournment.
(Speaker pro tempore in the chair)
COMMITTEE APPOINTED
The chair announced the appointment of the following committee to escort Chief Justice Wallace B. Jefferson to the speaker's rostrum: Representatives Hartnett, chair; Hughes; Gonzales; Riddle; Frost; Veasey; and P. King.
INTRODUCTION OF GUESTS
The chair recognized Representative Talton who introduced members of the Battleship Texas Foundation.
HR 475 - ADOPTED
(by Goodman)
Representative Goodman moved to suspend all necessary rules to take up and consider at this time HRi475.
The motion prevailed.
The following resolution was laid before the house:
HR 475, Recognizing February 23, 2005, as Children's Advocacy Centers of Texas Day at the State Capitol.
HR 475 was read and was adopted.
On motion of Representative Farabee, the names of all the members of the house were added to HRi475 as signers thereof.
MESSAGE FROM THE SENATE
A message from the senate was received at this time (see the addendum to the daily journal, Messages from the Senate, Message No. 1).
HR 281 - ADOPTED
(by Phillips)
Representative Phillips moved to suspend all necessary rules to take up and consider at this time HRi281.
The motion prevailed.
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The following resolution was laid before the house:
HR 281, Recognizing February 23, 2005, as Fannin County Day at the State Capitol.
HR 281 was read and was adopted.
(P. Moreno now present)
HCR 28 - ADOPTED
(by Baxter)
Representative Baxter moved to suspend all necessary rules to take up and consider at this time HCRi28.
The motion prevailed.
The following resolution was laid before the house:
HCR 28, Honoring Philip A. Berkebile on his retirement from the Texas Daily Newspaper Association.
HCR 28 was read and was adopted.
INTRODUCTION OF GUESTS
The chair recognized Representative Baxter who introduced Philip A. Berkebile and his wife Judy.
LEAVE OF ABSENCE GRANTED
The following member was granted leave of absence for the remainder of today because of important business in the district:
Farrar on motion of Rodriguez.
HR 177 - ADOPTED
(by P. King)
Representative P. King moved to suspend all necessary rules to take up and consider at this time HRi177.
The motion prevailed.
The following resolution was laid before the house:
HR 177, Recognizing February 23, 2005, as Wise County Day at the State Capitol.
HR 177 was read and was adopted.
HR 440 - ADOPTED
(by B. Brown)
Representative B. Brown moved to suspend all necessary rules to take up and consider at this time HRi440.
The motion prevailed.
The following resolution was laid before the house:
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HR 440, Recognizing February 23, 2005, as Athens Day at the State Capitol.
HR 440 was read and was adopted.
INTRODUCTION OF GUEST
The chair recognized Representative B. Brown who introduced Jerry King, mayor of Athens.
HR 474 - ADOPTED
(by Casteel)
Representative Casteel moved to suspend all necessary rules to take up and consider at this time HRi474.
The motion prevailed.
The following resolution was laid before the house:
HR 474, Honoring the Tax Assessor-Collectors Association of Texas on its Legislative Day, February 23, 2005.
HR 474 was adopted.
On motion of Representative Gonzalez Toureilles, the names of all the members of the house were added to HRi474 as signers thereof.
HR 493 - ADOPTED
(by Naishtat)
Representative Naishtat moved to suspend all necessary rules to take up and consider at this time HRi493.
The motion prevailed.
The following resolution was laid before the house:
HR 493, Honoring 12 Eagle Scouts from Boy Scout Troop 399 in Austin.
HR 493 was adopted.
HR 172 - ADOPTED
(by Gonzalez Toureilles)
Representative Gonzalez Toureilles moved to suspend all necessary rules to take up and consider at this time HRi172.
The motion prevailed.
The following resolution was laid before the house:
HR 172, Recognizing February 23, 2005, as Atascosa County Day at the State Capitol.
HR 172 was adopted.
HR 492 - ADOPTED
(by Coleman)
Representative Herrero moved to suspend all necessary rules to take up and consider at this time HRi492.
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The motion prevailed.
The following resolution was laid before the house:
HR 492, Recognizing February 23, 2005, as TEXAS Grant Day at the State Capitol and expressing appreciation for the program.
(Speaker in the chair)
HR 492 was adopted.
GENERAL STATE CALENDAR
HOUSE BILLS
SECOND READING
The following bills were laid before the house and read second time:
CSHB 160 ON SECOND READING
(by McCall)
CSHB 160, A bill to be entitled An Act relating to motor vehicles equipped with recording devices.
CSHBi160 was passed to engrossment. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. Members registering votes are as follows: Merritt recorded voting yes.)
RESOLUTIONS CALENDAR
The chair laid before the house the following resolutions on committee report:
HCR 59
(by Eiland, et al.)
HCR 59, Opposing the State Modernization and Regulatory Transparency (SMART) Act and any similar federal legislation that would interfere with the ability of state governments to regulate the business of insurance.
HCR 59 was adopted.
HOUSE AT EASE
At 10:27 a.m., the speaker announced that the house would stand at ease.
The speaker called the house to order at 11:15 a.m.
ADDRESS BY THE HONORABLE WALLACE B. JEFFERSON
(The House of Representatives and the Senate in Joint Session)
In accordance with the provisions of HCR 33, providing for a joint session of the senate and house of representatives for the purpose of hearing an address by the Honorable Wallace B. Jefferson, Chief Justice of the Supreme Court of Texas, Governor Rick Perry, Lieutenant Governor David Dewhurst, and the honorable senators were announced at the door of the house and were admitted.
The senators occupied seats arranged for them.
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Governor Rick Perry and Lieutenant Governor David Dewhurst were escorted to the speaker's rostrum.
The Honorable Wallace B. Jefferson, escorted by Senators Wentworth, chair; Gallegos; Averitt; Duncan; Harris; Hinojosa; and West, committee on part of the senate; and Representatives Hartnett, chair; Hughes; Gonzales; Riddle; Frost; Veasey; and P. King, committee on part of the house, were announced at the door of the house and, being admitted, were escorted to the speaker's rostrum.
Lieutenant Governor Dewhurst called the senate to order.
A quorum of the senate was announced present.
Speaker Craddick called the house of representatives to order.
A quorum of the house was announced present.
Speaker Craddick announced that the two houses were in joint session pursuant to HCR 33 for the purpose of hearing an address by the Honorable Wallace B. Jefferson, Chief Justice of the Supreme Court of Texas.
Speaker Craddick recognized members of the Supreme Court of Texas, presiding Judge Sharon Keller, members of the Court of Criminal Appeals of Texas, former Chief Justice Joe Greenhill, former Chief Justice Jack Pope, and Rhonda Jefferson, wife of Chief Justice Jefferson.
INTERPRETER FOR THE DEAF
The interpretation of the proceedings of the house was provided today by Delia Mott Merritt.
Speaker Craddick recognized Lieutenant Governor Dewhurst who introduced Chief Justice Jefferson to the joint session.
Chief Justice Jefferson presented the State of the Judiciary address, speaking as follows:
Governor Perry, Lieutenant Governor Dewhurst, Speaker Craddick, distinguished members of the senate and the house of representatives, ladies and gentlemen:
I am honored to appear before you for my inaugural "State of the Judiciary" address, one of the unique privileges afforded to me as chief justice. As you know, I was appointed by Governor Rick Perry to fill the vacancy left when Chief Justice Tom Phillips retired. Tom Phillips devoted his life to the court, and to the judiciary, and has received much-deserved praise for his service to Texas. I am sure I have the authority to order yet another plaque for this giant Texan. I choose instead to honor his example by speaking passionately about how the judiciary can best meet its responsibility to the people of Texas, to litigants in our courts, and to all who expect our halls of justice to be fair and impartial.
The state of our judiciary is strong; made strong by those, like Chief Justice Phillips, who have dedicated their lives to the great public enterprise of preserving our state and national constitutions and to protecting and defending laws that ensure we remain a government of the people. Some would say that the judiciary, lacking the power of the purse or the means of enforcement, is the
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Judicial Compensation
While strong, the judiciary currently faces a challenge that calls for legislative and executive action. The challenge is to fund the judiciary at a level sufficient to retain our most capable and experienced judges. Texas is losing judges at all levels of the judiciary due, at least in part, to salaries that have not kept pace with the times. Ask Judge Harvey Brown, Justice Murry Cohen, and my former colleague Craig Enoch if inadequate compensation played a role in their departures from the bench. And let us admit to ourselves that the judiciary suffers from the loss of their expertise, integrity, and experience. Teddy Roosevelt once said, "It is not befitting the dignity of the nation that its most honored public servants should be paid sums so small compared to what they would earn in private life that the performance of public service by them implies an exceedingly heavy pecuniary sacrifice."[1] Those words are as true today as they were in 1908. Texans deserve to walk into a Texas courtroom knowing that their cases will be heard by women and men of talent and experience, judges who have been recruited from among the most capable and successful lawyers. I want all Texans in every area of the state, and all litigants from outside the state who are properly before Texas courts, to have access to a judiciary that includes the most capable, the most dedicated, and the most knowledgeable and experienced.
All too often, our brightest and most experienced judges are leaving the bench, moving on to other opportunities outside the judiciary. It is no secret that judges double or triple their salaries by returning to the private sector. Even judges who choose some other form of public service—those who teach in our public law schools or who are honored with an appointment to the federal bench—increase their salary by 40 percent or more.
Our most distinguished jurists accept the call to judicial service not for monetary compensation but out of devotion to the rule of law. Judges in our state willingly accept a degree of personal financial sacrifice in exchange for that privilege. But if we ask judges to sacrifice too much, Texas will be left without the experienced judiciary that it surely deserves. Today, we are asking too much. I have not been alone in noting the emergence of a developing trend. Our most experienced judges are leaving the bench, replaced by others who, although dedicated and intelligent, are not equipped to handle those cases as efficiently as their experienced predecessors. Of course, we benefit from the recruitment of new judges, who add energy and innovation to the judiciary, but a large-scale replacement leads inevitably to uncertainty and inefficiency.
A transitory judiciary is inevitable (I am sad to say) if a judge can serve only as long as his or her savings permit. We do not want a judiciary in which judges serve with a view toward how their rulings will advance or detract from resumes they prepare in contemplation of a short tenure in office. This, I think, is what is meant by judicial independence—the conviction to rule courageously without regard to such personal considerations.
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Today, the salary of our state judges is less than even that of a first-year associate at a large firm and pales in comparison with other states. In the 1980s, Texas ranked 5th among the 50 states for judicial compensation at the courts of last resort. Today, Texas ranks 39th. Texas' intermediate court salaries rank 34th, and trial court salaries rank 28th.
An inexperienced judiciary takes a toll on the citizens of the state: it delays justice by prolonging child custody decisions, slowing criminal trials, and necessitating new trials. It also takes an economic toll: business leaders have reported, in survey after survey, that they are more likely to invest in states whose courts can offer judicial efficiency and consistency. In 2004, for example, a United States Chamber of Commerce national survey listed business leaders' top concerns about the legal environment.[2] They were most concerned about punitive damages, an area recently addressed by the Texas Legislature. Close behind, however, were concerns about "judicial competence" and "timeliness of decisions." These issues even outranked concerns about workers' compensation, product liability, and reform of the jury system. Because businesses invest in states with a strong judiciary, state support of the judiciary is an economically sound decision even in these days of tight budgets. A study performed by the Perryman Group, an economic research firm, reports that a relatively modest investment in judicial salaries will more than pay for itself through increased business activity and increased state revenues.
The goal of an efficient, effective judiciary was recognized from the earliest days of our nation and of our beloved Texas. Indeed, in his message to the Sixth Congress of the Republic of Texas, President Sam Houston said, "To maintain an able, honest, and enlightened judiciary should be the first object of every people." The framers of the United States Constitution also understood the importance of an efficient, experienced judiciary; they wrote into the Constitution a provision forbidding any reduction in federal judges' salaries.[3] Early on, the United States Supreme Court recognized that this constitutional provision was enacted, in its words, "not to benefit the judges, but ... to attract good and competent [judges] to the bench and to promote that independence of action and judgment which is essential to the maintenance of the guaranties, limitations, and pervading principles of the Constitution and to the administration of justice without respect to persons and with equal concern for the poor and the rich."[4]
John Marshall, a Revolutionary War hero and former Chief Justice of the United States, aptly noted that "[t]he Judicial Department comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all."[5] Two centuries later, the statement still rings true. The judiciary handles child custody cases, criminal prosecutions, contract matters, and much more. There is not a citizen in Texas whose life has not, in some way, been touched by the judicial system.
I must pause here to recognize the progress on judicial compensation made during this legislative session. In fact, even before the session began, and before my appointment as chief, Governor Perry expressed his concern that the current compensation structure for judges impedes his ability to recruit men and women of obvious merit when vacancies arise. The governor's concern has recently been
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There is work to be done reconciling various proposals for reform, but Texans do not shirk from hard work. We have had remarkable success in attracting good and competent men and women to the bench and, with your support, will continue to do so long into the future.
Technology
Our citizens need more than good judges. They also need open, accessible courts that make the most cost-effective use of tax dollars. In this regard, the judiciary has harnessed the power of technology to operate the court system more efficiently and to ensure that the courts are open to people all over Texas. Our court, for example, has placed legal briefs online and made them accessible on the web. Last fall, we also began making audio recordings of oral arguments available online on the very day of argument. There was a time in a former era when our citizens had no choice but to travel to Austin to view the court's proceedings. But today our schoolchildren, the media, and our public can listen to actual courtroom dialogue and decide for themselves the merits of opposing arguments on issues of great statewide import. In the next biennium, we would like to take another step forward and provide real-time video webcasting of oral arguments, just as these proceedings are, right now, streaming across some computer screen in the hinterlands. Such a step would cost very little, but would have a huge benefit in ensuring that court proceedings are open and visible to all who are interested, wherever they may live.
The judicial branch has worked to ensure that technology doesn't just help people view court proceedings—it also helps them participate. In 2004, the Judicial Committee on Information Technology worked with TexasOnline to implement electronic court filing in Texas. Eight counties—Bexar, Dallas, El Paso, Fort Bend, Guadalupe, Hidalgo, Tarrant, and Upton—successfully implemented e-filing by the end of fiscal year 2004. More than 40 other counties are preparing to join the e-filing system. E-filing allows parties to file pleadings with courts more quickly and easily. The reduction in paperwork also leads to a reduction in costs, which allows the courts to efficiently focus resources where they are most needed.
Electronic access to court records advances our state's goal of maintaining open government. We must be careful, however, to ensure that our citizens' right to privacy remains protected. Case-file documents, unless sealed or otherwise
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Indigent Defense
A third challenge facing the judiciary—and indeed confronting all three branches of government—is the need to continue the progress we have made in the criminal justice system. Texas has increasingly recognized victims' rights, ensuring that crime victims have a voice in the criminal justice system. Of course, it is vital not only that we convict the guilty, but that we acquit the innocent. Error, unfortunately, is a human affliction. The advance of science, in particular DNA testing, confirms that frailty but also promises a method to correct our mistakes. Judge Barbara Hervey and the Court of Criminal Appeals have worked hard to encourage the investigation of innocence claims; these projects are worthy of our support, and, during the upcoming biennium, I expect that the three branches will continue to cooperate to ensure that those who are truly innocent will be freed. Any wrongful conviction is a tragedy because it leaves the guilty unpunished and condemns the innocent to prison or death.
In addition, the Task Force on Indigent Defense, under the inspired leadership of Presiding Judge Sharon Keller, has worked diligently to increase meaningful interaction between state and local governments in providing representation to indigent defendants and to meet and exceed the mandates of the Texas Fair Defense Act. Statewide data shows that since the legislature adopted the act in 2001, nearly 100,000 more persons are receiving court appointed counsel, which represents an increase of almost 40 percent.
Last year, the Task Force administered grant programs totaling $12 million, benefiting 244 counties. This year the Task Force has awarded over $13 million in grants. The highlights of this grant cycle include awards to Dallas and Limestone counties for mental health defender services and Bexar and Hidalgo counties to establish public defender offices. The creation of these public defender offices mark the first large scale offices established in Texas since the late 1980s.
Access to Justice
Finally, a fourth challenge facing our judiciary is the need to ensure that all of our citizens, rich and poor, have access to our courts. Even in the face of our human imperfections, we should aspire to the imperative of Amos, to "Let justice flow down as the waters and righteousness as a mighty stream."[13] In that spirit, we will continue the progress made in the last decade to support the Texas Access
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The court has created a Protective Order Task Force in response to studies showing that access to the judicial system by victims of domestic abuse is often limited. The task force, under the leadership of Stewart Gagnon of Houston, developed a protective-order kit for use by Texans who cannot afford a lawyer or who may not otherwise have access to the courts. The court intends to launch the kit in April, during National Crime Victims' Rights Week, with the help of First Lady Anita Perry and Attorney General Greg Abbott.
Conclusion
Let me close with a vision for the judiciary. I believe we can achieve a fully funded judicial branch of government, one that reflects the wisdom and experience of those who have chosen to serve. I want a strong relationship with the legislature, one that respects the legislature's prerogative to set policy but entrusts the judiciary with responsibility to construe legislation fairly and impartially. I see our wood-paneled courthouses transformed into virtual courtrooms with unlimited seating and accountability. I am confident that, with your help, the ability to seek justice, in a criminal or civil case, for the rich or the poor, will be preserved as a cornerstone of our jurisprudence.
[1] Eighth Annual Message, December 8, 1908.
[2]2004 U.S. Chamber of Commerce State Liability Systems Ranking Study, March 3, 2004, available at http://www.instituteforlegalreform.org/pdfs/2004%20full%20report.pdf.
[3] U.S. CONST. art III, Sec. 1.
[4] O'Donoghue v. United States, 289 U.S. 516, 533 (1933)
[5] Id. (quoting DEBATES OF THE VIRGINIA STATE CONVENTION OF 1829-1830, pp. 616, 619)
[6] Governor Rick Perry, Proposed 2006-2007 State Budget, January 2005.
[7] Comptroller Carole Keeton Strayhorn, Special Report on Judicial Pay, December 2004.
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[8] SB 368
[9] HB 1180
[10] HB 1158
[11] HB 1001
[12] http://www.supreme.courts.state.tx.us/records_access_hearing_6.16.04.htm
[13] Amos 5:24.
REMARKS ORDERED PRINTED
Representative Hartnett and Senator Wentworth moved to print remarks by Chief Justice Jefferson.
The motion prevailed.
SENATE ADJOURNMENT
At 11:42 a.m., Lieutenant Governor Dewhurst stated that the business of the joint session had been accomplished and that the senate would, in accordance with a previous motion, stand adjourned until 10 a.m. tomorrow.
HOUSE AT EASE
At 11:43 a.m., the speaker announced that the house would stand at ease pending the departure of guests.
The speaker called the house to order at 11:52 a.m.
ADJOURNMENT
Representative R. Cook moved that the house adjourn until 10 a.m. tomorrow in memory of Army Specialist Clint Gertson of Eagle Lake who was killed in the line of duty in Mosul, Iraq.
The motion prevailed.
The house accordingly, at 11:52 a.m., adjourned until 10 a.m. tomorrow.
AAAAAADDENDUMAAAAA
MESSAGES FROM THE SENATE
The following messages from the senate were today received by the house:
Message No. 1
MESSAGE FROM THE SENATE
SENATE CHAMBER
Austin, Texas
Tuesday, February 22, 2005
The Honorable Speaker of the House
House Chamber
Austin, Texas
434 79th LEGISLATURE — REGULAR SESSION
Mr. Speaker:
I am directed by the senate to inform the house that the senate has taken the following action:
THE SENATE HAS PASSED THE FOLLOWING MEASURES:
| HCR 65 | Giddings | SPONSOR: Ellis |
Designating February 2005 as Black History Month in Texas.
| HCR 72 | Hopson | SPONSOR: Eltife |
Designating February 22, 2005, as Panola County Day at the Capitol.
Respectfully,
Patsy Spaw
Secretary of the Senate
AAAAAAPPENDIXAAAAA
STANDING COMMITTEE REPORTS
Favorable reports have been filed by committees as follows:
February 22
Agriculture and Livestock - HBi774
SENT TO THE GOVERNOR
February 22 - HCRi50, HCRi58, HCRi68
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