81R2571 EAH-F
	By: Flynn	H.B. No. 1165

	A BILL TO BE ENTITLED
	AN ACT
	relating to the Texas Code of Military Justice.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Section 432.001, Government Code, is amended by
	amending Subdivisions (3), (12), and (16) and adding Subdivisions
	(4-a) and (4-b) to read as follows:
	(3)  "Commanding officer" includes commissioned
	officers and warrant officers of the state military forces who
	either have been lawfully appointed to command by a superior
	authority or have lawfully assumed command [, as applicable].
	(4-a)  "Day" means calendar day and is not synonymous
	with "unit training assembly" or any other accounting for training.
	(4-b)  "Duty" means any presence or performance of any
	service with or on behalf of the state military forces.
	(12)  "Officer" means a commissioned or warrant officer
	of the state military forces.
	(16)  "State military forces" means the National Guard
	of this state, as defined in Title 32 [U.S.C. Sections 101(3)],
	United States Code [(4) and (6)], and other militia or military
	forces organized under the laws of this state.
	SECTION 2.  Section 432.002, Government Code, is amended to
	read as follows:
	Sec. 432.002.  PERSONS SUBJECT TO CHAPTER. This chapter
	applies to all members of the state military forces who are not in
	federal service under Title 10, United States Code.
	SECTION 3.  Subchapter A, Chapter 432, Government Code, is
	amended by adding Section 432.006 to read as follows:
	Sec. 432.006.  PUNISHMENT MEASURED IN DAYS. Any punishment
	authorized under this chapter is measured in terms of calendar
	days.
	SECTION 4.  Section 432.014, Government Code, is amended to
	read as follows:
	Sec. 432.014.  RESTRAINT OF PERSONS CHARGED WITH OFFENSES.
	A person subject to this chapter charged with an offense under this
	chapter shall be ordered into arrest or confinement, as
	circumstances may require, but if charged with only an offense
	normally tried by a summary court-martial, the person may not
	ordinarily be placed in confinement. If a person subject to this
	chapter is placed in arrest or confinement before trial, immediate
	steps shall be taken to inform him of the specific wrong of which he
	is accused and to try him or to dismiss the charges and release him.
	A person confined other than in a guardhouse, whether before,
	during, or after trial by a military court, shall be confined in a
	civilian [civil] jail.
	SECTION 5.  Section 432.021, Government Code, is amended to
	read as follows:
	Sec. 432.021.  COMMANDING OFFICER'S NONJUDICIAL PUNISHMENT.
	(a)  Under regulations that the adjutant general [governor] may
	prescribe, any commanding officer [limitations] may impose a
	disciplinary [be placed on the powers granted by this section with
	respect to the kind and amount of] punishment for an offense without
	the intervention of a court-martial under [authorized, the
	categories of commanding officers and warrant officers exercising
	command authorized to exercise those powers, the applicability of]
	this section [to an accused who demands trial by court-martial, and
	the kinds of courts-martial to which the case may be referred on
	such a demand]. However, [except in the case of a member attached
	to or embarked in a vessel,] punishment may not be imposed on a
	member of the state military forces under this section if the
	member, before the imposition of the punishment, has demanded trial
	by court-martial in lieu of [the] punishment under this section.
	Only [Under similar regulations, rules may be prescribed with
	respect to the suspension of punishments authorized by this
	section. If authorized by regulations of] the governor, the
	adjutant general, [the governor] or an officer of a general or flag
	rank in command may delegate the [governor's or officer's] powers
	under this section to a principal assistant who is a member of the
	state military forces.
	(b)  Any person facing discipline under this section [If
	disciplinary punishment other than admonition or reprimand is to be
	imposed, the accused] shall be afforded the opportunity to consult
	with [be represented by] defense counsel having the qualifications
	prescribed under Section 432.046(b), if such a counsel is
	reasonably available. Otherwise, the accused shall be afforded the
	opportunity to be represented by any available commissioned officer
	of the accused's [his] choice. The accused may also be represented
	by [employ] civilian counsel [of his own choosing] at no [his own]
	expense to the state. In all proceedings, the accused is allowed
	three duty days, or longer on written justification, to reply to the
	notification of intent to impose punishment under this section.
	(c)  A [(b)  Subject to Subsection (a), a] commanding
	officer may [, in addition to or in lieu of admonition or
	reprimand,] impose on an enlisted member of the officer's [one or
	more of the following disciplinary punishments for minor offenses
	without the intervention of a court-martial:
	[(1)  on officers of his] command:
	(1)  a reprimand;
	(2)  a fine of not more than two days' pay;
	(3) [(A)]  restriction to certain specified limits,
	with or without suspension from duty, for not more than 60 [30]
	days; or
	(4) [(B)     if imposed by the governor, or an officer of
	general rank in command:
	[(i)     arrest in quarters for not more than 30
	days;
	[(ii)     forfeiture of not more than half of
	one month's pay a month for two months or a fine of not more than
	$75;
	[(iii)     restriction to certain specified
	limits, with or without suspension from duty, for not more than 60
	days; or
	[(iv)     detention of not more than half of one
	month's pay a month for three months; and
	[(2)  on other personnel of his command:
	[(A)     if imposed on a person attached to or
	embarked in a vessel, confinement for not more than three days;
	[(B)     correctional custody for not more than seven
	days;
	[(C)     forfeiture of not more than seven days' pay
	or a fine of not more than $50;
	[(D)     reduction of not more than two pay grades,
	if imposed by a commanding officer of the grade of colonel or above,
	or reduction of not more than one pay grade, if imposed by a
	commanding officer of a grade lower than colonel;
	[(E)     extra duties including fatigue or other
	duties, for not more than 30 days, which need not be consecutive,
	and for not more than two hours a day, holidays included;
	[(F)     restriction to certain specified limits,
	with or without suspension from duty for not more than 14 days;
	[(G)  detention of not more than 14 days' pay; or
	[(H)     if imposed by an officer of the grade of
	major or above:
	[(i)     the punishment authorized under
	Subsection (b)(2)(A);
	[(ii)     correctional custody for not more
	than 30 days;
	[(iii)     forfeiture of not more than half of
	one month's pay a month for two months or a fine of not more than
	$100;
	[(iv)]  reduction to the next inferior
	[lowest or any intermediate] pay grade for an enlisted member E-4 or
	below.
	(c-1)  Any commanding officer of the grade of O-4 or above
	may impose on an enlisted member of the officer's command:
	(1)  a reprimand;
	(2)  a fine of not more than three days' pay;
	(3)  restriction to certain specified limits, with or
	without suspension from duty, for not more than 60 days; or
	(4)  reduction to the lowest or any intermediate pay
	grade for an enlisted member E-4 or below, or reduction to the next
	inferior pay grade for an enlisted member in a pay grade of E-5.
	(c-2)  Any commanding officer of the grade of O-6 or above
	may impose on an enlisted member of the officer's command:
	(1)  a reprimand;
	(2)  a fine of not more than four days' pay;
	(3)  restriction to certain specified limits, with or
	without suspension from duty, for not more than 60 days; or
	(4)  reduction to the lowest or any intermediate pay
	grade for an enlisted member E-4 or below, or reduction of not more
	than two pay grades for an enlisted member in a pay grade of E-5 or
	E-6.
	(c-3)  The governor, the adjutant general, a component
	commander, an officer exercising general court-martial convening
	authority, or an officer of a general or flag rank in command may
	impose on an enlisted member in a pay grade of E-7 of the officer's
	command:
	(1)  a reprimand;
	(2)  a fine of not more than four days' pay;
	(3)  restriction to certain specified limits, with or
	without suspension from duty, for not more than 60 days; or
	(4)  reduction of not more than two pay grades.
	(c-4)  The governor, the adjutant general, or a component
	commander may impose:
	(1)  on an enlisted member in a pay grade of E-8 or E-9
	of the officer's command:
	(A)  a reprimand;
	(B)  a fine of not more than four days' pay;
	(C)  restriction to certain specified limits,
	with or without suspension from duty, for not more than 60 days; or
	(D)  reduction of not more than two pay grades; or
	(2)  on an officer of the officer's command:
	(A)  a reprimand;
	(B)  a fine of not more than four days' pay;
	(C)  restriction to certain specified limits,
	with or without suspension from duty, for not more than 60 days; or
	(D)  reduction to the next inferior pay grade. [,
	if the grade from which demoted is within the promotion authority of
	the officer imposing the reduction or an officer subordinate to the
	one who imposes the reduction, but an enlisted member in a pay grade
	above E-4 may not be reduced more than two pay grades;
	[(v)     extra duties, including fatigue or
	other duties, for not more than 45 days which need not be
	consecutive and for not more than two hours a day, holidays
	included;
	[(vi)     restriction to certain specified
	limits with or without suspension from duty, for not more than 60
	days; or
	[(vii)     detention of not more than half of
	one month's pay a month for three months.
	[(c)     Detention of pay shall be for a stated period of not
	more than one year, but if the offender's term of service expires
	earlier, the detention shall terminate on that expiration. No two
	or more of the punishments of arrest in quarters, correctional
	custody, extra duties, and restriction may be combined to run
	consecutively in the maximum amount imposable for each. If any of
	those punishments are combined to run consecutively, there must be
	an apportionment. In addition, fine or forfeiture of pay may not be
	combined with detention of pay without an apportionment. For the
	purposes of this section "correctional custody" means the physical
	restraint of a person during duty or nonduty hours and may include
	extra duties, fatigue duties, or hard labor. If practicable,
	correctional custody may not be required to be served in immediate
	association with persons awaiting trial or held in confinement
	pursuant to trial by courts-martial.
	[(d)     An officer in charge may impose on enlisted members
	assigned to the unit of which he is in charge those of the
	punishments authorized under Subsections (b)(2)(A)-(G) that the
	governor specifically prescribes by regulation.]
	(e)  The officer who imposes the punishment [authorized in
	Subsection (b)] or the officer's [his] successor in command may at
	any time suspend, set aside, mitigate, reduce, or remit
	[probationally] any part or amount of the [unexecuted] punishment
	[imposed and may suspend probationally a reduction in grade or fine
	or forfeiture imposed under Subsection (b), whether or not
	executed. In addition, the officer may, at any time, remit or
	mitigate any part or amount of the unexecuted punishment imposed
	and may set aside in whole or in part the punishment, whether
	executed or unexecuted,] and restore all rights, privileges, and
	property affected. The [officer may also mitigate reduction in
	grade to fine or forfeiture or detention of pay. If mitigating
	arrest in quarters to restriction or extra duties to restriction,
	the] mitigated punishment may not be for a greater amount [period]
	than the punishment mitigated. When [If mitigating forfeiture of
	pay to detention of pay, the amount of the detention may not be
	greater than the amount of the forfeiture. If] mitigating
	reduction in grade to a fine, [forfeiture, or detention of pay,] the
	amount of the fine [, forfeiture, or detention] may not be greater
	than the amount that could have been imposed initially under this
	section by the officer who imposed the punishment mitigated.
	(f)  A person punished under this section who considers the
	punishment unjust or disproportionate to the offense may appeal to
	the next superior authority through the proper channel within 15
	days after the punishment is either announced or sent to the
	accused, as the commander may determine. The appeal shall be
	promptly forwarded and decided, but the person punished may in the
	interim [meantime] be required to undergo the punishment adjudged.
	The superior authority may exercise the same powers with respect to
	the punishment imposed as may be exercised under Subsection (e) by
	the officer who imposed the punishment. Before acting on an appeal
	from a punishment [of arrest in quarters for more than seven days,
	correctional custody for more than seven days, forfeiture of more
	than seven days' pay, reduction of one or more pay grades from the
	fourth or a higher pay grade, extra duties for more than 14 days,
	restriction of more than 14 days' pay, or detention of more than 14
	days' pay], the authority that [who] is to act on the appeal may
	[shall] refer the case to a judge advocate [or legal officer of the
	state military forces] for consideration and advice [, and may
	similarly refer the case on appeal from a punishment imposed under
	Subsection (b)].
	(g)  The imposition and enforcement of disciplinary
	punishment under this section for an act or omission is not a bar to
	trial by court-martial or a civilian court for a serious crime or
	offense growing out of the same act or omission and not properly
	punishable under this section, but the fact that a disciplinary
	punishment has been enforced may be shown by the accused on trial
	and, when shown, shall be considered in determining the measure of
	punishment to be adjudged in the event of a finding of guilty.
	(h)  The adjutant general [governor] by regulation may
	prescribe the form of records to be kept of proceedings under this
	section and may require that certain categories of those
	proceedings be in writing.
	[(i)     A commanding officer may delegate authority to make a
	reduction in pay grade under Subsection (b)(2)(D) to the commanding
	officer's executive officer, chief of staff, or vice commander.]
	SECTION 6.  Section 432.031, Government Code, is amended to
	read as follows:
	Sec. 432.031.  COURTS-MARTIAL CLASSIFIED. The three kinds
	of courts-martial in each of the state military forces are:
	(1)  general court-martial, consisting of:
	(A)  a military judge and not fewer than five
	members; or
	(B)  only a military judge, if before the court is
	assembled the accused, knowing the identity of the military judge
	and after consultation with defense counsel, requests in writing a
	court composed only of a military judge and the military judge
	approves;
	(2)  special court-martial, consisting of:
	(A)  [not fewer than three members; or
	[(B)]  a military judge and not fewer than three
	members; or
	(B) [(C)]  only a military judge, if one has been
	detailed to the court, and the accused under the same conditions as
	those prescribed in Subdivision (1)(B) requests; and
	(3)  summary court-martial, consisting of one officer,
	who must be a military judge or an attorney licensed to practice law
	in this state.
	SECTION 7.  Section 432.032, Government Code, is amended to
	read as follows:
	Sec. 432.032.  JURISDICTION OF COURT-MARTIAL IN GENERAL.
	Each force of the state military forces has court-martial
	jurisdiction over all members of the force who are [persons]
	subject to this chapter. Additionally, the Texas Army Guard and the
	Texas Air Guard shall have court-martial jurisdiction over all
	members subject to this chapter. The exercise of jurisdiction by
	one force over personnel of another force shall be in accordance
	with regulations prescribed by the governor.
	SECTION 8.  Section 432.033(a), Government Code, is amended
	to read as follows:
	(a)  Subject to Section 432.032, a general court-martial has
	jurisdiction to try a person subject to this chapter for any offense
	made punishable by this chapter and may, under limitations the
	governor prescribes, adjudge any of the following punishments:
	(1)  a fine of not more than $10,000;
	(2) [$1,000 or] confinement for not more than five years
	[360 days];
	(3) [(2)]  forfeiture of pay and allowances;
	(4) [(3)]  reprimand;
	(5) [(4)]  dismissal or dishonorable discharge;
	[(5)     reduction of a noncommissioned officer to the
	ranks;] or
	(6)  any combination of those punishments.
	SECTION 9.  Section 432.034(a), Government Code, is amended
	to read as follows:
	(a)  Subject to Section 432.032, a special court-martial has
	jurisdiction to try a person subject to this chapter, except a
	commissioned officer, for any offense [for which he may be
	punished] under this chapter.  A special court-martial has the same
	powers of punishment as a general court-martial, except that a
	special court-martial may not impose more than a $4,000 [$500] fine
	and [or] confinement of more than one year [180 days] for a single
	offense.
	SECTION 10.  Sections 432.035(a) and (c), Government Code,
	are amended to read as follows:
	(a)  Subject to Section 432.032, a summary court-martial has
	jurisdiction to try persons subject to this chapter, except
	officers, for any offense under [made punishable by] this chapter.
	(c)  A summary court-martial may sentence a person to pay a
	fine of not more than $1,000, [$200 or] confinement for not more
	than 180 [90] days for a single offense, forfeit [to forfeiture of]
	pay and allowances, and a [to] reduction [of a noncommissioned
	officer] to any lower rank if the person is a noncommissioned
	officer [the ranks].
	SECTION 11.  Section 432.042, Government Code, is amended to
	read as follows:
	Sec. 432.042.  WHO MAY CONVENE SPECIAL COURT-MARTIAL. In
	the state military forces not in federal service, any commander in
	the grade of O-5 [lieutenant colonel] or [in a] higher [grade] may
	convene a special court-martial.
	SECTION 12.  Section 432.043, Government Code, is amended to
	read as follows:
	Sec. 432.043.  WHO MAY CONVENE SUMMARY COURT-MARTIAL. In
	the state military forces not in federal service, any commander in
	the grade of O-4 [major] or [in a] higher [grade] may convene a
	summary court-martial.
	SECTION 13.  Sections 432.044(a), (c), and (d), Government
	Code, are amended to read as follows:
	(a)  A state commissioned officer in a duty status is
	eligible to serve on a court-martial [for the trial of a person who
	may lawfully be brought before the court for trial].
	(c)  An enlisted member of the state military forces in a
	duty status who is not a member of the same unit as the accused is
	eligible to serve on general and special courts-martial for the
	trial of an enlisted member of the state military forces who may
	lawfully be brought before the court for trial if, before the
	conclusion of a session called by the military judge under Section
	432.064(a) before trial or, in the absence of such a session, before
	the court is assembled for the trial of the accused, the accused
	personally has requested in writing that enlisted members serve on
	it. After such a request, the accused may not be tried by a general
	or special court-martial the membership of which does not include
	enlisted members in a number comprising at least one-third of the
	total membership of the court, unless eligible members cannot be
	obtained because of physical conditions or military exigencies. If
	a sufficient number of enlisted members cannot be obtained, the
	court may be convened and the trial held without them, but the
	convening authority shall make a detailed written statement, to be
	appended to the record, stating why they could not be obtained. In
	this subsection, "unit" means a regularly organized body of the
	state military forces not larger than a company, a squadron, a
	division of the naval militia, or a body corresponding to one of
	them.
	(d)  When [If] it can be avoided, a person subject to this
	chapter may not be tried by a court-martial of which any [, a]
	member [of which] is junior to the accused [him] in rank or grade.
	On convening a court-martial, the convening authority shall detail
	as members of the court-martial members of the state military
	forces that, in the convening authority's [his] opinion, are best
	qualified for the duty because of age, education, training,
	experience, length of service, and judicial temperament. A member
	of the state military forces is not eligible to serve as a member of
	a general or special court-martial if the member is the accuser, is
	[or] a witness, [for the prosecution] or has acted as investigating
	officer or counsel in the same case.
	SECTION 14.  Section 432.045(d), Government Code, is amended
	to read as follows:
	(d)  A person who is the accuser, is [or] a witness, [for the
	prosecution] or has acted as investigating officer or counsel in
	the same [a] case is not eligible to act as military judge in the
	case.
	SECTION 15.  Section 432.046, Government Code, is amended by
	adding Subsection (b-1) to read as follows:
	(b-1)  Neither trial counsel nor defense counsel for a
	general court-martial may be under the supervision or command of
	the other. The accused may expressly waive the provisions of this
	subsection.
	SECTION 16.  Section 432.048(d), Government Code, is amended
	to read as follows:
	(d)  If the military judge of a court-martial composed of a
	military judge only is unable to proceed with the trial because of
	physical disability, as a result of a challenge, or for other good
	cause, the trial shall proceed, subject to any applicable
	conditions of Section 432.031(1)(B) or (2)(B) [(2)(C)], after the
	detail of a new military judge as if no evidence had previously been
	introduced, unless a verbatim record of the evidence previously
	introduced or stipulation of that evidence is read in court in the
	presence of the new military judge, the accused, and counsel for
	both sides.
	SECTION 17.  Section 432.062(d), Government Code, is amended
	to read as follows:
	(d)  In the preparation of an effectiveness, fitness, or
	efficiency report, or another report or document used in whole or
	part for determining whether a member of the state military forces
	is qualified to be advanced in grade, in determining the assignment
	or transfer of a member of the state military forces, or in
	determining whether a member of the state military forces should be
	retained on duty, a person subject to this chapter may not:
	(1)  consider or evaluate the performance of duty of
	the member as a member of or witness in a court-martial; or
	(2)  give a less favorable rating or evaluation of a
	member of the state military forces because of the zeal with which
	the member, as counsel, represented an accused before a
	court-martial.
	SECTION 18.  Section 432.183, Government Code, is amended to
	read as follows:
	Sec. 432.183.  CHAPTER [SECTIONS] TO BE EXPLAINED.  (a)
	This chapter [Sections 432.002, 432.003, 432.011-432.017, 432.021,
	432.044, 432.046, 432.052, 432.062, 432.063, 432.091,
	432.121-432.167, and 432.183-432.185] shall be carefully explained
	to every enlisted member at the time of or not later than the 30th
	day after the date of the member's [his] enlistment, transfer, or
	induction into, or the member's [his] order to duty in or with, any
	of the state military forces. This chapter [They] shall also be
	explained annually to each unit of the state military forces.
	(b)  A complete text of this chapter and of the regulations
	prescribed by the governor under this chapter shall be made
	available to any member of the state military forces, on [his]
	request, for the member's [his] personal examination.
	SECTION 19.  Section 432.190(b), Government Code, is amended
	to read as follows:
	(b)  A fine or forfeiture imposed by nonjudicial punishment
	or a special or summary court-martial shall be paid to the officer
	imposing nonjudicial punishment, the officer ordering the court, or
	the officer commanding at that time. The officer, not later than
	the fifth day after the date of the payment's receipt, shall place
	it to the credit of the military unit fund of the unit of which the
	person fined was a member when the fine was imposed.
	SECTION 20.  (a) The changes in law made by this Act apply
	only to an offense committed on or after the effective date of this
	Act. For purposes of this section, an offense is committed before
	the effective date of this Act if any element of the offense occurs
	before that date.
	(b)  An offense committed before the effective date of this
	Act is covered by the law in effect when the offense was committed,
	and the former law is continued in effect for that purpose.
	SECTION 21.  This Act takes effect September 1, 2009.