By:  Denton                                            H.B. No. 834
       73R2314 RJA-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the establishment of the Prosecutor Council.
    1-4        SECTION 1.  Subtitle C, Title 2, Government Code, is amended
    1-5  by adding Chapter 47 to read as follows:
    1-7                        SUBCHAPTER A.  COUNCIL
    1-8        Sec. 47.001.  DEFINITIONS.  In this chapter:
    1-9              (1)  "Council" means the Prosecutor Council.
   1-10              (2)  "Prosecuting attorney" means a person who holds
   1-11  the office of county attorney, district attorney, or criminal
   1-12  district attorney and who represents the state in criminal cases,
   1-13  and includes a person who holds the office pro tempore.
   1-14        Sec. 47.002.  COMPOSITION.  (a)  The Prosecutor Council is an
   1-15  agency of the state.  The council is composed of nine members.
   1-16        (b)  Four members of the council must be citizens of this
   1-17  state who are not licensed to practice law.  The governor shall
   1-18  appoint those members with the advice and consent of the senate,
   1-19  giving due consideration to representation of the geographic areas
   1-20  of the state.  Appointments to the council under this subsection
   1-21  shall be made without regard to the race, color, disability, sex,
   1-22  religion, age, or national origin of the appointees.
   1-23        (c)  Five members of the council must be incumbent elected
   1-24  prosecuting attorneys, including at least one county attorney, one
    2-1  district attorney, and one criminal district attorney.  The
    2-2  prosecuting attorneys of the state shall elect those members in
    2-3  accordance with rules adopted for that purpose by the supreme
    2-4  court.
    2-5        (d)  A prosecuting attorney member's duties as a member of
    2-6  the council are additional to his duties as a prosecuting attorney.
    2-7  Membership on the council does not constitute dual officeholding.
    2-8        Sec. 47.003.  TERM.  Members of the council serve for
    2-9  staggered terms of six years, with the terms of two prosecuting
   2-10  attorney members and one citizen member or two citizen members and
   2-11  one prosecuting attorney member expiring February 1 of each
   2-12  odd-numbered year.  Each member serves until a successor has been
   2-13  appointed or elected.
   2-14        Sec. 47.004.  REMOVAL OF COUNCIL MEMBERS.  (a)  It is a
   2-15  ground for removal from the council that a member:
   2-16              (1)  does not have at the time of appointment the
   2-17  qualifications required by Section 47.002;
   2-18              (2)  does not maintain during service on the council
   2-19  the qualifications required by Section 47.002;
   2-20              (3)  cannot discharge the member's duties for a
   2-21  substantial part of the term for which the member is appointed
   2-22  because of illness or disability; or
   2-23              (4)  is absent from more than half of the regularly
   2-24  scheduled council meetings that the member is eligible to attend
   2-25  during a calendar year unless the absence is excused by majority
   2-26  vote of the council.
   2-27        (b)  The validity of an action of the council is not affected
    3-1  by the fact that it is taken when a ground for removal of a council
    3-2  member exists.
    3-3        (c)  If the executive director has knowledge that a potential
    3-4  ground for removal exists, the executive director shall notify the
    3-5  chairman of the council of the ground.  The chairman shall then
    3-6  notify the governor or chief justice of the supreme court, as
    3-7  appropriate, that a potential ground for removal exists.
    3-8        Sec. 47.005.  VACANCY.  (a)  A vacancy on the council is
    3-9  filled in the same manner as the initial appointment or election of
   3-10  the member who vacated the position.
   3-11        (b)  A member who is appointed or elected to fill a vacancy
   3-12  created other than by the expiration of a term serves for the
   3-13  remainder of the unexpired term.
   3-14        (c)  A member may be reappointed or reelected for additional
   3-15  terms.
   3-16        (d)  A prosecuting attorney member who ceases to be a
   3-17  prosecuting attorney vacates his position on the council.
   3-18        Sec. 47.006.  EXPENSES.  A member of the council is not
   3-19  entitled to compensation but is entitled to reimbursement for
   3-20  actual and necessary expenses, subject to any applicable limitation
   3-21  on reimbursement provided by the General Appropriations Act.
   3-22        Sec. 47.007.  MEETINGS; MAJORITY VOTE REQUIREMENT.  (a)  The
   3-23  council shall meet at least twice a year and shall hold other
   3-24  meetings as necessary.  The council shall establish procedures for
   3-25  the operation of its meetings.
   3-26        (b)  Except as otherwise provided by this chapter, the
   3-27  concurrence of a majority of the council members who are present
    4-1  and voting at a meeting is required for the approval of an action
    4-2  authorized by this chapter.
    4-3        (c)  The council shall develop and implement policies that
    4-4  provide the public with a reasonable opportunity to appear before
    4-5  the council and to speak on any issue under the jurisdiction of the
    4-6  council.
    4-7        Sec. 47.008.  OFFICERS AND EMPLOYEES.  (a)  The council shall
    4-8  designate a chairman from its prosecuting attorney members and a
    4-9  vice-chairman from its citizen members.  Those officers serve
   4-10  two-year terms and may be reelected.
   4-11        (b)  The chairman presides over council meetings.  In the
   4-12  absence of the chairman, the vice-chairman presides.
   4-13        (c)  The council may employ staff as necessary to perform the
   4-14  duties of the council.
   4-15        (d)  The council shall appoint an executive director who must
   4-16  be an attorney licensed in this state.  The executive director
   4-17  shall perform the duties assigned to that position by the council
   4-18  and shall represent the council in all cases before the state or
   4-19  federal courts.
   4-21  PERSONNEL MATTERS.  (a)  The council shall provide to its members
   4-22  and employees, as often as necessary, information regarding their
   4-23  qualifications for office or employment under this chapter and
   4-24  their responsibilities under applicable laws relating to standards
   4-25  of conduct for state officers or employees.
   4-26        (b)  The council shall develop and implement policies that
   4-27  clearly define the respective responsibilities of the council and
    5-1  the staff of the council.
    5-2        (c)  The executive director or the executive director's
    5-3  designee shall develop an intra-agency career ladder program.  The
    5-4  program shall require intra-agency postings of all nonentry level
    5-5  positions concurrently with any public posting.
    5-6        (d)  The executive director or the executive director's
    5-7  designee shall develop a system of annual performance evaluations.
    5-8  All merit pay for council employees must be based on the system
    5-9  established under this subsection.
   5-10        (e)  The executive director or the executive director's
   5-11  designee shall prepare and maintain a written policy statement to
   5-12  assure implementation of a program of equal employment opportunity
   5-13  under which all personnel transactions are made without regard to
   5-14  race, color, disability, sex, religion, age, or national origin.
   5-15  The policy statement must include:
   5-16              (1)  personnel policies, including policies relating to
   5-17  recruitment, evaluation, selection, appointment, training, and
   5-18  promotion of personnel;
   5-19              (2)  a comprehensive analysis of the council work force
   5-20  that meets federal and state guidelines;
   5-21              (3)  procedures by which a determination can be made of
   5-22  significant underuse in the council work force of all persons for
   5-23  whom federal or state guidelines encourage a more equitable
   5-24  balance; and
   5-25              (4)  reasonable methods to appropriately address those
   5-26  areas of significant underuse.
   5-27        (f)  A policy statement prepared under Subsection (e) must
    6-1  cover an annual period, be updated at least annually, and be filed
    6-2  with the governor's office.
    6-3        (g)  The governor's office shall deliver a biennial report to
    6-4  the legislature based on the information received under Subsection
    6-5  (f).  The report may be made separately or as a part of other
    6-6  biennial reports made to the legislature.
    6-7        Sec. 47.010.  GENERAL POWERS AND DUTIES.  (a)  The council
    6-8  shall:
    6-9              (1)  develop and adopt minimum standards for the
   6-10  operation of prosecuting attorneys' offices;
   6-11              (2)  approve courses for in-service training and
   6-12  professional development of prosecuting attorneys, their
   6-13  assistants, and their staffs;
   6-14              (3)  cooperate with the Texas Judicial Council to
   6-15  improve the maintenance and reporting of criminal justice
   6-16  statistics;
   6-17              (4)  accept and investigate complaints of the
   6-18  incompetence or misconduct of a prosecuting attorney;
   6-19              (5)  receive and consider suggestions to improve the
   6-20  administration of criminal justice;
   6-21              (6)  investigate and report on matters referred to the
   6-22  council by the governor or the legislature;
   6-23              (7)  cooperate with the Texas District and County
   6-24  Attorneys Association to carry out the provisions of this chapter;
   6-25              (8)  respond to requests for technical assistance from
   6-26  prosecuting attorneys; and
   6-27              (9)  make an annual report to the governor and the
    7-1  legislature not later than December 1 of each year regarding:
    7-2                    (A)  proceedings of the council;
    7-3                    (B)  recommended changes in jurisdictions;
    7-4                    (C)  funding needed for local offices; and
    7-5                    (D)  other matters needed to improve local
    7-6  prosecution in the state.
    7-7        (b)  The council may:
    7-8              (1)  respond to a judge's request for recommendations
    7-9  regarding the appointment of a special prosecutor if a regular
   7-10  prosecuting attorney is disqualified;
   7-11              (2)  enter into agreements with public or private
   7-12  organizations to implement the intent and purpose of this chapter;
   7-13              (3)  accept funds, grants, and gifts from a public or
   7-14  private source to implement this chapter;
   7-15              (4)  pay the expenses of prosecuting attorneys and
   7-16  their staffs to:
   7-17                    (A)  attend professional development courses;
   7-18                    (B)  assist other prosecuting attorneys;
   7-19                    (C)  advise the council; and
   7-20                    (D)  perform other actions that the council
   7-21  considers appropriate to enhance the quality of prosecution; and
   7-22              (5)  take other action appropriate for the improvement
   7-23  and more efficient administration of criminal justice.
   7-24        Sec. 47.011.  COMPLAINTS AND ACCESS.  (a)  The council shall
   7-25  prepare information of public interest describing the functions of
   7-26  the council and the council's procedures by which complaints are
   7-27  filed with and resolved by the council.  The council shall make the
    8-1  information available to the public and appropriate state agencies.
    8-2        (b)  The council shall prepare and maintain a written plan
    8-3  that describes how a person who does not speak English or who has a
    8-4  physical, mental, or developmental disability can be provided
    8-5  reasonable access to the council's programs.
    8-6        (c)  The council by rule shall establish methods by which the
    8-7  public is notified of the name, mailing address, and telephone
    8-8  number of the council for the purpose of directing complaints to
    8-9  the council.
   8-10        (d)  The council shall keep an information file about each
   8-11  complaint filed with the council that the council has authority to
   8-12  resolve.
   8-13        (e)  If a written complaint is filed with the council that
   8-14  the council has authority to resolve, the council at least
   8-15  quarterly and until final disposition of the complaint shall notify
   8-16  the parties to the complaint of the status of the complaint unless
   8-17  the notice would jeopardize an undercover investigation.
   8-18        Sec. 47.012.  ANNUAL REPORT.  The council shall file annually
   8-19  with the governor and the presiding officer of each house of the
   8-20  legislature a complete and detailed written report accounting for
   8-21  all funds received and disbursed by the council during the
   8-22  preceding fiscal year.  The annual report must be in the form and
   8-23  reported in the time provided by the General Appropriations Act.
   8-24        Sec. 47.013.  SUNSET PROVISION.  The council is subject to
   8-25  Chapter 325 (Texas Sunset Act).  Unless continued in existence as
   8-26  provided by that chapter, the council is abolished and this chapter
   8-27  expires September 1, 2005.
    9-1            (Sections 47.014-47.100 reserved for expansion
    9-3        Sec. 47.101.  Intent.  It is the intent of the legislature
    9-4  that there continue to be no restrictions on the reprimand or
    9-5  removal of a prosecuting attorney other than those in this
    9-6  subchapter.
    9-7        Sec. 47.102.  Definitions.  In this subchapter:
    9-8              (1)  "Incompetence" means:
    9-9                    (A)  gross ignorance or neglect of official
   9-10  duties;
   9-11                    (B)  the existence of a physical or mental defect
   9-12  that prohibits the prompt or proper discharge of official duties;
   9-13  or
   9-14                    (C)  failure to maintain the qualifications
   9-15  required by law for election to the office.
   9-16              (2)  "Misconduct" means:
   9-17                    (A)  conduct that is unlawful under Chapter 39,
   9-18  Penal Code;
   9-19                    (B)  an act that is a felony or a misdemeanor
   9-20  involving moral turpitude; or
   9-21                    (C)  wilful or persistent conduct that is clearly
   9-22  inconsistent with the proper performance of official duties.
   9-23        Sec. 47.103.  Procedure.  (a)  After investigation of a
   9-24  complaint of incompetence or misconduct of a prosecuting attorney,
   9-25  the council may:
   9-26              (1)  issue a private reprimand;
   9-27              (2)  order a hearing before the council; or
   10-1              (3)  request the supreme court to appoint a master to
   10-2  conduct a hearing.
   10-3        (b)  The supreme court shall adopt rules to provide for the
   10-4  procedure to be used before the council or a master in a hearing on
   10-5  a complaint of incompetence or misconduct.  The rules must be
   10-6  consistent with this chapter and with due process of law.
   10-7        (c)  In the conduct of an investigation or hearing, a member
   10-8  of the council or a master appointed by the supreme court may:
   10-9              (1)  administer oaths;
  10-10              (2)  issue subpoenas to compel:
  10-11                    (A)  the attendance or testimony of witnesses; or
  10-12                    (B)  the production of books, records, papers,
  10-13  accounts, or other relevant documents; and
  10-14              (3)  order the deposition of witnesses in accordance
  10-15  with the Texas Rules of Civil Procedure.
  10-16        (d)  An order issued by the council or master for the
  10-17  attendance of a witness, taking of testimony, or production of
  10-18  evidence is enforceable through contempt proceedings in the
  10-19  district court.
  10-20        Sec. 47.104.  Process; Witness Fees.  (a)  A law enforcement
  10-21  officer has the duty to serve process or execute an order of the
  10-22  council or master at the request of the council or master.  Service
  10-23  or execution may be performed by any other person designated for
  10-24  that purpose by the council, master, or authorized representative
  10-25  of the council or master.  Process extends to every part of the
  10-26  state.
  10-27        (b)  A witness who appears in an investigation or hearing and
   11-1  who is not an officer or employee of the state or a political
   11-2  subdivision is entitled to receive the witness fee and mileage
   11-3  allowance that is given to a witness in a civil case.
   11-4        Sec. 47.105.  Notice.  On the appointment of a master, notice
   11-5  shall be given to the prosecuting attorney who is the subject of
   11-6  the investigation or complaint.  The notice must specify the
   11-7  matters under investigation or alleged in the complaint and must
   11-8  set the date for a hearing or for the taking of testimony for the
   11-9  purposes of investigation.
  11-10        Sec. 47.106.  Petition for Removal; Trial.  (a)  At the
  11-11  conclusion of a hearing before a master, the master shall file a
  11-12  statement of the findings of fact and a complete transcript of the
  11-13  proceedings with the council.  The statement and transcript must be
  11-14  filed not later than the 30th day after the date set for the
  11-15  commencement of the hearing.  The council may extend the filing
  11-16  deadline for good cause shown.
  11-17        (b)  The proceedings and records before the council or a
  11-18  master are confidential and privileged until they are introduced in
  11-19  evidence in a proceeding for removal.
  11-20        (c)  If, after examination of the records and the
  11-21  proceedings, the council finds by majority vote of its membership
  11-22  that there exists good cause for removal of a prosecuting attorney,
  11-23  the council shall file a petition for removal in a district court
  11-24  of the county in which the prosecuting attorney resides.  The
  11-25  petition shall be filed in the name of the state and shall be
  11-26  docketed on the civil docket of the court.
  11-27        (d)  A petition for removal must allege incompetence or
   12-1  misconduct and must set forth the facts that form the basis of the
   12-2  allegations.
   12-3        (e)  If a petition for removal is filed, the judge of the
   12-4  court in which it is filed shall request the appointment of a
   12-5  special judge to hear the case.  The special judge shall select and
   12-6  appoint an attorney to prosecute the case from a list of at least
   12-7  five qualified attorneys submitted by the council.
   12-8        (f)  The trial on a petition for removal is subject to the
   12-9  Texas Rules of Civil Procedure.
  12-10        Sec. 47.107.  Disqualification.  A prosecuting attorney
  12-11  against whom a petition for removal is filed is disqualified from
  12-12  acting as a prosecuting attorney.  During a period of
  12-13  disqualification, the prosecuting attorney is entitled to receive
  12-14  the compensation provided by law for the office, but may not
  12-15  perform any duty or exercise any privilege connected with the
  12-16  office.
  12-17        Sec. 47.108.  Suspension.  (a)  A prosecuting attorney is
  12-18  suspended from office if:
  12-19              (1)  the attorney is disbarred or suspended from the
  12-20  practice of law in this state either through trial or by agreement;
  12-21              (2)  the attorney has been found guilty of a felony or
  12-22  a misdemeanor involving moral turpitude; or
  12-23              (3)  the court finds incompetence or misconduct after a
  12-24  trial on the merits of a petition for removal.
  12-25        (b)  During a period of suspension, the prosecuting attorney
  12-26  is not entitled to receive the compensation provided by law for the
  12-27  office and may not perform any duty or exercise any privilege
   13-1  connected with the office.  If the trial court judgment resulting
   13-2  in the suspension is overturned on final hearing, the prosecuting
   13-3  attorney is entitled to receive the compensation for the period of
   13-4  the suspension.
   13-5        Sec. 47.109.  Removal.  A prosecuting attorney is removed
   13-6  from office on final adjudication or conviction in an action that
   13-7  was the basis for suspension.  The court that enters a judgment
   13-8  that is the basis for the suspension shall include an order
   13-9  suspending the prosecuting attorney and removing him from office
  13-10  when the judgment becomes final.
  13-11        Sec. 47.110.  Prosecuting Attorney Pro Tempore.  (a)  On the
  13-12  disqualification or suspension of a prosecuting attorney, a
  13-13  prosecuting attorney pro tempore shall perform the duties of the
  13-14  office.  The prosecuting attorney pro tempore serves until the
  13-15  disqualification or suspension is lifted or until a successor is
  13-16  appointed and has qualified.
  13-17        (b)  A prosecuting attorney pro tempore is appointed by the
  13-18  entity who would appoint the prosecuting attorney in the event of a
  13-19  vacancy.
  13-20        (c)  A prosecuting attorney pro tempore is entitled to
  13-21  receive compensation in the amount provided by law for the office
  13-22  of prosecuting attorney.  Each governmental body that pays a
  13-23  portion of the compensation of the office shall pay the same
  13-24  portion to the prosecuting attorney pro tempore from its available
  13-25  funds.  That obligation takes precedence over any other the
  13-26  governmental body may have.
  13-27        Sec. 47.111.  Limitation.  (a)  Unless fraud or concealment
   14-1  is involved, a prosecuting attorney may not be reprimanded or
   14-2  removed from office for misconduct that occurred more than four
   14-3  years before a complaint of the misconduct is filed with the
   14-4  council.
   14-5        (b)  If fraud or concealment is involved, a prosecuting
   14-6  attorney may not be reprimanded or removed from office for
   14-7  misconduct that was discovered or should have been discovered by
   14-8  reasonable diligence more than four years before a complaint of the
   14-9  misconduct is filed with the council.
  14-10        (c)  A complaint is considered filed when made in writing to
  14-11  the executive director of the council.
  14-12        SECTION 2.  (a)  The initial appointment and election of
  14-13  members to the Prosecutor Council, as established by Chapter 47,
  14-14  Government Code, as added by this Act, shall occur in the manner
  14-15  described by this section.
  14-16        (b)  Of the initial appointed members, the governor shall
  14-17  appoint one member to serve a term expiring February 1, 1995, two
  14-18  members to serve terms expiring February 1, 1997, and one member to
  14-19  serve a term expiring February 1, 1999.
  14-20        (c)  Of the initial elected members, two members shall be
  14-21  elected to serve terms expiring February 1, 1995, one member shall
  14-22  be elected to serve a term expiring February 1, 1997, and two
  14-23  members shall be elected to serve terms expiring February 1, 1999.
  14-24        (d)  On the expiration of those terms, the term of an
  14-25  appointed or elected member is six years, as provided by Section
  14-26  47.003, Government Code, as added by this Act.
  14-27        SECTION 3.  This Act takes effect September 1, 1993.
   15-1        SECTION 4.  The importance of this legislation and the
   15-2  crowded condition of the calendars in both houses create an
   15-3  emergency   and   an   imperative   public   necessity   that   the
   15-4  constitutional rule requiring bills to be read on three several
   15-5  days in each house be suspended, and this rule is hereby suspended.