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.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subtitle C, Title 2, Government Code, is amended
1-5 by adding Chapter 47 to read as follows:
1-6 CHAPTER 47. PROSECUTOR COUNCIL; DISCIPLINE OF PROSECUTORS
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.
4-20 Sec. 47.009. RESPONSIBILITY OF COUNCIL AND EMPLOYEES;
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
9-2 SUBCHAPTER B. DISCIPLINE OF PROSECUTING ATTORNEY
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.