By Rudd                                               H.B. No. 2488
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the establishment of the Prosecutor Conduct Commission
    1-3  with the authority to discipline certain prosecutors.
    1-5        SECTION 1.  Subtitle C, Title 2, Government Code, is amended
    1-6  by adding Chapter 47 to read as follows:
    1-8                   SUBCHAPTER A.  GENERAL PROVISIONS
    1-9        Sec. 47.001.  DEFINITIONS.  In this chapter:
   1-10              (1)  "Commission" means the Prosecutor Conduct
   1-11  Commission.
   1-12              (2)  "Prosecuting attorney" means a person who holds
   1-13  the office of county attorney, county attorney with felony
   1-14  responsibility, district attorney, or criminal district attorney
   1-15  and who represents the state in criminal cases.  The term includes
   1-16  an assistant and a person holding the office pro tempore.  The term
   1-17  does not include a municipal court prosecutor.
   1-18              (3)  "Judge" means a judge who presides over a district
   1-19  court, criminal district court, county court at law, or criminal
   1-20  county court at law, where felony or misdemeanor cases are heard.
   1-21              (4)  "Criminal defense attorney" means an attorney who
   1-22  practices criminal law and is not a judge or prosecuting attorney.
   1-23              (5)  "Incompetency" means gross ignorance or neglect of
   1-24  official duty or the failure to maintain the qualifications
    2-1  required by law for election to the office.
    2-2              (6)  "Misconduct" means:
    2-3                    (A)  any act that is a felony or a misdemeanor
    2-4  involving official misconduct or moral turpitude;
    2-5                    (B)  violation of the Texas Prosecutor Council
    2-6  Standards and Guidelines; or
    2-7                    (C)  wilfull or persistent conduct that is
    2-8  clearly inconsistent with the proper performance of a prosecuting
    2-9  attorney's duties.
   2-10        Sec. 47.002.  COMPOSITION.  (a)  The commission is an agency
   2-11  of the state.  The commission is composed of nine members selected
   2-12  as follows:
   2-13              (1)  three citizens of this state not licensed to
   2-14  practice law, appointed by the governor with the advice and consent
   2-15  of the senate;
   2-16              (2)  two incumbent, elected prosecuting attorneys at
   2-17  least one each of whom must be a county attorney, a county attorney
   2-18  with felony responsibility, a district attorney, and a criminal
   2-19  district attorney, appointed by the governor with the advice and
   2-20  consent of the senate;
   2-21              (3)  two incumbent, elected judges; and
   2-22              (4)  two criminal defense attorneys, appointed by the
   2-23  governor with the advice and consent of the senate.
   2-24        (b)  A judge member's duties as a member of the council are
   2-25  additional to his duties as a judge.  Membership on the council
   2-26  does not constitute dual officeholding.
   2-27        (c)  In making appointments under this subsection, the
    3-1  governor shall give due consideration to geographical areas of the
    3-2  state and their population diversities.
    3-3        Sec. 47.003.  TERMS.  The members of the commission serve
    3-4  staggered terms of six years, with the terms of two attorney
    3-5  members and one citizen member expiring February 1 of each
    3-6  odd-numbered year.  A member may be reappointed for additional
    3-7  terms.
    3-8        Sec. 47.004.  VACANCIES.  Vacancies on the commission shall
    3-9  be filled in the same manner used to select the member who vacated
   3-10  the position.  A member selected to fill a vacancy created other
   3-11  than by expiration of a term shall be selected for the unexpired
   3-12  term of the member succeeded.
   3-13        Sec. 47.005.  EXPENSES AND COMPENSATION.  (a)  A member of
   3-14  the commission serves without compensation but is entitled to
   3-15  reimbursement of travel expenses as provided by the General
   3-16  Appropriations Act.
   3-17        (b)  A special master who is an active district judge or
   3-18  justice of a court of appeals is entitled to reimbursement of
   3-19  travel expenses as provided by the General Appropriations Act.  The
   3-20  expenses are in addition to other compensation and expenses
   3-21  authorized by law.
   3-22        (c)  A special master who is a retired judge of a district
   3-23  court, a retired justice of a court of appeals, or a retired judge
   3-24  of the court of criminal appeals is entitled to reimbursement of
   3-25  travel expenses as provided by the General Appropriations Act.  In
   3-26  addition, the special master is entitled to an amount equal to the
   3-27  difference between the retirement benefits that person receives as
    4-1  a retired judge or justice and the compensation that the state pays
    4-2  an active judge or justice of the court from which the person
    4-3  retired.  The expenses and compensation under this subsection are
    4-4  in addition to the retirement benefits to which the person is
    4-5  entitled.
    4-6        (d)  A special counsel appointed by the commission is
    4-7  entitled to reimbursement of travel expenses as provided for by the
    4-8  General Appropriations Act and reasonable attorney's fees set by
    4-9  the commission.
   4-10        Sec. 47.006.  PROMULGATION.  The Texas Prosecutor Standards
   4-11  and Guidelines shall be adopted by the commission.  The commission
   4-12  may, from time to time, amend the standards and guidelines as
   4-13  necessary and appropriate to the administration of justice.
   4-14            (Sections 47.007-47.100 reserved for expansion
   4-15                   SUBCHAPTER B.  DUTIES AND POWERS
   4-16        Sec. 47.101.  DUTIES AND POWERS OF THE COMMISSION.  (a)  The
   4-17  commission shall:
   4-18              (1)  design and use a seal;
   4-19              (2)  employ persons necessary to carry out the duties
   4-20  and powers of the commission, including a counsel who may represent
   4-21  the commission;
   4-22              (3)  seek the appointment of special masters under
   4-23  Section 47.111;
   4-24              (4)  employ special counsel as provided by Section
   4-25  47.112;
   4-26              (5)  arrange for the  attendance  and  compensation  of
   4-27  witnesses, experts, and reporters as authorized by law;
    5-1              (6)  pay expenses of carrying out its duties;
    5-2              (7)  enforce the Texas Prosecutor Standards and
    5-3  Guidelines;
    5-4              (8)  adopt rules establishing the procedures for
    5-5  commission enforcement of the Texas Prosecutor Standards and
    5-6  Guidelines;
    5-7              (9)  accept and timely investigate, adjudicate, or
    5-8  dismiss complaints of disqualification, incompetency, or misconduct
    5-9  of prosecuting attorneys;
   5-10              (10)  take disciplinary action, including private
   5-11  reprimand, public reprimand, suspension, or removal;
   5-12              (11)  issue written opinions of interpretations of the
   5-13  Texas Prosecutor Standards and Guidelines on written request of any
   5-14  judge, prosecutor, or other public official of the state or any
   5-15  political subdivision of this state;
   5-16              (12)  issue subpoenas for the attendance of witnesses;
   5-17  and
   5-18              (13)  make amendments to the Texas Prosecutor Standards
   5-19  and Guidelines as authorized by Section 47.006.
   5-20        (b)  The rules adopted under Subsection (a)(8) must afford
   5-21  the prosecuting attorney against whom charges are made the right to
   5-22  notice, counsel, hearing, discovery, confrontation of witnesses,
   5-23  and all other incidents of due process as are available when a
   5-24  person's property rights are in jeopardy.
   5-25        Sec. 47.102.  MEETINGS OF THE COMMISSION.  The commission
   5-26  shall meet at least four times each year and shall hold other
   5-27  meetings as necessary.  The commission shall designate from among
    6-1  its prosecutor members a chairman and from its lay members a
    6-2  vice-chairman, each of whom shall serve two-year terms and who may
    6-3  be reelected.  The chairman shall preside over all meetings of the
    6-4  commission, and the vice-chairman shall preside in the chairman's
    6-5  absence.  The commission shall adopt rules with respect to the
    6-6  conduct of its meetings.  Five members constitute a quorum for the
    6-7  transaction of business.  A majority vote of the members present is
    6-8  necessary for the approval of any action authorized by this
    6-9  chapter, except that the recommendation to remove a prosecuting
   6-10  attorney from office requires seven affirmative votes.
   6-11        Sec. 47.103.  COMPLAINTS MUST BE SWORN.  A complaint alleging
   6-12  incompetency or misconduct filed with the commission must be sworn.
   6-13        Sec. 47.104.  VENUE.  Venue for any meeting of the
   6-14  commission, or any hearing or other proceeding held by the
   6-15  commission or a special master appointed to perform duties under
   6-16  this chapter is in Travis County or any county in the district of
   6-17  the prosecuting attorney who is the subject of the complaint.
   6-18        Sec. 47.105.  COMPLAINT PROCEDURE; NOTICE.  (a)  When a sworn
   6-19  complaint is filed alleging incompetency or misconduct of a
   6-20  prosecuting attorney, the commission shall examine the complaint to
   6-21  determine if it contains matters requiring investigation.  If the
   6-22  complaint is determined to be unfounded or to allege matters
   6-23  outside the scope of the commission's authority, the commission
   6-24  shall dismiss the complaint.  The prosecuting attorney shall be
   6-25  notified of the complaint and of the substance of the complaint.
   6-26  The complainant and the prosecuting attorney shall be notified of
   6-27  the commission's disposition of the complaint.
    7-1        (b)  A prosecuting attorney shall make a sworn written
    7-2  response to a complaint not later than the 30th day after the date
    7-3  on which the prosecuting attorney received notice of the complaint
    7-4  from the commission.
    7-5        (c)  If the subject of a complaint is a prosecuting attorney
    7-6  who is employed as an assistant by an elected prosecuting attorney,
    7-7  the commission shall send a copy of any notice required under this
    7-8  section to the elected prosecuting attorney.
    7-9        Sec. 47.106.  INVESTIGATION; HEARINGS.  (a)  The commission
   7-10  shall investigate complaints fairly, thoroughly, and in a timely
   7-11  manner, under rules adopted by the commission.
   7-12        (b)  After an investigation has been completed, the
   7-13  commission shall hold a hearing to act on the complaint.  On
   7-14  request, a prosecuting attorney who is the subject of the complaint
   7-15  may appear at the hearing.  The actual deliberations of the
   7-16  commission with respect to a complaint are confidential and are not
   7-17  subject to the open meetings law, Chapter 271, Acts of the 60th
   7-18  Legislature, Regular Session, 1967 (Article 6252-17, Vernon's Texas
   7-19  Civil Statutes).
   7-20        (c)  The standard of proof required to sustain a complaint
   7-21  shall be proof by a preponderance of the evidence.
   7-22        Sec. 47.107.  DISCIPLINARY SANCTIONS.  (a)  If the commission
   7-23  finds that a complaint is sustained by the evidence accumulated
   7-24  during investigation and presented at hearing, the commission shall
   7-25  impose an appropriate sanction of:
   7-26              (1)  private reprimand;
   7-27              (2)  public reprimand;
    8-1              (3)  suspension; or
    8-2              (4)  in the case of an elected prosecuting attorney,
    8-3  initiation of an action for removal from office.
    8-4        (b)  If the commission imposes a private reprimand, the
    8-5  commission shall give the complainant and the prosecuting attorney
    8-6  written notice of the commission's action.
    8-7        (c)  If the commission imposes a public reprimand, the
    8-8  commission shall give the complainant and the prosecuting attorney
    8-9  written notice of the commission's action.  The reprimand shall be
   8-10  disseminated publicly under procedures established by the
   8-11  commission and followed in each case.
   8-12        (d)  The commission may suspend a prosecuting attorney from
   8-13  performing the duties and functions or exercising the privileges of
   8-14  office.
   8-15        (e)  The commission shall suspend a prosecuting attorney from
   8-16  performing the duties and functions or exercising the privileges of
   8-17  office on the prosecuting attorney's indictment by a state or
   8-18  federal grand jury for a felony or a misdemeanor offense involving
   8-19  official misconduct, official oppression, or moral turpitude.
   8-20        (f)  A suspension imposed under this section must be for a
   8-21  specified term that may not exceed five years.  The commission
   8-22  shall give written notice of a suspension order to the complainant,
   8-23  the prosecuting attorney, the district clerk, and the county clerk
   8-24  of the jurisdiction in which the prosecuting attorney practices and
   8-25  to the supreme court.  A district clerk or county clerk who
   8-26  receives an order of suspension from the commission shall file the
   8-27  order in the public records of the county.
    9-2  In this section, "disqualified" means lacking the constitutional or
    9-3  statutory requirements for holding the office or performing the
    9-4  duties of a prosecuting attorney.
    9-5        (b)  The commission may, on its own motion or when a
    9-6  complaint is received, investigate whether a prosecuting attorney
    9-7  is disqualified.
    9-8        (c)  The commission shall give notice regarding an
    9-9  investigation on whether a prosecuting attorney is disqualified to
   9-10  the prosecuting attorney as provided by Section 47.105.
   9-11        (d)  Following investigation and hearing, the commission may
   9-12  enter an order finding that a prosecuting attorney is disqualified
   9-13  to perform the duties of office and may order that the prosecuting
   9-14  attorney, other than an elected prosecuting attorney, cease and
   9-15  desist from performing the duties of prosecuting attorney.  In the
   9-16  case of an elected prosecuting attorney, the commission may
   9-17  commence an action for removal as provided by Section 47.109 if the
   9-18  commission finds that the elected prosecuting attorney is
   9-19  disqualified from holding or performing the duties of the office.
   9-20        (e)  If the commission determines that the disqualification
   9-21  is temporary, it may suspend entering an order of disqualification
   9-22  or commencement of a removal action for a reasonable time not to
   9-23  exceed 90 days to permit the prosecuting attorney to resolve the
   9-24  disqualification.
   9-25        Sec. 47.109.  REMOVAL OF PROSECUTING ATTORNEY.  (a)  The
   9-26  commission may file a petition for removal in the district court of
   9-27  the county in which the prosecuting attorney resides.  The petition
   10-1  shall be filed in the name of the State of Texas and docketed on
   10-2  the civil docket.  The petition must allege incompetency or
   10-3  misconduct and include the facts that form the basis of the
   10-4  allegations.
   10-5        (b)  The trial on the petition for removal shall be in
   10-6  accordance with the rules of law, evidence, and procedure that
   10-7  govern civil actions.
   10-8        (c)  The removal of a prosecuting attorney from an elective
   10-9  office creates a vacancy in that office.
  10-10        Sec. 47.110.  PROCESS.  (a)  In the conduct of an
  10-11  investigatory hearing or deposition, a member of the commission or
  10-12  a special master may administer oaths and may issue subpoenas for
  10-13  the attendance of witnesses, to compel testimony, or to produce any
  10-14  tangible evidence.
  10-15        (b)  Process under this section is enforceable by contempt
  10-16  proceedings in a district court.
  10-17        (c)  All peace officers shall serve process and execute all
  10-18  lawful orders of the commission or a special master.  Process or
  10-19  orders may be executed by any other person designated by the
  10-20  commission or a special master.
  10-21        (d)  In an investigative proceeding, hearing, or deposition,
  10-22  process extends to all parts of the state, and each witness is
  10-23  entitled to receive the same fees and expenses as allowed witnesses
  10-24  in civil cases.
  10-25        Sec. 47.111.  SPECIAL MASTERS.  (a)  The commission may
  10-26  request that the presiding judge of the court of criminal appeals
  10-27  appoint a special master.  The presiding judge shall appoint a
   11-1  special master not later than the 10th day after the date the
   11-2  presiding judge receives the request for appointment.
   11-3        (b)  The special master must be an active or retired district
   11-4  judge or justice of the court of appeals or a retired judge of the
   11-5  court of criminal appeals.
   11-6        (c)  The special master may conduct investigatory hearings,
   11-7  depositions, and other proceedings under rules adopted by the
   11-8  commission.
   11-9        Sec. 47.112.  SPECIAL COUNSEL.  The commission may employ
  11-10  special counsel to represent the commission in any proceedings.
  11-11        Sec. 47.113.  CONFIDENTIALITY.  (a)  Except as provided by
  11-12  Subsections (b) and (c), all papers, records, evidence, and
  11-13  proceedings before the commission are confidential.
  11-14        (b)  If the commission issues a public reprimand or suspends
  11-15  a prosecuting attorney under Section 47.107, the commission shall
  11-16  publish a disposition order that states the basis for its action.
  11-17        (c)  The commission may respond at any time when a source
  11-18  other than the commission causes notoriety concerning a prosecuting
  11-19  attorney and the commission determines that the best interests of
  11-20  the prosecuting attorney and the public would be served by a
  11-21  response.
  11-22        Sec. 47.114.  REVIEW OF COMMISSION DECISION.  (a)  A
  11-23  prosecuting attorney who receives from the commission a sanction is
  11-24  entitled to a review of the commission's decision.  This section
  11-25  does not apply to a decision by the commission to institute removal
  11-26  proceedings.
  11-27        (b)  Not later than the 30th day after the date on which the
   12-1  commission issues its decision, the prosecuting attorney must file
   12-2  with the presiding judge of the court of criminal appeals a written
   12-3  petition for the appointment of a court of review.
   12-4        (c)  Not later than the 10th day after the date the presiding
   12-5  judge receives the written request, the presiding judge shall
   12-6  select by lot the court of review.  The court of review shall be
   12-7  composed of three district court judges serving in a district other
   12-8  than the district in which the prosecuting attorney serves and
   12-9  other than a district in which a commissioner serves as a
  12-10  prosecuting attorney.  The presiding judge of the court of criminal
  12-11  appeals shall designate one of the district judges as presiding
  12-12  judge of the court of review.  The presiding judge of the court of
  12-13  criminal appeals shall notify the prosecuting attorney and the
  12-14  district judges of the appointments and of the date of the
  12-15  appointments.  Service on the court of review is a part of the
  12-16  official duties of a district judge and no additional compensation
  12-17  may be paid for the service.
  12-18        (d)  Not later than the 15th day after the date of the
  12-19  appointment of the court of review, the commission shall file with
  12-20  the prosecuting attorney and each judge of the court of review a
  12-21  charging document containing the commission's specific findings
  12-22  against the prosecuting attorney.  Before the hearing before the
  12-23  court of review the prosecuting attorney may file a response to the
  12-24  charging document.  The charging document and any response shall be
  12-25  public.
  12-26        (e)  The review by the court of review is by trial de novo as
  12-27  that term is used in the appeal of a case from a justice court to a
   13-1  county court.  Any hearings of the court shall be public and shall
   13-2  be held at the location or locations determined by the presiding
   13-3  judge of the court of review.
   13-4        (f)  The procedure for the review is governed by the rules of
   13-5  law, evidence, and procedure that apply to civil actions.
   13-6        (g)  The petitioner is not entitled to a trial by jury in a
   13-7  review under this section.
   13-8        (h)  Not later than the 30th day after the date the charging
   13-9  document is filed with the prosecuting attorney and the court of
  13-10  review, the court shall conduct a hearing on the charging document.
  13-11  Not later than the 60th day after the date of the conclusion of the
  13-12  hearing, the court of review shall issue a decision regarding the
  13-13  proper disposition of the appeal.
  13-14        Sec. 47.115.  NO AWARD OF COSTS.  The commission, a special
  13-15  master, a district court, or a court of review may not award costs
  13-16  in any proceeding under this chapter.
  13-17        Sec. 47.116.  ANNUAL REPORT.  (a)  Not later than December 1
  13-18  of each year, the commission shall submit to the speaker of the
  13-19  house of representatives, lieutenant governor, and governor a
  13-20  report for the preceding fiscal year ending August 31.
  13-21        (b)  The report must include:
  13-22              (1)  an explanation of the role of the commission;
  13-23              (2)  annual statistical information and examples of
  13-24  proper and improper prosecuting attorney conduct;
  13-25              (3)  an explanation of the commission's processes; and
  13-26              (4)  recommended changes that the commission considers
  13-27  necessary in its rules or applicable statutes or constitutional
   14-1  provisions.
   14-2        Sec. 47.117.  SUNSET PROVISION.  The commission is subject to
   14-3  the Texas Sunset Act (Chapter 325, Government Code), but is not
   14-4  abolished under that Act.  The commission shall be reviewed under
   14-5  the Act during the period of review in which state agencies
   14-6  abolished September 1, 2003, and every 12th year after 2003 are
   14-7  reviewed.
   14-8        SECTION 2.  (a)  The initial members of the Prosecutor
   14-9  Conduct Commission, as established by this Act, shall be appointed
  14-10  or elected as provided by this section.
  14-11        (b)  The governor shall appoint one citizen member to serve a
  14-12  term expiring February 1, 1995, two citizen members to serve terms
  14-13  expiring February 1, 1997, and one citizen member to serve a term
  14-14  expiring February 1, 1999.
  14-15        (c)  The prosecuting attorneys of Texas shall elect two
  14-16  prosecuting attorneys to serve terms expiring February 1, 1995, one
  14-17  prosecuting attorney to serve a term expiring February 1, 1997, and
  14-18  two prosecuting attorneys to serve terms expiring February 1, 1999.
  14-19        SECTION 3.  This Act takes effect September 1, 1993.
  14-20        SECTION 4.  The importance of this legislation and the
  14-21  crowded condition of the calendars in both houses create an
  14-22  emergency and an imperative public necessity that the
  14-23  constitutional rule requiring bills to be read on three several
  14-24  days in each house be suspended, and this rule is hereby suspended.