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.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle C, Title 2, Government Code, is amended
1-6 by adding Chapter 47 to read as follows:
1-7 CHAPTER 47. PROSECUTOR CONDUCT COMMISSION
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.
9-1 Sec. 47.108. DISQUALIFICATION OF PROSECUTING ATTORNEY. (a)
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.