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.