By Rudd H.B. No. 2488
Substitute the following for H.B. No. 2488:
By Denton C.S.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) "Incompetency" means gross ignorance or neglect of
1-19 official duty or the failure to maintain the qualifications
1-20 required by law for election to the office.
1-21 (4) "Misconduct" means:
1-22 (A) any act that is a felony or a misdemeanor
1-23 involving official misconduct or moral turpitude;
1-24 (B) violation of the Texas Prosecutor Council
2-1 Standards and Guidelines; or
2-2 (C) willfull or persistent conduct that is
2-3 clearly inconsistent with the proper performance of a prosecuting
2-4 attorney's duties.
2-5 Sec. 47.002. COMPOSITION. (a) The commission is an agency
2-6 of the state. The commission is composed of nine members selected
2-7 as follows:
2-8 (1) four citizens of this state not licensed to
2-9 practice law, appointed by the governor with the advice and consent
2-10 of the senate;
2-11 (2) four incumbent, elected prosecuting attorneys
2-12 elected by prosecuting attorneys of the state, at least one each
2-13 of whom must be a county attorney, a county attorney with felony
2-14 responsibility, a district attorney, and a criminal district
2-15 attorney; and
2-16 (3) one assistant county attorney, assistant county
2-17 attorney with felony responsibility, assistant district attorney,
2-18 or assistant criminal district attorney, elected by the prosecuting
2-19 attorneys of the state.
2-20 (b) The court of criminal appeals shall promulgate rules for
2-21 the election of the prosecuting attorneys to the commission.
2-22 (c) In making appointments under this subsection, the
2-23 governor shall give due consideration to geographical areas of the
2-24 state and their population diversities.
2-25 Sec. 47.003. TERMS. The members of the commission serve
2-26 staggered terms of six years, with the terms of two prosecuting
2-27 attorney members and one citizen member or two citizen members and
3-1 one prosecuting attorney member expiring February 1 of each
3-2 odd-numbered year. A member may be reappointed or reelected for
3-3 additional terms.
3-4 Sec. 47.004. VACANCIES. Vacancies on the commission shall
3-5 be filled in the same manner used to select the member who vacated
3-6 the position. A member selected to fill a vacancy created other
3-7 than by expiration of a term shall be selected for the unexpired
3-8 term of the member succeeded.
3-9 Sec. 47.005. EXPENSES AND COMPENSATION. (a) A member of
3-10 the commission serves without compensation but is entitled to
3-11 reimbursement of travel expenses as provided by the General
3-12 Appropriations Act.
3-13 (b) A special master who is an active district judge or
3-14 justice of a court of appeals is entitled to reimbursement of
3-15 travel expenses as provided by the General Appropriations Act. The
3-16 expenses are in addition to other compensation and expenses
3-17 authorized by law.
3-18 (c) A special master who is a retired judge of a district
3-19 court, a retired justice of a court of appeals, or a retired judge
3-20 of the court of criminal appeals is entitled to reimbursement of
3-21 travel expenses as provided by the General Appropriations Act. In
3-22 addition, the special master is entitled to an amount equal to the
3-23 difference between the retirement benefits that person receives as
3-24 a retired judge or justice and the compensation that the state pays
3-25 an active judge or justice of the court from which the person
3-26 retired. The expenses and compensation under this subsection are
3-27 in addition to the retirement benefits to which the person is
4-1 entitled.
4-2 (d) A special counsel appointed by the commission is
4-3 entitled to reimbursement of travel expenses as provided for by the
4-4 General Appropriations Act and reasonable attorney's fees set by
4-5 the commission.
4-6 Sec. 47.006. PROMULGATION. (a) The Texas Prosecutor
4-7 Standards and Guidelines shall be adopted by the commission. The
4-8 commission may, from time to time, amend the standards and
4-9 guidelines as necessary and appropriate to the administration of
4-10 justice.
4-11 (Sections 47.007-47.100 reserved for expansion
4-12 SUBCHAPTER B. DUTIES AND POWERS
4-13 Sec. 47.101. DUTIES AND POWERS OF THE COMMISSION. (a) The
4-14 commission shall:
4-15 (1) design and use a seal;
4-16 (2) employ persons necessary to carry out the duties
4-17 and powers of the commission, including a counsel who may represent
4-18 the commission;
4-19 (3) seek the appointment of special masters under
4-20 Section 47.111;
4-21 (4) employ special counsel as provided by Section
4-22 47.112;
4-23 (5) arrange for the attendance and compensation of
4-24 witnesses, experts, and reporters as authorized by law;
4-25 (6) pay expenses of carrying out its duties;
4-26 (7) enforce the Texas Prosecutor Standards and
4-27 Guidelines;
5-1 (8) adopt rules establishing the procedures for
5-2 commission enforcement of the Texas Prosecutor Standards and
5-3 Guidelines;
5-4 (9) accept and timely investigate, adjudicate, or
5-5 dismiss complaints of disqualification, incompetency, or misconduct
5-6 of prosecuting attorneys;
5-7 (10) take disciplinary action, including private
5-8 reprimand, public reprimand, suspension, or removal;
5-9 (11) issue written opinions of interpretations of the
5-10 Texas Prosecutor Standards and Guidelines on written request of any
5-11 judge, prosecutor, or other public official of the state or any
5-12 political subdivision of this state;
5-13 (12) issue subpoenas for the attendance of witnesses;
5-14 and
5-15 (13) make amendments to the Texas Prosecutor Standards
5-16 and Guidelines as authorized by Section 47.006.
5-17 (b) The rules adopted under Subsection (a)(8) must afford
5-18 the prosecuting attorney against whom charges are made the right to
5-19 notice, counsel, hearing, discovery, confrontation of witnesses,
5-20 and all other incidents of due process as are available when a
5-21 person's property rights are in jeopardy.
5-22 Sec. 47.102. MEETINGS OF THE COMMISSION. The commission
5-23 shall meet at least four times each year and shall hold other
5-24 meetings as necessary. The commission shall designate from among
5-25 its prosecutor members a chairman and from its lay members a
5-26 vice-chairman, each of whom shall serve two-year terms and who may
5-27 be reelected. The chairman shall preside over all meetings of the
6-1 commission, and the vice-chairman shall preside in the chairman's
6-2 absence. The commission shall adopt rules with respect to the
6-3 conduct of its meetings. Five members constitute a quorum for the
6-4 transaction of business. A majority vote of the members present is
6-5 necessary for the approval of any action authorized by this
6-6 chapter, except that the recommendation to remove a prosecuting
6-7 attorney from office requires seven affirmative votes.
6-8 Sec. 47.103. COMPLAINTS MUST BE SWORN. A complaint alleging
6-9 incompetency or misconduct filed with the commission must be sworn.
6-10 Sec. 47.104. VENUE. Venue for any meeting of the
6-11 commission, or any hearing or other proceeding held by the
6-12 commission or a special master appointed to perform duties under
6-13 this chapter is in Travis County or any county in the district of
6-14 the prosecuting attorney who is the subject of the complaint.
6-15 Sec. 47.105. COMPLAINT PROCEDURE; NOTICE. (a) When a sworn
6-16 complaint is filed alleging incompetency or misconduct of a
6-17 prosecuting attorney, the commission shall examine the complaint to
6-18 determine if it contains matters requiring investigation. If the
6-19 complaint is determined to be unfounded or to allege matters
6-20 outside the scope of the commission's authority, the commission
6-21 shall dismiss the complaint. The prosecuting attorney shall be
6-22 notified of the complaint and of the substance of the complaint.
6-23 The complainant and the prosecuting attorney shall be notified of
6-24 the commission's disposition of the complaint.
6-25 (b) A prosecuting attorney shall make a sworn written
6-26 response to a complaint not later than the 30th day after the date
6-27 on which the prosecuting attorney received notice of the complaint
7-1 from the commission.
7-2 (c) If the subject of a complaint is a prosecuting attorney
7-3 who is employed as an assistant by an elected prosecuting attorney,
7-4 the commission shall send a copy of any notice required under this
7-5 section to the elected prosecuting attorney.
7-6 Sec. 47.106. INVESTIGATION; HEARINGS. (a) The commission
7-7 shall investigate complaints fairly, thoroughly, and in a timely
7-8 manner, under rules adopted by the commission.
7-9 (b) After an investigation has been completed, the
7-10 commission shall hold a hearing to act on the complaint. On
7-11 request, a prosecuting attorney who is the subject of the complaint
7-12 may appear at the hearing. The actual deliberations of the
7-13 commission with respect to a complaint are confidential and are not
7-14 subject to the open meetings law, Chapter 271, Acts of the 60th
7-15 Legislature, Regular Session, 1967 (Article 6252-17, Vernon's Texas
7-16 Civil Statutes).
7-17 (c) The standard of proof required to sustain a complaint
7-18 shall be proof by a preponderance of the evidence.
7-19 Sec. 47.107. DISCIPLINARY SANCTIONS. (a) If the commission
7-20 finds that a complaint is sustained by the evidence accumulated
7-21 during investigation and presented at hearing, the commission shall
7-22 impose an appropriate sanction of:
7-23 (1) private reprimand;
7-24 (2) public reprimand;
7-25 (3) suspension; or
7-26 (4) in the case of an elected prosecuting attorney,
7-27 initiation of an action for removal from office.
8-1 (b) If the commission imposes a private reprimand, the
8-2 commission shall give the complainant and the prosecuting attorney
8-3 written notice of the commission's action.
8-4 (c) If the commission imposes a public reprimand, the
8-5 commission shall give the complainant and the prosecuting attorney
8-6 written notice of the commission's action. The reprimand shall be
8-7 disseminated publicly under procedures established by the
8-8 commission and followed in each case.
8-9 (d) The commission may suspend a prosecuting attorney from
8-10 performing the duties and functions or exercising the privileges of
8-11 office.
8-12 (e) The commission shall suspend a prosecuting attorney from
8-13 performing the duties and functions or exercising the privileges of
8-14 office on the prosecuting attorney's indictment by a state or
8-15 federal grand jury for a felony or a misdemeanor offense involving
8-16 official misconduct, official oppression, or moral turpitude.
8-17 (f) A suspension imposed under this section must be for a
8-18 specified term that may not exceed five years. The commission
8-19 shall give written notice of a suspension order to the complainant,
8-20 the prosecuting attorney, the district clerk, and the county clerk
8-21 of the jurisdiction in which the prosecuting attorney practices and
8-22 to the supreme court. A district clerk or county clerk who
8-23 receives an order of suspension from the commission shall file the
8-24 order in the public records of the county.
8-25 Sec. 47.108. DISQUALIFICATION OF PROSECUTING ATTORNEY. (a)
8-26 In this section, "disqualified" means lacking the constitutional or
8-27 statutory requirements for holding the office or performing the
9-1 duties of a prosecuting attorney.
9-2 (b) The commission may, on its own motion or when a
9-3 complaint is received, investigate whether a prosecuting attorney
9-4 is disqualified.
9-5 (c) The commission shall give notice regarding an
9-6 investigation on whether a prosecuting attorney is disqualified to
9-7 the prosecuting attorney as provided by Section 47.105.
9-8 (d) Following investigation and hearing, the commission may
9-9 enter an order finding that a prosecuting attorney is disqualified
9-10 to perform the duties of office and may order that the prosecuting
9-11 attorney, other than an elected prosecuting attorney, cease and
9-12 desist from performing the duties of prosecuting attorney. In the
9-13 case of an elected prosecuting attorney, the commission may
9-14 commence an action for removal as provided by Section 47.109 if the
9-15 commission finds that the elected prosecuting attorney is
9-16 disqualified from holding or performing the duties of the office.
9-17 (e) If the commission determines that the disqualification
9-18 is temporary, it may suspend entering an order of disqualification
9-19 or commencement of a removal action for a reasonable time not to
9-20 exceed 90 days to permit the prosecuting attorney to resolve the
9-21 disqualification.
9-22 Sec. 47.109. REMOVAL OF PROSECUTING ATTORNEY. (a) The
9-23 commission may file a petition for removal in the district court of
9-24 the county in which the prosecuting attorney resides. The petition
9-25 shall be filed in the name of the State of Texas and docketed on
9-26 the civil docket. The petition must allege incompetency or
9-27 misconduct and include the facts that form the basis of the
10-1 allegations.
10-2 (b) The trial on the petition for removal shall be in
10-3 accordance with the rules of law, evidence, and procedure that
10-4 govern civil actions.
10-5 (c) The removal of a prosecuting attorney from an elective
10-6 office creates a vacancy in that office.
10-7 Sec. 47.110. PROCESS. (a) In the conduct of an
10-8 investigatory hearing or deposition, a member of the commission or
10-9 a special master may administer oaths and may issue subpoenas for
10-10 the attendance of witnesses, to compel testimony, or to produce any
10-11 tangible evidence.
10-12 (b) Process under this section is enforceable by contempt
10-13 proceedings in a district court.
10-14 (c) All peace officers shall serve process and execute all
10-15 lawful orders of the commission or a special master. Process or
10-16 orders may be executed by any other person designated by the
10-17 commission or a special master.
10-18 (d) In an investigative proceeding, hearing, or deposition,
10-19 process extends to all parts of the state, and each witness is
10-20 entitled to receive the same fees and expenses as allowed witnesses
10-21 in civil cases.
10-22 Sec. 47.111. SPECIAL MASTERS. (a) The commission may
10-23 request that the presiding judge of the court of criminal appeals
10-24 appoint a special master. The presiding judge shall appoint a
10-25 special master not later than the 10th day after the date the
10-26 presiding judge receives the request for appointment.
10-27 (b) The special master must be an active or retired district
11-1 judge or justice of the court of appeals or a retired judge of the
11-2 court of criminal appeals.
11-3 (c) The special master may conduct investigatory hearings,
11-4 depositions, and other proceedings under rules adopted by the
11-5 commission.
11-6 Sec. 47.112. SPECIAL COUNSEL. The commission may employ
11-7 special counsel to represent the commission in any proceedings.
11-8 Sec. 47.113. CONFIDENTIALITY. (a) Except as provided by
11-9 Subsections (b) and (c), all papers, records, evidence, and
11-10 proceedings before the commission are confidential.
11-11 (b) If the commission issues a public reprimand or suspends
11-12 a prosecuting attorney under Section 47.107, the commission shall
11-13 publish a disposition order that states the basis for its action.
11-14 (c) The commission may respond at any time when a source
11-15 other than the commission causes notoriety concerning a prosecuting
11-16 attorney and the commission determines that the best interests of
11-17 the prosecuting attorney and the public would be served by a
11-18 response.
11-19 Sec. 47.114. REVIEW OF COMMISSION DECISION. (a) A
11-20 prosecuting attorney who receives from the commission a sanction is
11-21 entitled to a review of the commission's decision. This section
11-22 does not apply to a decision by the commission to institute removal
11-23 proceedings.
11-24 (b) Not later than the 30th day after the date on which the
11-25 commission issues its decision, the prosecuting attorney must file
11-26 with the presiding judge of the court of criminal appeals a written
11-27 petition for the appointment of a court of review.
12-1 (c) Not later than the 10th day after the date the presiding
12-2 judge receives the written request, the presiding judge shall
12-3 select by lot the court of review. The court of review shall be
12-4 composed of three district court judges serving in a district other
12-5 than the district in which the prosecuting attorney serves and
12-6 other than a district in which a commissioner serves as a
12-7 prosecuting attorney. The presiding judge of the court of criminal
12-8 appeals shall designate one of the district judges as presiding
12-9 judge of the court of review. The presiding judge of the court of
12-10 criminal appeals shall notify the prosecuting attorney and the
12-11 district judges of the appointments and of the date of the
12-12 appointments. Service on the court of review is a part of the
12-13 official duties of a district judge and no additional compensation
12-14 may be paid for the service.
12-15 (d) Not later than the 15th day after the date of the
12-16 appointment of the court of review, the commission shall file with
12-17 the prosecuting attorney and each judge of the court of review a
12-18 charging document containing the commission's specific findings
12-19 against the prosecuting attorney. Before the hearing before the
12-20 court of review the prosecuting attorney may file a response to the
12-21 charging document. The charging document and any response shall be
12-22 public.
12-23 (e) The review by the court of review is by trial de novo as
12-24 that term is used in the appeal of a case from a justice court to a
12-25 county court. Any hearings of the court shall be public and shall
12-26 be held at the location or locations determined by the presiding
12-27 judge of the court of review.
13-1 (f) The procedure for the review is governed by the rules of
13-2 law, evidence, and procedure that apply to civil actions.
13-3 (g) The petitioner is not entitled to a trial by jury in a
13-4 review under this section.
13-5 (h) Not later than the 30th day after the date the charging
13-6 document is filed with the prosecuting attorney and the court of
13-7 review, the court shall conduct a hearing on the charging document.
13-8 Not later than the 60th day after the date of the conclusion of the
13-9 hearing, the court of review shall issue a decision regarding the
13-10 proper disposition of the appeal.
13-11 Sec. 47.115. NO AWARD OF COSTS. The commission, a special
13-12 master, a district court, or a court of review may not award costs
13-13 in any proceeding under this chapter.
13-14 Sec. 47.116. ANNUAL REPORT. (a) Not later than December 1
13-15 of each year, the commission shall submit to the speaker of the
13-16 house of representatives, lieutenant governor, and governor a
13-17 report for the preceding fiscal year ending August 31.
13-18 (b) The report must include:
13-19 (1) an explanation of the role of the commission;
13-20 (2) annual statistical information and examples of
13-21 proper and improper prosecuting attorney conduct;
13-22 (3) an explanation of the commission's processes; and
13-23 (4) recommended changes that the commission considers
13-24 necessary in its rules or applicable statutes or constitutional
13-25 provisions.
13-26 Sec. 47.117. SUNSET PROVISION. The commission is subject to
13-27 the Texas Sunset Act (Chapter 325), but is not abolished under that
14-1 Act. The commission shall be reviewed under the Act during the
14-2 period of review in which state agencies abolished September 1,
14-3 2003, and every 12th year after 2003 are reviewed.
14-4 SECTION 2. (a) The initial members of the Prosecutor
14-5 Conduct Commission, as established by this Act, shall be appointed
14-6 or elected as provided by this section.
14-7 (b) The governor shall appoint one citizen member to serve a
14-8 term expiring February 1, 1995, two citizen members to serve terms
14-9 expiring February 1, 1997, and one citizen member to serve a term
14-10 expiring February 1, 1999.
14-11 (c) The prosecuting attorneys of Texas shall elect two
14-12 prosecuting attorneys to serve terms expiring February 1, 1995, one
14-13 prosecuting attorney to serve a term expiring February 1, 1997, and
14-14 two prosecuting attorneys to serve terms expiring February 1, 1999.
14-15 SECTION 3. This Act takes effect September 1, 1993.
14-16 SECTION 4. The importance of this legislation and the
14-17 crowded condition of the calendars in both houses create an
14-18 emergency and an imperative public necessity that the
14-19 constitutional rule requiring bills to be read on three several
14-20 days in each house be suspended, and this rule is hereby suspended.