BILL ANALYSIS



C.S.H.B. 246
By: Gutierrez
3-29-95
Committee Report (Substituted)


BACKGROUND

In 1994, a jury found an elected Hidalgo County official guilty of
felony charges.  After the county officer refused to step down from
office, both political parties petitioned to force his removal and
place the office on the November 8th election ballot.  The petition
was dismissed from the 13th Court of Criminal Appeals ruling that
the judgment was not final until sentencing.  As the law is
written, one can construe different interpretation of the removal
statute.

PURPOSE

This legislation establishes that as soon as the defendant is found
guilty of a felony or misdemeanor involving official misconduct, he
or she is effectively removed from office.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency or institution.

SECTION BY SECTION ANALYSIS

SECTION 1.   Amends Section 87.031 of the Local Government Code to
read as follows: 
               (a) An adjudication of guilt of a county officer by
a petit jury or trial              court judge for any felony or an
official misconduct misdemeanor operates               as immediate
removal of that officer. The commissioners court shall                immediately appoint a temporary officer to perform the
duties.

               (b) The court shall include a removal order in the
judgment and not              withstanding the courts execution of
the order of removal, the removal is              effective
immediately after an adjudication of guilt under subsection (a).

SECTION 2.   Amends Section 87.032 of the Local Government Code to
read as follows:
               (a) An appeal by the officer does not affect the
removal of the officer.

               (b) If the officer is acquitted on appeal, the
county is required to reinstate              the officer and
provide back pay, including any increase in compensation              the officer would have received had the officer not been
removed.

               (c) If the officer is not acquitted, the office will
be filled as provided by                Subchapter D and the
Election Code as if the office were vacant.

SECTION 3. Emergency Clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The committee substitute adds language to establish more clearly
that immediately after the adjudication of guilt, the officer is
removed and the commissioners court appoints another person to
temporarily perform the duties of the convicted officer. The
committee substitute also additionally provides language clarifying
that the removal is effective immediately after adjudication of
guilt, regardless of the process involved in the court's execution
of the order of removal. 
The committee substitute adds a provision stating that an appeal
does not affect the removal, however, if the officer is acquitted,
he will be reinstated and back pay must be provided. 
The committee substitute adds a provision establishing that if the
officer is not acquitted on appeal, the office shall be filled as
provided by Subchapter D and the Election Code with the temporary
appointee continuing to perform his duties until a successor
qualifies for the office.

SUMMARY OF COMMITTEE ACTION

HB 246 was considered by the County Affairs Committee in a public
hearing on 3/29/95. The committee considered a complete committee
substitute for HB 246. One amendment was offered to the substitute.
The amendment was adopted without objection. The substitute, as
amended, was adopted without objection. The chair directed the
staff to incorporate the amendment into the substitute. HB 246 was
reported favorably as substituted with the recommendation that it
do pass and be printed, by a record vote of 7 ayes, 1 nay, 0 pnv,
1 absent.