By Lucio                                               S.B. No. 664
       74R5004 PAM-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to removal of county officers from office.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Section 87.001, Local Government Code, is amended
    1-5  to read as follows:
    1-6        Sec. 87.001.  NO REMOVAL FOR PRIOR ACTION.  (a)  Except as
    1-7  provided by Subsection (b), an <An> officer may not be removed
    1-8  under this chapter for an act the officer committed before election
    1-9  to office.
   1-10        (b)  An officer may be removed under this chapter if:
   1-11              (1)  the act was unknown to the general public when the
   1-12  officer was elected to the office; or
   1-13              (2)  the officer is disqualified by law from holding
   1-14  office as a result of the act.
   1-15        SECTION 2.  Sections 87.011 and 87.012, Local Government
   1-16  Code, are transferred to Subchapter A, Chapter 87, Local Government
   1-17  Code, are redesignated as Sections 87.002 and 87.003, Local
   1-18  Government Code, and are amended to read as follows:
   1-19        Sec. 87.002 <87.011>.  Definitions.  In this chapter
   1-20  <subchapter>:
   1-21              (1)  "District attorney" includes a criminal district
   1-22  attorney.
   1-23              (2)  "Incompetency" means:
   1-24                    (A)  gross ignorance of official duties;
    2-1                    (B)  gross carelessness in the discharge of those
    2-2  duties; or
    2-3                    (C)  unfitness or inability to promptly and
    2-4  properly discharge official duties because of a serious physical or
    2-5  mental defect that did not exist at the time of the officer's
    2-6  election.
    2-7              (3)  "Official misconduct" means intentional, unlawful
    2-8  behavior relating to official duties by an officer entrusted with
    2-9  the administration of justice or the execution of the law.  The
   2-10  term includes conduct that is an offense under Chapter 39, Penal
   2-11  Code, and an intentional or corrupt failure, refusal, or neglect of
   2-12  an officer to perform a duty imposed on the officer by law.
   2-13        Sec. 87.003 <87.012>.  Officers Subject to Removal.  The
   2-14  district judge may, under this chapter <subchapter>, remove from
   2-15  office:
   2-16              (1)  a district attorney;
   2-17              (2)  a county attorney;
   2-18              (3)  a county judge;
   2-19              (4)  a county commissioner;
   2-20              (5)  a county clerk;
   2-21              (6)  a district clerk;
   2-22              (7)  a district and county clerk;
   2-23              (8)  a county treasurer;
   2-24              (9)  a sheriff;
   2-25              (10)  a county surveyor;
   2-26              (11)  a county tax assessor-collector;
   2-27              (12)  a constable;
    3-1              (13)  an inspector of hides and animals;
    3-2              (14)  a justice of the peace; and
    3-3              (15)  a county officer, not otherwise named by this
    3-4  section, whose office is created under the constitution or other
    3-5  law of this state.
    3-6        SECTION 3.  Section 87.013, Local Government Code, is amended
    3-7  to read as follows:
    3-8        Sec. 87.013.  GENERAL GROUNDS FOR REMOVAL.  (a)  An officer
    3-9  may be removed for:
   3-10              (1)  incompetency;
   3-11              (2)  official misconduct; <or>
   3-12              (3)  public intoxication on or off duty; or
   3-13              (4)  conduct that constitutes a misdemeanor offense
   3-14  involving moral turpitude or a felony offense under the laws of the
   3-15  United States, this state, or another state <caused by drinking an
   3-16  alcoholic beverage>.
   3-17        (b)  Public intoxication <Intoxication> is not a ground for
   3-18  removal if it appears at the trial that the intoxication was caused
   3-19  by a substance used <drinking an alcoholic beverage> on the
   3-20  direction and prescription of a licensed physician practicing in
   3-21  this state.
   3-22        (c)  If an officer is acquitted of a criminal charge that is
   3-23  the basis for a ground for removal or if the criminal charge
   3-24  against the officer is dismissed, the acquittal or dismissal does
   3-25  not prevent the officer from being removed from office in a suit
   3-26  filed under this subchapter.
   3-27        SECTION 4.  Section 87.015, Local Government Code, is amended
    4-1  by amending Subsection (b) and adding Subsection (d) to read as
    4-2  follows:
    4-3        (b)  Any resident of this state may file the petition if the
    4-4  resident <who> has lived for at least six months in the county in
    4-5  which the petition is to be filed, has never been convicted of a
    4-6  misdemeanor offense involving moral turpitude or a felony offense
    4-7  under the laws of the United States, this state, or another state,
    4-8  and <and who> is not currently under indictment in the county <may
    4-9  file the petition>.  At least one of the parties who files the
   4-10  petition must swear to it at or before the filing.
   4-11        (d)  A party other than the state must join the state as a
   4-12  defendant in the petition filed under this section.
   4-13        SECTION 5.  Section 87.016, Local Government Code, is amended
   4-14  to read as follows:
   4-15        Sec. 87.016.  CITATION OF PARTIES <OFFICER>.  (a)  After a
   4-16  petition for removal is filed, the person filing the petition shall
   4-17  apply to the district judge in writing for orders <an order>
   4-18  requiring a citation and a certified copy of the petition to be
   4-19  served on:
   4-20              (1)  the officer;
   4-21              (2)  the attorney designated by Section 87.018 to
   4-22  represent the state in a removal action under this subchapter if
   4-23  the petition was not filed by the state; and
   4-24              (3)  any other party.
   4-25        (b)  If the application <for the order> is made during the
   4-26  term of the court, action may not be taken on the petition until
   4-27  the application <order> is granted and the orders are entered in
    5-1  the minutes of the court.  If the application is made to the judge
    5-2  during the vacation of the court, the judge shall indicate on the
    5-3  petition the action taken and shall have the action entered in the
    5-4  minutes of the court at the next term.
    5-5        (c)  The judge shall issue an order for citation not later
    5-6  than the third business day after the date the application is
    5-7  submitted.  <If the judge refuses to issue the order for citation,
    5-8  the petition shall be dismissed at the cost of the person filing
    5-9  the petition.  The person may not take an appeal or writ of error
   5-10  from the judge's decision.  If the judge grants the order for
   5-11  citation, the clerk shall issue the citation with a certified copy
   5-12  of the petition.>  The judge shall require the person filing the
   5-13  petition to post security for costs in the manner provided for
   5-14  other cases.
   5-15        (d)  Each <The> citation shall order the party <officer> to
   5-16  appear and answer the petition on a date, fixed by the judge, after
   5-17  the fifth day and before the 21st day after the date the citation
   5-18  is served.  The time is computed as it is in other suits.
   5-19        (e)  In this section, "business day" does not include a
   5-20  Saturday, a Sunday, a legal holiday as defined by Section 662.021,
   5-21  Government Code, or a day on which the courthouse is closed.
   5-22        SECTION 6.  Subchapter B, Chapter 87, Local Government Code,
   5-23  is amended by adding Sections 87.0161 and 87.0162 to read as
   5-24  follows:
   5-25        Sec. 87.0161.  STATE'S ROLE IN REMOVAL SUIT.  (a)  Not later
   5-26  than the date the state is required to appear and answer in a
   5-27  removal action under this chapter, the state shall join in the suit
    6-1  as a plaintiff or file a motion to dismiss the petition that states
    6-2  all reasons for the dismissal.
    6-3        (b)  The filing of a motion to dismiss by the state is
    6-4  grounds for dismissal of the removal action.
    6-5        Sec. 87.0162.  APPOINTMENT OF VISITING JUDGE.  If the
    6-6  petition is not dismissed, the judge, as required by Section
    6-7  74.059, Government Code, shall request the presiding judge of the
    6-8  court to assign another judge who is not a resident of the county
    6-9  to dispose of the suit.
   6-10        SECTION 7.  Section 87.017, Local Government Code, is amended
   6-11  to read as follows:
   6-12        Sec. 87.017.  SUSPENSION PENDING TRIAL; TEMPORARY APPOINTEE.
   6-13  (a)  After the issuance of the order requiring citation of the
   6-14  officer, the district judge may temporarily suspend the officer and
   6-15  enjoin the officer from performing official duties if the judge
   6-16  finds after a hearing that it is in the public interest to suspend
   6-17  the officer.  The judge may suspend the officer with or without
   6-18  pay.  The judge may not terminate other benefits, including
   6-19  insurance and retirement benefits, during the period of the
   6-20  suspension. <and may appoint another person to perform the duties
   6-21  of the office.>
   6-22        (b)  If the judge suspends the officer, the judge shall order
   6-23  the clerk of the court to serve a copy of the order of suspension
   6-24  on:
   6-25              (1)  the authority required by law to fill a vacancy in
   6-26  the office; and
   6-27              (2)  the county treasurer, if any, or the person
    7-1  performing the duties of the county treasurer.  <The judge may not
    7-2  suspend the officer until the person appointed to serve executes a
    7-3  bond, with at least two good and sufficient sureties, in an amount
    7-4  fixed by the judge and conditioned as required by the judge.  The
    7-5  bond shall be used to pay damages and costs to the suspended
    7-6  officer if the grounds for removal are found at trial to be
    7-7  insufficient or untrue.  In an action to recover on the bond it is
    7-8  necessary to allege and prove that the temporary appointee actively
    7-9  aided and instigated the filing and prosecution of the removal
   7-10  action.  The suspended officer must also serve written notice on
   7-11  the temporary appointee and the appointee's bondsman, within 90
   7-12  days after the date the bond is executed, stating that the officer
   7-13  intends to hold them liable on the bond and stating the grounds for
   7-14  that liability.>
   7-15        (c)  Not later than the 21st day after the date the
   7-16  appointing authority is served with the order of suspension under
   7-17  Subsection (b), the appointing authority shall appoint a person to
   7-18  perform the duties of the suspended officer.  The temporary
   7-19  appointee shall perform the duties of the suspended officer until
   7-20  the officer is removed from office, the removal action is
   7-21  dismissed, or the final judgment establishes the officer's right to
   7-22  the office.
   7-23        (d) <(c)>  If the removal action is dismissed or the final
   7-24  judgment establishes the officer's right to the office, the county
   7-25  shall pay <the officer> from the general fund of the county to the
   7-26  officer who was suspended without pay an amount equal to the amount
   7-27  of compensation the officer would have received if the officer had
    8-1  not been suspended.  <compensation received by the temporary
    8-2  appointee.>
    8-3        SECTION 8.  Subchapter B, Chapter 87, Local Government Code,
    8-4  is amended by adding Section 87.0171 to read as follows:
    8-5        Sec. 87.0171.  ABATEMENT OF PROCEEDINGS PENDING CRIMINAL
    8-6  PROSECUTION.  If a criminal prosecution is pending against the
    8-7  officer for an act that is the basis for a ground for removal under
    8-8  this subchapter, the judge in the removal action shall abate the
    8-9  proceedings under this subchapter, excluding the issuance of a
   8-10  citation under Section 87.016 and the temporary suspension under
   8-11  Section 87.017, until:
   8-12              (1)  the criminal charges against the officer are
   8-13  dismissed;
   8-14              (2)  the court accepts a plea of guilty or nolo
   8-15  contendere entered by the officer; or
   8-16              (3)  the trier of fact enters a verdict.
   8-17        SECTION 9.  Section 87.018, Local Government Code, is amended
   8-18  by amending Subsections (a), (c), and (d) and adding Subsection (g)
   8-19  to read as follows:
   8-20        (a)  Except as provided by this subsection, an officer
   8-21  <Officers> may be removed only following a trial by jury.  An
   8-22  officer may be removed without a trial by jury if the officer, with
   8-23  the written consent of the state and the judge, files with the
   8-24  court a written waiver of the officer's right to a trial by jury.
   8-25        (c)  In a removal case tried before a jury, the judge may not
   8-26  submit special issues to the jury.  Under a proper charge
   8-27  applicable to the facts of the case, the judge shall instruct the
    9-1  jury to find from the evidence whether the grounds for removal
    9-2  alleged in the petition are true.  If the petition alleges more
    9-3  than one ground for removal, the jury shall indicate in the
    9-4  verdict, and the judge shall indicate in the judgment, which
    9-5  grounds are sustained by the evidence and which are not sustained.
    9-6  In a case tried before the court, the judge shall indicate in the
    9-7  judgment which grounds are sustained by the evidence and which
    9-8  grounds are not sustained.
    9-9        (d)  The county attorney shall represent the state in a
   9-10  proceeding for the removal of an officer except as otherwise
   9-11  provided by Subsection (e), <or> (f), or (g).
   9-12        (g)  If an indictment or information is returned against an
   9-13  officer in a county in which the petition for removal is filed, the
   9-14  attorney representing the state in the criminal action shall
   9-15  represent the state in the removal action unless the attorney
   9-16  representing the state in the criminal action is disqualified from
   9-17  representing the state in the removal action.
   9-18        SECTION 10.  Section 87.019, Local Government Code, is
   9-19  amended to read as follows:
   9-20        Sec. 87.019.  Appeal.  (a)  A <Either> party to a removal
   9-21  action may appeal the final judgment to the court of appeals in the
   9-22  manner provided for other civil cases.  The trial court by order
   9-23  shall expedite the preparation of all documents, including
   9-24  transcripts, required for an appeal under this section.  If the
   9-25  officer has not been suspended from office, the officer is not
   9-26  required to post an appeal bond but may be required to post a bond
   9-27  for costs.
   10-1        (b)  The court of appeals shall accelerate an appeal under
   10-2  this section.  The <An> appeal <of a removal action> takes
   10-3  precedence over the ordinary business of the court of appeals and
   10-4  shall be decided with all convenient dispatch.  If the trial court
   10-5  judgment is not set aside or suspended, the appellate court <of
   10-6  appeals> shall issue its mandate in the case within five days after
   10-7  the date the court renders its judgment.
   10-8        (c)  An order under Section 87.017 suspending an officer
   10-9  remains in effect pending an appeal by the officer.  If the final
  10-10  judgment is reversed and the officer's right to the office is
  10-11  established on appeal, the officer is entitled to compensation as
  10-12  provided by Section 87.017(d).
  10-13        SECTION 11.  Subchapter C, Local Government Code, is amended
  10-14  by amending Sections 87.031 and 87.032 and adding Section 87.033 to
  10-15  read as follows:
  10-16        Sec. 87.031.  Immediate Removal.  (a)  The conviction of a
  10-17  county officer or the acceptance by a court of a plea of guilty or
  10-18  nolo contendere from a county officer <by a petit jury> for any
  10-19  felony or for a misdemeanor involving official misconduct operates
  10-20  as an immediate removal from office of that officer.
  10-21        (b)  The court rendering judgment in such a case shall
  10-22  include an order documenting the removal of <removing> the officer
  10-23  in the judgment.
  10-24        Sec. 87.032.  Appeal; Suspension.  If the officer appeals the
  10-25  judgment, the <appeal supersedes the> order of removal remains in
  10-26  effect <unless the court that renders the judgment finds that it is
  10-27  in the public interest to suspend the officer> pending the appeal.
   11-1  <If the court finds that the public interest requires suspension,
   11-2  the court shall suspend the officer as provided by this
   11-3  subchapter.>
   11-4        Sec. 87.033.  SUSPENSION FOLLOWING INDICTMENT FOR CRIMINAL
   11-5  OFFENSE.  (a)  If an indictment by a grand jury of this state,
   11-6  another state, or the United States is returned or an information
   11-7  is filed in a court of this state, another state, or the United
   11-8  States against an officer for a felony offense or for a misdemeanor
   11-9  offense involving moral turpitude or official misconduct, a
  11-10  district or county attorney for the county in which the officer
  11-11  holds office may apply in writing to a district judge of that
  11-12  county for an order to temporarily suspend the officer pending the
  11-13  criminal prosecution.
  11-14        (b)  The application must include a statement that the
  11-15  officer has been charged with a felony offense or with a
  11-16  misdemeanor offense involving moral turpitude or official
  11-17  misconduct and request that the officer be temporarily suspended
  11-18  from office and enjoined from performing official duties pending
  11-19  the criminal prosecution.  A certified copy of the indictment or
  11-20  information must be attached to the application.
  11-21        (c)  After receiving the application, the judge shall order
  11-22  the clerk of the court to issue a citation and a certified copy of
  11-23  the application to be served on the officer.  The court shall order
  11-24  the officer to appear on a date, fixed by the judge, after the
  11-25  fifth day and before the 21st day after the date the citation is
  11-26  served.
  11-27        (d)  The court shall proceed with the suspension hearing
   12-1  under this section in the manner provided by Section 87.017.
   12-2        (e)  If a removal action is filed against an officer under
   12-3  Subchapter B before the resolution of a criminal prosecution under
   12-4  this subchapter, a temporary suspension ordered under this section
   12-5  shall remain in effect until the removal action and the criminal
   12-6  action are resolved.
   12-7        SECTION 12.  Section 87.014, Local Government Code, is
   12-8  repealed.
   12-9        SECTION 13.  The importance of this legislation and the
  12-10  crowded condition of the calendars in both houses create an
  12-11  emergency and an imperative public necessity that the
  12-12  constitutional rule requiring bills to be read on three several
  12-13  days in each house be suspended, and this rule is hereby suspended.