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.