1-1 By: Lucio S.B. No. 664
1-2 (In the Senate - Filed February 20, 1995; February 21, 1995,
1-3 read first time and referred to Committee on Intergovernmental
1-4 Relations; May 4, 1995, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 8, Nays 0;
1-6 May 4, 1995, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 664 By: Patterson
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to removal of county officers from office.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Subchapter A, Chapter 87, Local Government Code,
1-13 is amended by amending Section 87.001 and adding Section 87.002 to
1-14 read as follows:
1-15 Sec. 87.001. NO REMOVAL FOR PRIOR ACTION. (a) Except as
1-16 provided by Subsection (b), an <An> officer may not be removed
1-17 under this chapter for an act the officer committed before election
1-18 to office.
1-19 (b) An officer may be removed under this chapter if the act
1-20 was unknown to the general public when the officer was elected to
1-21 the office.
1-22 Sec. 87.002. DURATION OF SUSPENSION. The suspension of an
1-23 officer under a section of this chapter remains in effect and may
1-24 not be enjoined until all removal actions under this chapter in
1-25 which the officer is a defendant are finally resolved.
1-26 SECTION 2. Sections 87.011 and 87.012, Local Government
1-27 Code, are transferred to Subchapter A, Chapter 87, Local Government
1-28 Code, are redesignated as Sections 87.003 and 87.004, Local
1-29 Government Code, and are amended to read as follows:
1-30 Sec. 87.003 <87.011>. Definitions. In this chapter
1-31 <subchapter>:
1-32 (1) "District attorney" includes a criminal district
1-33 attorney.
1-34 (2) "Incompetency" means:
1-35 (A) gross ignorance of official duties;
1-36 (B) gross carelessness in the discharge of those
1-37 duties; or
1-38 (C) unfitness or inability to promptly and
1-39 properly discharge official duties because of a serious physical or
1-40 mental defect that did not exist at the time of the officer's
1-41 election.
1-42 (3) "Official misconduct" means intentional, unlawful
1-43 behavior relating to official duties by an officer entrusted with
1-44 the administration of justice or the execution of the law. The
1-45 term includes an intentional or corrupt failure, refusal, or
1-46 neglect of an officer to perform a duty imposed on the officer by
1-47 law.
1-48 Sec. 87.004 <87.012>. Officers Subject to Removal. The
1-49 district judge may, under this chapter <subchapter>, remove from
1-50 office:
1-51 (1) a district attorney;
1-52 (2) a county attorney;
1-53 (3) a county judge;
1-54 (4) a county commissioner;
1-55 (5) a county clerk;
1-56 (6) a district clerk;
1-57 (7) a district and county clerk;
1-58 (8) a county treasurer;
1-59 (9) a sheriff;
1-60 (10) a county surveyor;
1-61 (11) a county tax assessor-collector;
1-62 (12) a constable;
1-63 (13) an inspector of hides and animals;
1-64 (14) a justice of the peace; and
1-65 (15) a county officer, not otherwise named by this
1-66 section, whose office is created under the constitution or other
1-67 law of this state.
1-68 SECTION 3. Section 87.013, Local Government Code, is amended
2-1 to read as follows:
2-2 Sec. 87.013. GENERAL GROUNDS FOR REMOVAL. (a) An officer
2-3 may be removed for:
2-4 (1) incompetency;
2-5 (2) official misconduct; <or>
2-6 (3) public intoxication on or off duty; or
2-7 (4) conduct that constitutes a misdemeanor offense
2-8 involving moral turpitude or a felony offense under the laws of the
2-9 United States, this state, or another state <caused by drinking an
2-10 alcoholic beverage>.
2-11 (b) Public intoxication <Intoxication> is not a ground for
2-12 removal if it appears at the trial that the intoxication was caused
2-13 by a substance used <drinking an alcoholic beverage> on the
2-14 direction and prescription of a licensed physician practicing in
2-15 this state.
2-16 SECTION 4. Section 87.015, Local Government Code, is amended
2-17 to read as follows:
2-18 Sec. 87.015. Petition for Removal. (a) A proceeding for
2-19 the removal of an officer is begun by filing a written petition for
2-20 removal in a district court of the county in which the officer
2-21 resides. However, a proceeding for the removal of a district
2-22 attorney is begun by filing a written petition in a district court
2-23 of:
2-24 (1) the county in which the attorney resides; or
2-25 (2) the county where the alleged cause of removal
2-26 occurred, if that county is in the attorney's judicial district.
2-27 (b) A removal petition may be filed by:
2-28 (1) an attorney authorized to represent the state in a
2-29 removal proceeding; or
2-30 (2) any <Any> resident of this state who has lived for
2-31 at least six months in the county in which the petition is to be
2-32 filed, who has never been convicted of a misdemeanor offense
2-33 involving moral turpitude or a felony offense, and who is not
2-34 currently under indictment in the county <may file the petition>.
2-35 (c) At least one of the parties who files a <the> petition
2-36 under Subsection (b)(2) must swear to it at or before the filing.
2-37 (d) <(c)> The petition must:
2-38 (1) be brought in the name of the state as plaintiff;
2-39 (2) identify the person filing the petition as a
2-40 relator if the petition is filed by a person other than the state;
2-41 (3) identify as the defendant the officer to be
2-42 removed;
2-43 (4) <addressed to the district judge of the court in
2-44 which it is filed. The petition must> set forth the grounds
2-45 alleged for the removal of the officer in plain and intelligible
2-46 language; and
2-47 (5) <must> cite the time and place of the occurrence
2-48 of each act alleged as a ground for removal with as much certainty
2-49 as the nature of the case permits.
2-50 SECTION 5. Subchapter B, Chapter 87, Local Government Code,
2-51 is amended by adding Section 87.0155 to read as follows:
2-52 Sec. 87.0155. REPRESENTATION OF STATE. (a) Except as
2-53 otherwise provided by this section, the county attorney for the
2-54 county in which the officer holds office shall represent the state
2-55 in a proceeding for the removal of an officer under this chapter.
2-56 (b) In a proceeding to remove a county attorney from office,
2-57 the district attorney shall represent the state. If the county
2-58 does not have a district attorney, the county attorney from an
2-59 adjoining county, as selected by the commissioners court of the
2-60 county in which the proceeding is pending, shall represent the
2-61 state.
2-62 (c) In a proceeding to remove the county attorney or
2-63 district attorney from office, the county attorney from an
2-64 adjoining county, as selected by the commissioners court of the
2-65 county in which the proceeding is pending, shall represent the
2-66 state if the attorney who would otherwise represent the state under
2-67 this section is also the subject of a pending removal proceeding.
2-68 (d) If an indictment or information is returned against an
2-69 officer in a county in which the petition for removal is filed and
2-70 the removal petition is based on substantially the same subject
3-1 matter as the criminal action, the attorney representing the state
3-2 in the criminal action shall represent the state in the removal
3-3 action unless the attorney representing the state in the criminal
3-4 action is disqualified from representing the state in the removal
3-5 action.
3-6 SECTION 6. Section 87.016, Local Government Code, is amended
3-7 to read as follows:
3-8 Sec. 87.016. CITATION OF PARTIES <OFFICER>. (a) After a
3-9 petition for removal is filed and before citation may issue, the
3-10 person filing the petition shall apply in writing to the district
3-11 judge to whom the case is assigned <in writing> for an order
3-12 requiring a citation and a certified copy of the petition to be
3-13 served on the officer.
3-14 (b) If the petition is filed by the state, the judge shall
3-15 issue the order of citation as requested in the application <for
3-16 the order is made during the term of the court, action may not be
3-17 taken on the petition until the order is granted and entered in the
3-18 minutes of the court. If the application is made to the judge
3-19 during the vacation of the court, the judge shall indicate on the
3-20 petition the action taken and shall have the action entered in the
3-21 minutes of the court at the next term>.
3-22 (c) If the petition is filed by a person other than the
3-23 state, the judge may refuse to issue the order of citation. If the
3-24 judge refuses to issue the order for citation, the petition shall
3-25 be dismissed at the cost of the person filing the petition. The
3-26 person may not take an appeal or writ of error from the judge's
3-27 decision.
3-28 (d) If the judge grants the order for citation, the judge
3-29 shall issue the order not later than the third day after the date
3-30 the application is submitted, and the clerk shall issue the
3-31 citation with a certified copy of the petition to the defendant
3-32 and, if the application is submitted by a person other than the
3-33 state, a copy of the order for citation and a certified copy of the
3-34 petition to the attorney designated to represent the state under
3-35 this chapter. The judge shall require the person other than the
3-36 state filing the petition to post security for costs in the manner
3-37 provided for other cases.
3-38 (e) <(d)> The citation shall order the officer to appear and
3-39 answer the petition on a date, fixed by the judge, after the fifth
3-40 day and before the 21st day after the date the citation is served.
3-41 The time is computed as it is in other suits.
3-42 SECTION 7. Subchapter B, Chapter 87, Local Government Code,
3-43 is amended by adding Section 87.0161 to read as follows:
3-44 Sec. 87.0161. APPOINTMENT OF VISITING JUDGE. (a) If the
3-45 petition is not dismissed, the judge shall request the presiding
3-46 judge of the court to assign another judge who is not a resident of
3-47 the county to dispose of the suit and shall take no further action
3-48 in the case.
3-49 (b) If the attorney for the state files a motion to dismiss
3-50 the case before the other judge is appointed, the judge ordering
3-51 service of citation may order the suit dismissed.
3-52 SECTION 8. Section 87.017, Local Government Code, is amended
3-53 to read as follows:
3-54 Sec. 87.017. SUSPENSION PENDING TRIAL; TEMPORARY APPOINTEE.
3-55 (a) After the issuance of the order requiring citation of the
3-56 officer, the district judge appointed to the case shall order the
3-57 officer to appear and show cause why the officer should not be
3-58 suspended from office during the pendency of the removal suit. The
3-59 judge shall <may> temporarily suspend the officer and enjoin the
3-60 officer from performing official duties if the judge finds after
3-61 the hearing that suspension of the officer is necessary to ensure
3-62 orderly performance of the duties of the office or to restore
3-63 public confidence in the office. If the judge suspends the
3-64 officer, the judge shall:
3-65 (1) terminate the officer's benefits, excluding salary
3-66 and insurance benefits, during the period of the suspension;
3-67 (2) <and may> appoint another person to perform the
3-68 duties of the office until the authority required by law to fill a
3-69 vacancy in the office appoints an officer as provided by this
3-70 section; and
4-1 (3) order the clerk of the court to serve a copy of
4-2 the order of suspension on:
4-3 (A) the authority required by law to fill a
4-4 vacancy in the office; and
4-5 (B) the county treasurer, if any, or the person
4-6 performing the duties of the county treasurer.
4-7 (b) On receipt of the order of suspension under Subsection
4-8 (a), the appointing authority shall appoint a person to perform
4-9 temporarily the duties of the suspended officer. The temporary
4-10 appointee shall perform the duties of the suspended officer until
4-11 the officer is removed from office, the removal action is
4-12 dismissed, the final judgment establishes the officer's right to
4-13 the office, or the office becomes vacant and is filled as provided
4-14 by law.
4-15 (c) The temporary appointee must possess the qualifications
4-16 required by law for the office. The county shall pay the temporary
4-17 appointee from the general fund of the county an amount equal to
4-18 the compensation received by the suspended officer <The judge may
4-19 not suspend the officer until the person appointed to serve
4-20 executes a bond, with at least two good and sufficient sureties, in
4-21 an amount fixed by the judge and conditioned as required by the
4-22 judge. The bond shall be used to pay damages and costs to the
4-23 suspended officer if the grounds for removal are found at trial to
4-24 be insufficient or untrue. In an action to recover on the bond it
4-25 is necessary to allege and prove that the temporary appointee
4-26 actively aided and instigated the filing and prosecution of the
4-27 removal action. The suspended officer must also serve written
4-28 notice on the temporary appointee and the appointee's bondsman,
4-29 within 90 days after the date the bond is executed, stating that
4-30 the officer intends to hold them liable on the bond and stating the
4-31 grounds for that liability>.
4-32 (d) <(c)> If the removal action is dismissed or the final
4-33 judgment establishes the officer's right to the office, the county
4-34 shall reinstate <pay> the officer <from the general fund of the
4-35 county an amount equal to the compensation received by the
4-36 temporary appointee>.
4-37 SECTION 9. Subchapter B, Chapter 87, Local Government Code,
4-38 is amended by adding Section 87.0171 to read as follows:
4-39 Sec. 87.0171. ABATEMENT OF PROCEEDINGS PENDING CRIMINAL
4-40 PROSECUTION. If a criminal prosecution is pending against the
4-41 officer for an act that is the basis for a ground for removal under
4-42 this subchapter, the judge in the removal action may abate the
4-43 proceedings under this subchapter, excluding the issuance of a
4-44 citation under Section 87.016 and the temporary suspension under
4-45 Section 87.017, until:
4-46 (1) the criminal charges against the officer are
4-47 dismissed;
4-48 (2) the court accepts a plea of guilty or nolo
4-49 contendere entered by the officer; or
4-50 (3) the trier of fact enters a verdict.
4-51 SECTION 10. Section 87.018, Local Government Code, is
4-52 amended to read as follows:
4-53 Sec. 87.018. TRIAL. (a) Except as provided by this
4-54 subsection, an officer <Officers> may be removed only following a
4-55 trial by jury. An officer may be removed without a trial by jury
4-56 if the officer, with the written consent of the state and the
4-57 judge, files with the court a written waiver of the officer's right
4-58 to a trial by jury.
4-59 (b) The trial for removal of an officer and the proceedings
4-60 connected with the trial shall be conducted as much as possible in
4-61 accordance with the rules and practice of the court in other civil
4-62 cases<, in the name of the State of Texas, and on the relation of
4-63 the person filing the petition>.
4-64 (c) In a removal case tried before a jury, the judge may not
4-65 submit special issues to the jury. Under a proper charge
4-66 applicable to the facts of the case, the judge shall instruct the
4-67 jury to find from the evidence whether the grounds for removal
4-68 alleged in the petition are true. If the petition alleges more
4-69 than one ground for removal, the jury shall indicate in the
4-70 verdict, and the judge shall indicate in the judgment, which
5-1 grounds are sustained by the evidence and which are not sustained.
5-2 In a case tried before the court, the judge shall indicate in the
5-3 judgment which grounds are sustained by the evidence and which
5-4 grounds are not sustained.
5-5 <(d) The county attorney shall represent the state in a
5-6 proceeding for the removal of an officer except as otherwise
5-7 provided by Subsection (e) or (f).>
5-8 <(e) In a proceeding to remove a county attorney from
5-9 office, the district attorney shall represent the state. If the
5-10 county does not have a district attorney, the county attorney from
5-11 an adjoining county, as selected by the commissioners court of the
5-12 county in which the proceeding is pending, shall represent the
5-13 state.>
5-14 <(f) In a proceeding to remove the county attorney or
5-15 district attorney from office, the county attorney from an
5-16 adjoining county, as selected by the commissioners court of the
5-17 county in which the proceeding is pending, shall represent the
5-18 state if the attorney who would otherwise represent the state under
5-19 this section is also the subject of a pending removal proceeding.>
5-20 SECTION 11. Section 87.019, Local Government Code, is
5-21 amended to read as follows:
5-22 Sec. 87.019. New Trial or Appeal. (a) A <Either> party to
5-23 a removal action other than the state may move for a new trial or
5-24 appeal the final judgment to the court of appeals in the manner
5-25 provided for other civil cases. The state must file a motion for
5-26 new trial or perfect its appeal not later than the 10th day after
5-27 the date the court enters its written judgment. The trial court by
5-28 order shall expedite the preparation of all documents, including
5-29 transcripts, required for an appeal under this section. If the
5-30 officer has not been suspended from office, the officer is not
5-31 required to post an appeal bond but may be required to post a bond
5-32 for costs.
5-33 (b) The court of appeals shall accelerate an appeal under
5-34 this section. The <An> appeal <of a removal action> takes
5-35 precedence over the ordinary business of the court of appeals and
5-36 shall be decided with all convenient dispatch. If the trial court
5-37 judgment is not set aside or suspended, the appellate court <of
5-38 appeals> shall issue its mandate in the case within five days after
5-39 the date the court renders its judgment.
5-40 SECTION 12. Subchapter C, Chapter 87, Local Government Code,
5-41 is amended by amending Sections 87.031 and 87.032 and by adding
5-42 Section 87.033 to read as follows:
5-43 Sec. 87.031. Immediate Removal. (a) In a court of record,
5-44 the entry of a plea of guilty or nolo contendere by a county
5-45 officer or a verdict of guilty by a petit jury or, if the officer
5-46 has waived a trial by jury, the entry of a finding of guilt of the
5-47 officer by the court <The conviction of a county officer by a petit
5-48 jury> for any felony or for a misdemeanor involving official
5-49 misconduct operates as an immediate removal from office of that
5-50 officer and the office becomes vacant unless an appeal is filed.
5-51 (b) The court rendering judgment in such a case shall
5-52 include an order documenting the removal of <removing> the officer
5-53 in the judgment.
5-54 Sec. 87.032. APPEAL<; SUSPENSION>. If the officer appeals
5-55 the judgment, the <appeal supersedes the> order of removal remains
5-56 in effect <unless the court that renders the judgment finds that it
5-57 is in the public interest to suspend the officer> pending the
5-58 appeal. <If the court finds that the public interest requires
5-59 suspension, the court shall suspend the officer as provided by this
5-60 subchapter.>
5-61 Sec. 87.033. SUSPENSION FOLLOWING INDICTMENT FOR CRIMINAL
5-62 OFFENSE. (a) If an indictment by a grand jury of this state,
5-63 another state, or the United States is returned or an information
5-64 is filed in a court of this state, another state, or the United
5-65 States against an officer for a felony offense or for a misdemeanor
5-66 offense involving official misconduct, a district or county
5-67 attorney for the county in which the officer holds office may apply
5-68 in writing to a district judge of that county for an order to
5-69 temporarily suspend the officer pending the criminal prosecution.
5-70 (b) The application must include a statement that the
6-1 officer has been charged with a felony offense or with a
6-2 misdemeanor offense involving official misconduct and request that
6-3 the officer be temporarily suspended from office and enjoined from
6-4 performing official duties pending the criminal prosecution. A
6-5 certified copy of the indictment or information must be attached to
6-6 the application.
6-7 (c) After receiving the application, the judge shall order
6-8 the clerk of the court to issue a citation and a certified copy of
6-9 the application to be served on the officer. The court shall order
6-10 the officer to appear on a date, fixed by the judge, after the
6-11 fifth day and before the 21st day after the date the citation is
6-12 served.
6-13 (d) The court shall proceed with the suspension hearing
6-14 under this section in the manner provided by Subchapter B.
6-15 (e) Except as provided by Section 87.002, the court shall
6-16 reinstate an officer suspended under this section if the officer is
6-17 acquitted of all charges on which the suspension was based.
6-18 SECTION 13. The importance of this legislation and the
6-19 crowded condition of the calendars in both houses create an
6-20 emergency and an imperative public necessity that the
6-21 constitutional rule requiring bills to be read on three several
6-22 days in each house be suspended, and this rule is hereby suspended.
6-23 * * * * *