SRC-JRN C.S.S.B. 252 75(R) BILL ANALYSIS Senate Research Center C.S.S.B. 252 By: Lucio Intergovernmental Relations 2-27-97 Committee Report (Substituted) DIGEST Currently, a county officer may be removed from office based on incompetency, official misconduct, or intoxication. A district judge appointed to a county officer's case is given the discretion to temporarily suspend and appoint a temporary replacement for the suspended officer, but the officer may only be removed following a trial by jury. S.B. 252 sets forth conditions and establishes processes whereby county officers may be removed from office, if certain acts are committed. PURPOSE As proposed, C.S.S.B. 252 sets forth conditions and establishes processes whereby county officers may be removed from office, if certain acts are committed. RULEMAKING AUTHORITY This bill does not grant any additional rulemaking authority to a state officer, institution, or agency. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 87A, Local Government Code, by amending Section 87.001 and adding Section 87.002, as follows: Sec. 87.001. NO REMOVAL FOR PRIOR ACTION. Prohibits an officer from being removed under this chapter for an act committed before being elected to office, unless otherwise provided by Subsection (b). Provides that an officer may be removed if the committed act was unknown to the general public when the person was elected. Makes conforming changes. Sec. 87.002. DURATION OF SUSPENSION. Provides that the suspension of an officer remains in effect and may not be enjoined until all removal actions in which the officer is a defendant are resolved. SECTION 2. Transfers Sections 87.011 and 87.012, Local Government Code, to Chapter 87A, Local Government Code, and redesignates and amends Sections 87.003 and 87.004, Local Government Code, as follows: Sec. 87.003. DEFINITIONS. Redesignated from existing Section 87.011. Makes a conforming change. Sec. 87.004. OFFICERS SUBJECT TO REMOVAL. Redesignated from existing Section 87.012. Makes a conforming change. SECTION 3. Amends Section 87.013, Local Government Code, to set forth conditions for removal of an officer to include public intoxication, or conduct that constitutes a felony offense, under the laws of the United States, this state, or another state. Provides that public intoxication is not a ground for removal if it was caused by a substance issued on the direction and prescription of a licensed physician practicing in this state. Makes conforming changes. SECTION 4. Amends Section 87.015, Local Government Code, as follows: Sec. 87.015. PETITION FOR REMOVAL. Authorizes a petition for the removal of an officer (removal petition) to be filed by an attorney authorized to represent the state in a removal proceeding, and any resident of this state who has never been convicted of a felony offense. Sets forth requirements of the petition. Makes conforming changes. SECTION 5. Amends Chapter 87B, Local Government Code, by adding Section 87.0155, as follows: Sec. 87.0155. REPRESENTATION BY THE STATE. Requires the county attorney for the county in which the officer holds office to represent the state in a proceeding for the removal of an officer under this chapter, except as otherwise provided in this section. Requires the district attorney to represent the state in a proceeding to remove a county attorney from office. Requires the county attorney from an adjoining county, as selected by the commissioners court of the county in which the proceeding is pending, to represent the state. Requires the county attorney from an adjoining county who is selected by the commissioners court of the county in which the proceeding is pending, to represent the state if the attorney who would otherwise represent the state is the subject of a pending removal proceeding. Requires the attorney representing the state in the criminal action to represent the state in the removal action unless the attorney is disqualified from representing the state in the removal action. Provides that the attorney representing the state has exclusive control over the prosecution of an action for removal under this chapter. Authorizes the attorney to dismiss or refuse to file a petition for removal, based on the attorney's discretion. SECTION 6. Amends Section 87.016, Local Government Code, as follows: Sec. 87.016. New heading: CITATION OF PARTIES. Requires the attorney representing the state, rather than the person filing the petition, to apply in writing to the district judge to whom the case is assigned for an order requiring a citation and a certified copy of the petition to be served on the officer, after a petition for removal is filed and before a citation is issued. Requires the judge to review the petition, and if the petition states a prima facie case for removal under this chapter, the judge is required to issue the order of citation. Provides that if the judge refuses to issue the order for citation, the petition shall be dismissed at the cost of the relator, rather than the person, filing the petition. Deletes a provision prohibiting a person from taking an appeal or writ of error from the judge's decision. Requires the judge to issue the order by the third day after the date the application is submitted, if the order is granted. Requires the clerk to issue the citation with a certified copy of the petition to the defendant and a copy of the order for citation to each relator and the attorney representing the state. Requires the citation to order the officer to appear and answer the petition after the fifth and before the 21st day after the date the citation is served. Makes conforming changes. SECTION 7. Amends Chapter 87B, Local Government Code, by adding Section 87.0161, as follows: Sec. 87.0161. APPOINTMENT OF VISITING JUDGE. Requires the judge to request the presiding judge of the court to assign another judge who is not a resident of the county to dispose of the suit and to take no further action in the case, if the petition is not dismissed. Authorizes the judge ordering service of citation to order the suit dismissed, if the attorney for the state files a motion to dismiss the case before the other judge is appointed. SECTION 8. Amends Section 87.017, Local Government Code, as follows: Sec. 87.017. SUSPENSION PENDING TRIAL; TEMPORARY APPOINTEE. Requires the district judge appointed to the case under Section 87.0161 to order the officer to appear and show why the officer should not be suspended from office during the pendency of the removal suit. Requires the judge to temporarily suspend and enjoin the officer from performing official duties, if the judge finds that suspension of the officer is in the public's best interest. Sets forth responsibilities and actions the judge shall take, if the officer is suspended. Requires the appointing authority to appoint a person to perform temporarily the duties of the suspended officer after receiving the order of suspension under Subsection (a). Requires the temporary appointee to perform the duties of the suspended officer until the officer is removed from office, the removal action is dismissed, the final judgment establishes the officer's right to the office, or the office becomes vacant and is filled. Requires the temporary appointee to possess qualifications for the office. Requires the pay of the temporary appointee to come from the general fund of the county and to be equal to that of the suspended officer. Requires the county to reinstate the officer if the removal action is dismissed. Deletes text requiring the appointee to execute a bond. Makes conforming changes. SECTION 9. Amends Chapter 87B, Local Government Code, by adding Section 87.0171, as follows: Sec. 87.0171. ABATEMENT OF PROCEEDINGS PENDING CRIMINAL PROSECUTION. Authorizes the judge in a removal action to abate the proceedings under this subchapter, excluding the issuance of a citation under Section 87.016, and the temporary suspension under Section 87.017, until certain court decisions are made, if a criminal prosecution is pending against the officer and the act serves as grounds for removal. Provides that if a removal proceeding is abated under this section, a temporary suspension under Section 87.017 expires by operation of law on the 180th day after the date the removal proceeding is abated. Authorizes the attorney representing the state to request an additional six-month suspension, after the 150th day after the date a removal proceeding is abated under this section. Authorizes a judge to suspend the officer for an additional six-month period after a hearing, if the judge finds that the state has been diligent in its criminal prosecution and that the suspension of the officer is in the public's best interest. SECTION 10. Amends Section 87.018, Local Government Code, as follows: Sec. 87.018. TRIAL. Authorizes an officer to be removed without a trial by jury if the officer, with the written consent of the state and the judge, files a written waiver of the officer's right to trial by jury. Requires the judge to indicate in the judgment which grounds are sustained by the evidence and which are not. Makes conforming changes. SECTION 11. Amends Section 87.019, Local Government Code, as follows: Sec. 87.019. New heading: NEW TRIAL OR APPEAL. Authorizes a party to a removal action other than the state to move for a new trial or appeal the final judgment to the court of appeals. Requires the state to file a motion for new trial or perfect its appeal by the 10th day after the date the court enters its written judgment. Requires the trial court by order to expedite the preparation of all documents required for an appeal. Requires the court of appeals to accelerate an appeal. Requires the appellate court, rather than the court of appeals, to issue its mandate, if the trial court judgment is not set aside or suspended. Makes conforming changes. SECTION 12. Amends 87C, Local Government Code, by amending Sections 87.031 and 87.032 and by adding Section 87.033, as follows: Sec. 87.031. IMMEDIATE REMOVAL. Sets forth conditions stated in a court of record that provide for removal of officers from office and vacancy of the office unless an appeal is perfected. Requires the court rendering judgment in such a case to include an order documenting the removal of the officer in the judgment. Makes conforming changes. Sec. 87.032. New heading: APPEAL. Requires the order of removal to remain in effect if the officer appeals the judgment. Sec. 87.033. SUSPENSION FOLLOWING INDICTMENT FOR CRIMINAL OFFENSE. Authorizes a district or county attorney in the county where the officer holds office to apply in writing to a district judge for an order to suspend the officer pending the criminal prosecution, if an indictment by a grand jury is returned or an information is filed against an officer for a crime involving official misconduct. Requires the application to include a statement of criminal charges for the officer, a statement of the facts that support the finding that suspension of the officer is in the public's best interest, and a request that the officer be temporarily suspended from office and enjoined from performing official duties pending criminal prosecution. Requires a certified copy of the indictment to be attached to the application. Requires the judge to order the clerk of the court to issue a citation and a certified copy of the application to be served on the officer. Sets forth requirement for appearance of the officer as ordered by the court. Requires the court to proceed with the suspension hearing as provided by Subchapter B. Requires the court to reinstate an officer suspended under this section if the officer is acquitted of all charges. SECTION 13. Emergency clause. Effective date: 90 days after adjournment. SUMMARY OF COMMITTEE CHANGES Amends SECTION 3, Section 87.013, Local Government Code, to provide that conduct constitutes a felony offense under certain laws, rather than conduct involving misdemeanor or felony offenses under certain laws is grounds for removal for an officer. Amends SECTION 4, Section 87.015, Local Government Code, to require that a removal petition may be filed by an attorney authorized to represent the state and any resident of the state who has never been convicted of a felony offense, rather than a resident who has been convicted of a misdemeanor or a felony offense. Requires a petition to identify each person filing the petition, excluding the attorney authorized to represent the state, as a relator, by deleting the proposed requirement that the petition identify the person filing the petition as a relator, if the petition is filed by a person other than the state. Amends SECTION 5, Section 87.0155, Local Government Code, to require the attorney representing the state to have exclusive control over the prosecution of an action for removal under this chapter, and authorizes the attorney to dismiss or refuse to file a petition for removal, based on the attorney's discretion. Amends SECTION 6, Section 87.016, Local Government Code, to require an attorney representing the state, rather than the person filing the petition, to make application in writing for an order requiring a citation and a certified copy of the petition to be served on the officer. Requires the judge to review the petition and to issue the order for citation, if the petition states a prima facie case for removal by deleting the proposed provision for the judge to issue the order of citation if the petition is filed by the state. Requires the petition to be dismissed at the cost of the relator, rather than the person filing the petition, if the judge refuses to issue the order for citation. Deletes the provision prohibiting a person from taking an appeal or writ of error from the judge's decision. Deletes the proposed text stating that if the judge grants the order for citation, the clerk is required to issue a citation with a certified copy of the petition to the defendant and a copy of the order for citation to each relator and the attorney representing the state. Requires the relator to post security costs in the manner provided for other cases, rather than the person filing the petition. Amends SECTION 8, Section 87.0161, Local Government Code, to require the judge appointed to the case under Section 87.0161, to make certain requirements of the officer. Requires the judge to enjoin the officer from official duties, if the judge finds after the hearing that suspension of the officer is in the public's best interest, rather than the proposed text ensuring the officer's orderly performance of his or her duties or the restoration of public confidence in the office. Amends SECTION 9, Section 87.0171, Local Government Code, to provide that a temporary suspension expires by operation of law on the 180th day after the date the removal proceeding is abated, if a removal proceeding is abated under this section. Authorizes the attorney representing the state to request a six-month suspension, after a certain period. Authorizes a judge to suspend the officer after a hearing, if certain conditions are met. Amends SECTION 12, Sections 87.031 and 87.033, Local Government Code, to require an office to become vacant unless an appeal is perfected, rather than filed and to require an application to include certain proposed information, including a statement of the facts that support the finding that suspension of the officer is in the public's best interest. Requires the court to reinstate an officer suspended under this section, if the officer is acquitted of all charges, by deleting proposed text.