Bill not drafted by TLC or Senate E&E.
Line and page numbers may not match official copy.
By Hinojosa H.B. No. 2287
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. Subchapter A, Chapter 87, Local Government Code,
1-5 is amended by amending Section 87.001 and adding Section 87.002 to
1-6 read as follows:
1-7 Sec. 87.001. No Removal for Prior Action. (a) Except as
1-8 provided by Subsection (b), an [An] officer may not be removed
1-9 under this chapter for an act the officer committed before election
1-10 to office.
1-11 (b) An officer may be removed under this chapter if the act
1-12 was unknown to the general public when the officer was elected to
1-13 the office.
1-14 Sec. 87.002. DURATION OF SUSPENSION. The suspension of an
1-15 officer under a section of this chapter remains in effect and may
1-16 not be enjoined until all removal actions under this chapter in
1-17 which the officer is a defendant are finally resolved.
1-18 SECTION 2. Sections 87.011 and 87.012, Local Government
1-19 Code, are transferred to Subchapter A, Chapter 87, Local Government
1-20 Code, are redesignated as Sections 87.003 and 87.004, Local
1-21 Government Code, and are amended to read as follows:
1-22 Sec. 87.003 [87.011]. Definitions. In this chapter
1-23 [subchapter]:
1-24 (1) "District attorney" includes a criminal district
2-1 attorney.
2-2 (2) "Incompetency" means:
2-3 (A) gross ignorance of official duties;
2-4 (B) gross carelessness in the discharge of those
2-5 duties; or
2-6 (C) unfitness or inability to promptly and
2-7 properly discharge official duties because of a serious physical or
2-8 mental defect that did not exist at the time of the officer's
2-9 election.
2-10 (3) "Official misconduct" means intentional, unlawful
2-11 behavior relating to official duties by an officer entrusted with
2-12 the administration of justice or the execution of the law. The
2-13 term includes an intentional or corrupt failure, refusal, or
2-14 neglect of an officer to perform a duty imposed on the officer by
2-15 law.
2-16 Sec. 87.004 [87.012]. Officers Subject to Removal. The
2-17 district judge may, under this chapter [subchapter], remove from
2-18 office:
2-19 (1) a district attorney;
2-20 (2) a county attorney;
2-21 (3) a county judge;
2-22 (4) a county commissioner;
2-23 (5) a county clerk;
2-24 (6) a district clerk;
2-25 (7) a district and county clerk;
2-26 (8) a county treasurer;
2-27 (9) a sheriff;
2-28 (10) a county surveyor;
2-29 (11) a county tax assessor-collector;
2-30 (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 felony offense under
3-14 the laws of the United States, in this state, or another state
3-15 [caused by drinking an alcoholic beverage].
3-16 (b) Public intoxication [Intoxication] is not a ground for
3-17 removal if it appears at the trial that the intoxication was caused
3-18 by a substance used [drinking an alcoholic beverage] on the
3-19 direction and prescription of a licensed physician practicing in
3-20 this state.
3-21 SECTION 4. Section 87.015, Local Government Code, is amended
3-22 to read as follows:
3-23 Sec. 87.015. PETITION FOR REMOVAL. (a) A proceeding for
3-24 the removal of an officer is begun by filing a written petition for
3-25 removal in a district court of the county in which the officer
3-26 resides. However, a proceeding for the removal of a district
3-27 attorney is begun by filing a written petition in a district court
3-28 of:
3-29 (1) the county in which the attorney resides; or
3-30 (2) the county where the alleged cause of removal
4-1 occurred, if that county is in the attorney's judicial district.
4-2 (b) A removal petition may be filed by:
4-3 (1) an attorney authorized to represent the state in a
4-4 removal proceeding; or
4-5 (2) any [Any] resident of this state who has lived
4-6 for at least six months in the county in which the petition is to
4-7 be filed, who has never been convicted of a felony offense, and who
4-8 is not currently under indictment [in the county may file the
4-9 petition].
4-10 (c) At least one of the parties who files a [the] petition
4-11 under Subsection (b)(2) must swear to it at or before the filing.
4-12 (d) [(c)] The petition must:
4-13 (1) be brought in the name of the state as plaintiff;
4-14 (2) identify the person filing the petition, excluding
4-15 the attorney authorized to represent the state, as a relator;
4-16 (3) identify as the defendant the officer to be
4-17 removed;
4-18 (4) [addressed to the district judge of the court in
4-19 which it is filed. The petition must] set forth the grounds
4-20 alleged for the removal of the officer in plain and intelligible
4-21 language; and
4-22 (5) [must] cite the time and place of the occurrence
4-23 of each act alleged as a ground for removal with as much certainty
4-24 as the nature of the case permits.
4-25 SECTION 5. Subchapter B, Chapter 87, Local Government Code,
4-26 is amended by adding Section 87.0155 to read as follows:
4-27 Sec. 87.0155. REPRESENTATION OF STATE. (a) Except as
4-28 otherwise provided by this section, the county attorney for the
4-29 county in which the officer holds office shall represent the state
4-30 in a proceeding for the removal of an officer under this chapter.
5-1 (b) In a proceeding to remove a county attorney from office,
5-2 the district attorney shall represent the state. If the county
5-3 does not have a district attorney, the county attorney from an
5-4 adjoining county, as selected by the commissioners court of the
5-5 county in which the proceeding is pending, shall represent the
5-6 state.
5-7 (c) In a proceeding to remove the county attorney or
5-8 district attorney from office, the county attorney from an
5-9 adjoining county, as selected by the commissioners court of the
5-10 county in which the proceeding is pending, shall represent the
5-11 state if the attorney who would otherwise represent the state under
5-12 this section is also the subject of a pending removal proceeding or
5-13 is otherwise unable to proceed with the removal.
5-14 (d) If an indictment or information is returned against an
5-15 officer in a county in which the petition for removal is filed and
5-16 the removal petition is based on substantially the same subject
5-17 matter as the criminal action, the attorney representing the state
5-18 in the criminal action shall represent the state in the removal
5-19 action unless the attorney representing the state in the criminal
5-20 action is disqualified from representing the state in the removal
5-21 action.
5-22 (e) The attorney representing the state has exclusive
5-23 control over the prosecution of an action for removal under this
5-24 chapter. Based on the attorney's discretion, the attorney may
5-25 dismiss or refuse to file a petition for removal.
5-26 SECTION 6. Section 87.016, Local Government Code, is amended
5-27 to read as follows:
5-28 Sec. 87.016. Citation of PARTIES [OFFICER]. (a) After a
5-29 petition for removal is filed and before citation may issue, the
5-30 attorney representing the state [person filing the petition] shall
6-1 apply in writing to the district judge to whom the case is assigned
6-2 [in writing] for an order requiring a citation and a certified copy
6-3 of the petition to be served on the officer.
6-4 (b) The judge shall review the petition, and if the petition
6-5 states a prima facie case for removal under this chapter, the judge
6-6 shall issue the order for citation. [If the application for the
6-7 order is made during the term of the court, action may not be taken
6-8 on the petition until the order is granted and entered in the
6-9 minutes of the court. If the application is made to the judge
6-10 during the vacation of the court, the judge shall indicate on the
6-11 petition the action taken and shall have the action entered in the
6-12 minutes of the court at the next term.]
6-13 [(c)] If the judge refuses to issue the order for citation,
6-14 the petition shall be dismissed at the cost of the relator [person]
6-15 filing the petition. [The person may not take an appeal or writ of
6-16 error from the judge's decision.]
6-17 (c) If the judge grants the order for citation, the judge
6-18 shall issue the order not later than the third day after the date
6-19 the application is submitted, and the clerk shall issue the
6-20 citation with a certified copy of the petition to the defendant and
6-21 a copy of the order for citation to each relator and the attorney
6-22 representing the state. The judge shall require the relator
6-23 [person filing the petition] to post security for costs in the
6-24 manner provided for other cases.
6-25 (d) The citation shall order the officer to appear and
6-26 answer the petition on a date, fixed by the judge, after the fifth
6-27 day and before the 21st day after the date the citation is served.
6-28 The time is computed as it is in other suits.
6-29 SECTION 7. Subchapter B, Chapter 87, Local Government Code,
6-30 is amended by adding Section 87.0161 to read as follows:
7-1 Sec. 87.0161. APPOINTMENT OF VISITING JUDGE. (a) If the
7-2 petition is not dismissed, the judge shall request the presiding
7-3 judge of the administrative region to assign another judge who is
7-4 not a resident of the county to dispose of the suit and shall take
7-5 no further action in the case.
7-6 (b) If the attorney for the state files a motion to dismiss
7-7 the case before the other judge is appointed, the judge ordering
7-8 service of citation may order the suit dismissed.
7-9 SECTION 8. Section 87.017, Local Government Code, is amended
7-10 to read as follows:
7-11 Sec. 87.017. Suspension Pending Trial; Temporary Appointee.
7-12 (a) After the issuance of the order requiring citation of the
7-13 officer, the district judge appointed to the case under Section
7-14 87.0161 shall order the officer to appear and show cause why the
7-15 officer should not be suspended from office during the pendency of
7-16 the removal suit. The judge shall [may] temporarily suspend the
7-17 officer and enjoin the officer from performing official duties if
7-18 the judge finds after the hearing that suspension of the officer is
7-19 in the public's best interest. If the judge suspends the officer,
7-20 the judge shall:
7-21 (1) terminate the officer's benefits, excluding salary
7-22 and insurance benefits, during the period of the suspension;
7-23 (2) [and may] appoint another person to perform the
7-24 duties of the office until the authority required by law to fill a
7-25 vacancy in the office appoints an officer as provided by this
7-26 section; and
7-27 (3) order the clerk of the court to serve a copy of
7-28 the order of suspension on:
7-29 (A) the authority required by law to fill a
7-30 vacancy in the office; and
8-1 (B) the county treasurer, if any, or the person
8-2 performing the duties of the county treasurer.
8-3 (b) On receipt of the order of suspension under Subsection
8-4 (a), the appointing authority shall appoint a person to perform
8-5 temporarily the duties of the suspended officer. The temporary
8-6 appointee shall perform the duties of the suspended officer until
8-7 the officer is removed from office, the removal action is
8-8 dismissed, the final judgment establishes the officer's right to
8-9 the office, or the office becomes vacant and is filled as provided
8-10 by law.
8-11 (c) The temporary appointee must possess the qualifications
8-12 required by law for the office. The county shall pay the temporary
8-13 appointee from the general fund of the county an amount equal to
8-14 the compensation received by the suspended officer. [The judge may
8-15 not suspend the officer until the person appointed to serve
8-16 executes a bond, with at least two good and sufficient sureties, in
8-17 an amount fixed by the judge and conditioned as required by the
8-18 judge. The bond shall be used to pay damages and costs to the
8-19 suspended officer if the grounds for removal are found at trial to
8-20 be insufficient or untrue. In an action to recover on the bond it
8-21 is necessary to allege and prove that the temporary appointee
8-22 actively aided and instigated the filing and prosecution of the
8-23 removal action. The suspended officer must also serve written
8-24 notice on the temporary appointee and the appointee's bondsman,
8-25 within 90 days after the date the bond is executed, stating that
8-26 the officer intends to hold them liable on the bond and stating the
8-27 grounds for that liability.]
8-28 (d) [(c)] If the removal action is dismissed or the final
8-29 judgment establishes the officer's right to the office, the court
8-30 that suspended the officer under Section 87.017 [county] shall
9-1 reinstate [pay] the officer and order that all benefits previously
9-2 terminated be restored retroactively from the date of suspension
9-3 [from the general fund of the county an amount equal to the
9-4 compensation received by the temporary appointee].
9-5 SECTION 9. Subchapter B, Chapter 87, Local Government Code,
9-6 is amended by adding Section 87.0171 to read as follows:
9-7 Sec. 87.0171. ABATEMENT OF PROCEEDINGS PENDING CRIMINAL
9-8 PROSECUTION. (a) If a criminal prosecution is pending against the
9-9 officer for an act that is the basis for a ground for removal under
9-10 this subchapter, the judge in the removal action may abate the
9-11 proceedings under this subchapter, excluding the issuance of a
9-12 citation under Section 87.016 and the temporary suspension under
9-13 Section 87.017, until:
9-14 (1) the criminal charges against the officer are
9-15 dismissed;
9-16 (2) the court accepts a plea of guilty or nolo
9-17 contendere entered by the officer; or
9-18 (3) the trier of fact enters a verdict.
9-19 (b) If a removal proceeding is abated under this section, a
9-20 temporary suspension under Section 87.017 expires by operation of
9-21 law on the 180th day after the date the removal proceeding is
9-22 abated.
9-23 (c) After the 150th day after the date a removal proceeding
9-24 is abated under this section, the attorney representing the state
9-25 may request an additional six-month suspension. After a hearing,
9-26 the judge may suspend the officer for an additional six-month
9-27 period if the judge finds that the state has been diligent in its
9-28 criminal prosecution of the officer and that the suspension of the
9-29 officer is in the public's best interest.
9-30 SECTION 10. Section 87.018, Local Government Code, is
10-1 amended to read as follows:
10-2 Sec. 87.018. Trial. (a) Except as provided by this
10-3 subsection, an officer [Officers] may be removed only following a
10-4 trial by jury. An officer may be removed without a trial by jury
10-5 if the officer, with the written consent of the state and the
10-6 judge, files with the court a written waiver of the officer's right
10-7 to a trial by jury.
10-8 (b) The trial for removal of an officer and the proceedings
10-9 connected with the trial shall be conducted as much as possible in
10-10 accordance with the rules and practice of the court in other civil
10-11 cases[, in the name of the State of Texas, and on the relation of
10-12 the person filing the petition].
10-13 (c) In a removal case tried before a jury, the judge may not
10-14 submit special issues to the jury. Under a proper charge
10-15 applicable to the facts of the case, the judge shall instruct the
10-16 jury to find from the evidence whether the grounds for removal
10-17 alleged in the petition are true. If the petition alleges more
10-18 than one ground for removal, the jury shall indicate in the
10-19 verdict, and the judge shall indicate in the judgment, which
10-20 grounds are sustained by the evidence and which are not sustained.
10-21 In a case tried before the court, the judge shall indicate in the
10-22 judgment which grounds are sustained by the evidence and which
10-23 grounds are not sustained.
10-24 [(d) The county attorney shall represent the state in a
10-25 proceeding for the removal of an officer except as otherwise
10-26 provided by Subsection (e) or (f).]
10-27 [(e) In a proceeding to remove a county attorney from
10-28 office, the district attorney shall represent the state. If the
10-29 county does not have a district attorney, the county attorney from
10-30 an adjoining county, as selected by the commissioners court of the
11-1 county in which the proceeding is pending, shall represent the
11-2 state.]
11-3 [(f) In a proceeding to remove the county attorney or
11-4 district attorney from office, the county attorney from an
11-5 adjoining county, as selected by the commissioners court of the
11-6 county in which the proceeding is pending, shall represent the
11-7 state if the attorney who would otherwise represent the state under
11-8 this section is also the subject of a pending removal proceeding.]
11-9 SECTION 11. Section 87.019, Local Government Code, is
11-10 amended to read as follows:
11-11 Sec. 87.019. NEW TRIAL OR APPEAL. (a) A [Either] party to
11-12 a removal action other than the state may move for a new trial or
11-13 appeal the final judgment to the court of appeals in the manner
11-14 provided for other civil cases. The state must file a motion for
11-15 new trial or perfect its appeal not later than the 10th day after
11-16 the date the court enters its written judgment. The trial court by
11-17 order shall expedite the preparation of all documents, including
11-18 transcripts, required for an appeal under this section. If the
11-19 officer has not been suspended from office, the officer is not
11-20 required to post an appeal bond but may be required to post a bond
11-21 for costs.
11-22 (b) The court of appeals shall accelerate an appeal under
11-23 this section. The [An] appeal [of a removal action] takes
11-24 precedence over the ordinary business of the court of appeals and
11-25 shall be decided with all convenient dispatch. If the trial court
11-26 judgment is not set aside or suspended, the appellate court [of
11-27 appeals] shall issue its mandate in the case within five days after
11-28 the date the court renders its judgment.
11-29 SECTION 12. Subchapter C, Local Government Code, is amended
11-30 by amending Sections 87.031 and 87.032 and adding Section 87.033 to
12-1 read as follows:
12-2 Sec. 87.031. Immediate Removal. (a) In a court of record,
12-3 the entry of a plea of guilty or nolo contendere by a county
12-4 officer or a verdict of guilty by a petit jury, or if the officer
12-5 has waived a trial by jury, the entry of a finding of guilt of the
12-6 officer by the court [The conviction of a county officer by a petit
12-7 jury] for any felony or for a misdemeanor involving official
12-8 misconduct operates as an immediate removal from office of that
12-9 officer and the office becomes vacant unless an appeal is
12-10 perfected.
12-11 (b) The court rendering judgment in such a case shall
12-12 include an order documenting the removal of [removing] the officer
12-13 in the judgment.
12-14 Sec. 87.032. Appeal[; SUSPENSION]. If the officer appeals
12-15 the judgment, the [appeal supersedes the] order of removal remains
12-16 in effect [unless the court that renders the judgment finds that it
12-17 is in the public interest to suspend the officer] pending the
12-18 appeal. [If the court finds that the public interest requires
12-19 suspension, the court shall suspend the officer as provided by this
12-20 subchapter.]
12-21 Sec. 87.033. SUSPENSION FOLLOWING INDICTMENT FOR CRIMINAL
12-22 OFFENSE. (a) If an indictment by a grand jury of this state,
12-23 another state, or the United States is returned or an information
12-24 is filed in a court of this state, another state or the United
12-25 States against an officer for a felony offense or for a misdemeanor
12-26 offense involving official misconduct, a district or county
12-27 attorney for the county in which the officer holds office may apply
12-28 in writing to a district judge of that county for an order to
12-29 temporarily suspend the officer pending the criminal prosecution.
12-30 (b) The application must include a statement that the
13-1 officer has been charged with a felony offense or with a
13-2 misdemeanor offense involving official misconduct and request that
13-3 the officer be temporarily suspended from office and enjoined from
13-4 performing official duties pending the criminal prosecution. A
13-5 certified copy of the indictment or information must be attached to
13-6 the application.
13-7 (c) After receiving the application, the judge shall order
13-8 the clerk of the court to issue a citation and a certified copy of
13-9 the application to be served on the officer. The court shall order
13-10 the officer to appear on a date, fixed by the judge, after the
13-11 fifth day and before the 21st day after the date the citation is
13-12 served.
13-13 (d) The court shall proceed with the suspension hearing
13-14 under this section in the manner provided by Subchapter B.
13-15 (e) The court shall reinstate an officer suspended under
13-16 this section if the officer is acquitted of all charges on which
13-17 the suspension was based.
13-18 SECTION 13. The importance of this legislation and the
13-19 crowded condition of the calendars in both houses create an
13-20 emergency and an imperative public necessity that the
13-21 constitutional rule requiring bills to be read on three several
13-22 days in each house be suspended, and this rule is hereby suspended.