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.