By:  Lucio                                    S.B. No. 252

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to removal of county officers from office.

 1-2           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-3           SECTION 1.  Sections 87.011 and 87.012, Local Government

 1-4     Code, are transferred to Subchapter A, Chapter 87, Local Government

 1-5     Code, are redesignated as Sections 87.003 and 87.004, Local

 1-6     Government Code, and are amended to read as follows:

 1-7           Sec. 87.003 [87.011].  Definitions.  In this chapter

 1-8     [subchapter]:

 1-9                 (1)  "District attorney" includes a criminal district

1-10     attorney.

1-11                 (2)  "Incompetency" means:

1-12                       (A)  gross ignorance of official duties;

1-13                       (B)  gross carelessness in the discharge of those

1-14     duties; or

1-15                       (C)  unfitness or inability to promptly and

1-16     properly discharge official duties because of a serious physical or

1-17     mental defect that did not exist at the time of the officer's

1-18     election.

1-19                 (3)  "Official misconduct" means intentional, unlawful

1-20     behavior relating to official duties by an officer entrusted with

1-21     the administration of justice or the execution of the law.  The

1-22     term includes an intentional or corrupt failure, refusal, or

1-23     neglect of an officer to perform a duty imposed on the officer by

 2-1     law.

 2-2           Sec. 87.004 [87.012].  Officers Subject to Removal.  The

 2-3     district judge may, under this chapter [subchapter], remove from

 2-4     office:

 2-5                 (1)  a district attorney;

 2-6                 (2)  a county attorney;

 2-7                 (3)  a county judge;

 2-8                 (4)  a county commissioner;

 2-9                 (5)  a county clerk;

2-10                 (6)  a district clerk;

2-11                 (7)  a district and county clerk;

2-12                 (8)  a county treasurer;

2-13                 (9)  a sheriff;

2-14                 (10)  a county surveyor;

2-15                 (11)  a county tax assessor-collector;

2-16                 (12)  a constable;

2-17                 (13)  an inspector of hides and animals;

2-18                 (14)  a justice of the peace; and

2-19                 (15)  a county officer, not otherwise named by this

2-20     section, whose office is created under the constitution or other

2-21     law of this state.

2-22           SECTION 2.  Section 87.013, Local Government Code, is amended

2-23     to read as follows:

2-24           Sec. 87.013.  GENERAL GROUNDS FOR REMOVAL.  (a)  An officer

2-25     may be removed for:

 3-1                 (1)  incompetency;

 3-2                 (2)  official misconduct; [or]

 3-3                 (3)  public intoxication on or off duty; or

 3-4                 (4)  conduct that constitutes a felony offense under

 3-5     the laws of the United States, this state, or another state [caused

 3-6     by drinking an alcoholic beverage].

 3-7           (b)  Public intoxication [Intoxication] is not a ground for

 3-8     removal if it appears at the trial that the intoxication was caused

 3-9     by a substance used [drinking an alcoholic beverage] on the

3-10     direction and prescription of a licensed physician practicing in

3-11     this state.

3-12           SECTION 3.  Section 87.015, Local Government Code, is amended

3-13     to read as follows:

3-14           Sec. 87.015.  Petition for Removal.  (a)  A proceeding for

3-15     the removal of an officer is begun by filing a written petition for

3-16     removal in a district court of the county in which the officer

3-17     resides.  However, a proceeding for the removal of a district

3-18     attorney is begun by filing a written petition in a district court

3-19     of:

3-20                 (1)  the county in which the attorney resides; or

3-21                 (2)  the county where the alleged cause of removal

3-22     occurred, if that county is in the attorney's judicial district.

3-23           (b)  A removal petition must be filed by:

3-24                 (1)  an attorney authorized to represent the state in a

3-25     removal proceeding; and

 4-1                 (2)  any [Any] resident of this state who has lived for

 4-2     at least six months in the county in which the petition is to be

 4-3     filed, who has never been convicted of a felony offense, and who is

 4-4     not currently under indictment in the county [may file the

 4-5     petition].

 4-6           (c)  At least one of the parties who files a [the] petition

 4-7     under Subsection (b)(2) must swear to it at or before the filing.

 4-8           (d) [(c)]  The petition must:

 4-9                 (1)  be brought in the name of the state as plaintiff;

4-10                 (2)  identify each person filing the petition,

4-11     excluding the attorney authorized to represent the state, as a

4-12     relator;

4-13                 (3)  identify as the defendant the officer to be

4-14     removed;

4-15                 (4)  [addressed to the district judge of the court in

4-16     which it is filed.  The petition must] set forth the grounds

4-17     alleged for the removal of the officer in plain and intelligible

4-18     language; and

4-19                 (5)  [must] cite the time and place of the occurrence

4-20     of each act alleged as a ground for removal with as much certainty

4-21     as the nature of the case permits.

4-22           SECTION 4.  Subchapter B, Chapter 87, Local Government Code,

4-23     is amended by adding Section 87.0155 to read as follows:

4-24           Sec. 87.0155.  REPRESENTATION BY THE STATE.  (a)  Except as

4-25     otherwise provided by this section, the county attorney for the

 5-1     county in which the officer holds office shall represent the state

 5-2     in a proceeding for the removal of an officer under this chapter.

 5-3           (b)  In a proceeding to remove a county attorney from office,

 5-4     the district attorney shall represent the state.  If the county

 5-5     does not have a district attorney, the county attorney from an

 5-6     adjoining county, as selected by the commissioners court of the

 5-7     county in which the proceeding is pending, shall represent the

 5-8     state.

 5-9           (c)  In a proceeding to remove the county attorney or

5-10     district attorney from office, the county attorney from an

5-11     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 if the attorney who would otherwise represent the state under

5-14     this section is also the subject of a pending removal proceeding.

5-15           (d)  If an indictment or information is returned against an

5-16     officer in a county in which the petition for removal is filed and

5-17     the removal petition is based on substantially the same subject

5-18     matter as the criminal action, the attorney representing the state

5-19     in the criminal action shall represent the state in the removal

5-20     action unless the attorney representing the state in the criminal

5-21     action is disqualified from representing the state in the removal

5-22     action.

5-23           (e)  The attorney representing the state has exclusive

5-24     control over the prosecution of an action for removal under this

5-25     chapter.  Based on the attorney's discretion, the attorney may

 6-1     dismiss or refuse to file a petition for removal.

 6-2           SECTION 5.  Section 87.016, Local Government Code, is amended

 6-3     to read as follows:

 6-4           Sec. 87.016.  CITATION OF PARTIES [OFFICER].  (a)  After a

 6-5     petition for removal is filed and before citation may issue, the

 6-6     attorney representing the state [person filing the petition] shall

 6-7     apply in writing to the visiting [district] judge to whom the case

 6-8     is assigned [in writing] for an order requiring a citation and a

 6-9     certified copy of the petition to be served on the officer.

6-10           (b)  The judge shall review the petition, and if the petition

6-11     states a prima facie case for removal under this chapter, the judge

6-12     shall issue the order for citation.  [If the application for the

6-13     order is made during the term of the court, action may not be taken

6-14     on the petition until the order is granted and entered in the

6-15     minutes of the court.  If the application is made to the judge

6-16     during the vacation of the court, the judge shall indicate on the

6-17     petition the action taken and shall have the action entered in the

6-18     minutes of the court at the next term.]

6-19           [(c)]  If the judge refuses to issue the order for citation,

6-20     the petition shall be dismissed at the cost of the relator [person]

6-21     filing the petition.  [The person may not take an appeal or writ of

6-22     error from the judge's decision.]

6-23           (c)  If the judge grants the order for citation, the judge

6-24     shall issue the order not later than the third day after the date

6-25     the application is submitted, and the clerk shall issue the

 7-1     citation with a certified copy of the petition to the defendant and

 7-2     a copy of the order for citation to each relator and the attorney

 7-3     representing the state.  The judge shall require the relator

 7-4     [person filing the petition] to post security for costs in the

 7-5     manner provided for other cases.

 7-6           (d)  The citation shall order the officer to appear and

 7-7     answer the petition on a date, fixed by the judge, after the fifth

 7-8     day and before the 21st day after the date the citation is served.

 7-9     The time is computed as it is in other suits.

7-10           SECTION 6.  Subchapter B, Chapter 87, Local Government Code,

7-11     is amended by adding Section 87.0161 to read as follows:

7-12           Sec. 87.0161.  APPOINTMENT OF VISITING JUDGE.  (a)  If the

7-13     petition is not dismissed, the judge shall request the presiding

7-14     judge of the court to assign another judge who is not a resident of

7-15     the county to dispose of the suit and shall take no further action

7-16     in the case.

7-17           (b)  If the attorney for the state files a motion to dismiss

7-18     the case before the other judge is appointed, a district judge of

7-19     the county in which the petition is filed may order the suit

7-20     dismissed.

7-21           SECTION 7.  Section 87.017, Local Government Code, is amended

7-22     to read as follows:

7-23           Sec. 87.017.  SUSPENSION PENDING TRIAL; TEMPORARY APPOINTEE.

7-24     (a)  After the issuance of the order requiring citation of the

7-25     officer, the visiting [district] judge appointed to the case under

 8-1     Section 87.0161 shall order the officer to appear and show cause

 8-2     why the officer should not be suspended from office during the

 8-3     pendency of the removal suit.  The judge shall [may] temporarily

 8-4     suspend the officer and enjoin the officer from performing official

 8-5     duties if the judge finds after the hearing that suspension of the

 8-6     officer is in the public's best interest.  If the judge suspends

 8-7     the officer, the judge shall:

 8-8                 (1)  terminate the officer's benefits, excluding salary

 8-9     and insurance benefits, during the period of the suspension;

8-10                 (2)  [and may] appoint another person to perform the

8-11     duties of the office until the authority required by law to fill a

8-12     vacancy in the office appoints an officer as provided by this

8-13     section; and

8-14                 (3)  order the clerk of the court to serve a copy of

8-15     the order of suspension on:

8-16                       (A)  the authority required by law to fill a

8-17     vacancy in the office; and

8-18                       (B)  the county treasurer, if any, or the person

8-19     performing the duties of the county treasurer.

8-20           (b)  On receipt of the order of suspension under Subsection

8-21     (a), the appointing authority shall appoint a person to perform

8-22     temporarily the duties of the suspended officer.  The temporary

8-23     appointee shall perform the duties of the suspended officer until

8-24     the officer is removed from office, the removal action is

8-25     dismissed, the final judgment establishes the officer's right to

 9-1     the office, or the office becomes vacant and is filled as provided

 9-2     by law.

 9-3           (c)  The temporary appointee must possess the qualifications

 9-4     required by law for the office.  The county shall pay the temporary

 9-5     appointee from the general fund of the county an amount equal to

 9-6     the compensation received by the suspended officer [The judge may

 9-7     not suspend the officer until the person appointed to serve

 9-8     executes a bond, with at least two good and sufficient sureties, in

 9-9     an amount fixed by the judge and conditioned as required by the

9-10     judge.  The bond shall be used to pay damages and costs to the

9-11     suspended officer if the grounds for removal are found at trial to

9-12     be insufficient or untrue.  In an action to recover on the bond it

9-13     is necessary to allege and prove that the temporary appointee

9-14     actively aided and instigated the filing and prosecution of the

9-15     removal action.  The suspended officer must also serve written

9-16     notice on the temporary appointee and the appointee's bondsman,

9-17     within 90 days after the date the bond is executed, stating that

9-18     the officer intends to hold them liable on the bond and stating the

9-19     grounds for that liability].

9-20           (d) [(c)]  If the removal action is dismissed or the final

9-21     judgment establishes the officer's right to the office, the county

9-22     shall reinstate [pay] the officer [from the general fund of the

9-23     county an amount equal to the compensation received by the

9-24     temporary appointee].

9-25           (e)  An officer who has been temporarily suspended under this

 10-1    chapter shall be entitled to an interlocutory appeal of the

 10-2    suspension order.

 10-3          SECTION 8.  Subchapter B, Chapter 87, Local Government Code,

 10-4    is amended by adding Section 87.0171 to read as follows:

 10-5          Sec. 87.0171.  ABATEMENT OF PROCEEDINGS PENDING CRIMINAL

 10-6    PROSECUTION.  (a)  If a criminal prosecution is pending against the

 10-7    officer for an act that is the basis for a ground for removal under

 10-8    this subchapter, the judge in the removal action may abate the

 10-9    proceedings under this subchapter, excluding the issuance of a

10-10    citation under Section 87.016 and the temporary suspension under

10-11    Section 87.017, until:

10-12                (1)  the criminal charges against the officer are

10-13    dismissed;

10-14                (2)  the court accepts a plea of guilty or nolo

10-15    contendere entered by the officer; or

10-16                (3)  the trier of fact enters a verdict.

10-17          (b)  If a removal proceeding is abated under this section, a

10-18    temporary suspension under Section 87.017 expires by operation of

10-19    law on the 180th day after the date the removal proceeding is

10-20    abated.

10-21          (c)  After the 150th day after the date a removal proceeding

10-22    is abated under this section, the attorney representing the state

10-23    may request an additional six-month suspension.  After a hearing,

10-24    the judge may suspend the officer for an additional six-month

10-25    period if the judge finds that the state has been diligent in its

 11-1    criminal prosecution of the officer and that the suspension of the

 11-2    officer is in the public's best interest.

 11-3          SECTION 9.  Section 87.018, Local Government Code, is amended

 11-4    to read as follows:

 11-5          Sec. 87.018.  TRIAL.  (a)  Except as provided by this

 11-6    subsection, an officer [Officers] may be removed only following a

 11-7    trial by jury.  An officer may be removed without a trial by jury

 11-8    if the officer, with the written consent of the state and the

 11-9    judge, files with the court a written waiver of the officer's right

11-10    to a trial by jury.

11-11          (b)  The trial for removal of an officer and the proceedings

11-12    connected with the trial shall be conducted as much as possible in

11-13    accordance with the rules and practice of the court in other civil

11-14    cases[, in the name of the State of Texas, and on the relation of

11-15    the person filing the petition].

11-16          (c)  In a removal case tried before a jury, the judge may not

11-17    submit special issues to the jury.  Under a proper charge

11-18    applicable to the facts of the case, the judge shall instruct the

11-19    jury to find from the evidence whether the grounds for removal

11-20    alleged in the petition are true.  If the petition alleges more

11-21    than one ground for removal, the jury shall indicate in the

11-22    verdict, and the judge shall indicate in the judgment, which

11-23    grounds are sustained by the evidence and which are not sustained.

11-24    In a case tried before the court, the judge shall indicate in the

11-25    judgment which grounds are sustained by the evidence and which

 12-1    grounds are not sustained.

 12-2          [(d)  The county attorney shall represent the state in a

 12-3    proceeding for the removal of an officer except as otherwise

 12-4    provided by Subsection (e) or (f).]

 12-5          [(e)  In a proceeding to remove a county attorney from

 12-6    office, the district attorney shall represent the state.  If the

 12-7    county does not have a district attorney, the county attorney from

 12-8    an adjoining county, as selected by the commissioners court of the

 12-9    county in which the proceeding is pending, shall represent the

12-10    state.]

12-11          [(f)  In a proceeding to remove the county attorney or

12-12    district attorney from office, the county attorney from an

12-13    adjoining county, as selected by the commissioners court of the

12-14    county in which the proceeding is pending, shall represent the

12-15    state if the attorney who would otherwise represent the state under

12-16    this section is also the subject of a pending removal proceeding.]

12-17          SECTION 10.  Section 87.019, Local Government Code, is

12-18    amended to read as follows:

12-19          Sec. 87.019.  New Trial or Appeal.  (a)  A [Either] party to

12-20    a removal action other than the state may move for a new trial or

12-21    appeal the final judgment to the court of appeals in the manner

12-22    provided for other civil cases.  The state must file a motion for

12-23    new trial or perfect its appeal not later than the 10th day after

12-24    the date the court enters its written judgment.  The trial court by

12-25    order shall expedite the preparation of all documents, including

 13-1    transcripts, required for an appeal under this section.  If the

 13-2    officer has not been suspended from office, the officer is not

 13-3    required to post an appeal bond but may be required to post a bond

 13-4    for costs.

 13-5          (b)  The court of appeals shall accelerate an appeal under

 13-6    this section.  The [An] appeal [of a removal action] takes

 13-7    precedence over the ordinary business of the court of appeals and

 13-8    shall be decided with all convenient dispatch.  If the trial court

 13-9    judgment is not set aside or suspended, the appellate court [of

13-10    appeals] shall issue its mandate in the case within five days after

13-11    the date the court renders its judgment.

13-12          SECTION 11.  Subchapter C, Local Government Code, is amended

13-13    by amending Sections 87.031 and 87.032 and adding Section 87.033 to

13-14    read as follows:

13-15          Sec. 87.031.  Immediate Removal.  (a)  In a court of record,

13-16    the entry of a plea of guilty or nolo contendere by a county

13-17    officer or a verdict of guilty by a petit jury or, if the officer

13-18    has waived a trial by jury, the entry of a finding of guilt of the

13-19    officer by the court [The conviction of a county officer by a petit

13-20    jury] for any felony or for a misdemeanor involving official

13-21    misconduct operates as an immediate removal from office of that

13-22    officer and the office becomes vacant unless an appeal is

13-23    perfected.

13-24          (b)  The court rendering judgment in such a case shall

13-25    include an order documenting the removal of [removing] the officer

 14-1    in the judgment.

 14-2          Sec. 87.032.  APPEAL[; SUSPENSION].  If the officer appeals

 14-3    the judgment, the [appeal supersedes the] order of removal remains

 14-4    in effect [unless the court that renders the judgment finds that it

 14-5    is in the public interest to suspend the officer] pending the

 14-6    appeal.  [If the court finds that the public interest requires

 14-7    suspension, the court shall suspend the officer as provided by this

 14-8    subchapter.]

 14-9          Sec. 87.033.  SUSPENSION FOLLOWING INDICTMENT FOR CRIMINAL

14-10    OFFENSE.  (a)  If an indictment by a grand jury of this state,

14-11    another state, or the United States is returned or an information

14-12    is filed in a court of this state, another state, or the United

14-13    States against an officer for a felony offense or for a misdemeanor

14-14    offense involving official misconduct, a district or county

14-15    attorney for the county in which the officer holds office.

14-16    Sections 87.016, 87.0161, and 87.017 shall govern in a motion for

14-17    an order of temporary suspension under this section.

14-18          (b)  The motion for temporary suspension must include a

14-19    statement that the officer has been charged with a felony offense

14-20    or with a misdemeanor offense involving official misconduct, a

14-21    statement of the facts that support the finding that suspension of

14-22    the officer is in the public's best interest, and a request that

14-23    the officer be temporarily suspended from office and enjoined from

14-24    performing official duties pending the criminal prosecution.  A

14-25    certified copy of the indictment or information must be attached to

 15-1    the application.

 15-2          (c)  After receiving the application, the judge shall order

 15-3    the clerk of the court to issue a citation and a certified copy of

 15-4    the application to be served on the officer.  The court shall order

 15-5    the officer to appear on a date, fixed by the judge, after the

 15-6    fifth day and before the 21st day after the date the citation is

 15-7    served.

 15-8          (d)  An order of temporary suspension issued under this

 15-9    section shall automatically expire on the dismissal of the

15-10    indictment or information or on acquittal of the charges on which

15-11    the suspension was based.

15-12          (e)  The court shall reinstate an officer suspended under

15-13    this section if the officer is acquitted of all charges on which

15-14    the suspension was based.

15-15          SECTION 12.  The importance of this legislation and the

15-16    crowded condition of the calendars in both houses create an

15-17    emergency and an imperative public necessity that the

15-18    constitutional rule requiring bills to be read on three several

15-19    days in each house be suspended, and this rule is hereby suspended.