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.