By Lucio S.B. No. 252
75R3791 PAM-D
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;
3-1 (10) a county surveyor;
3-2 (11) a county tax assessor-collector;
3-3 (12) a constable;
3-4 (13) an inspector of hides and animals;
3-5 (14) a justice of the peace; and
3-6 (15) a county officer, not otherwise named by this
3-7 section, whose office is created under the constitution or other
3-8 law of this state.
3-9 SECTION 3. Section 87.013, Local Government Code, is amended
3-10 to read as follows:
3-11 Sec. 87.013. GENERAL GROUNDS FOR REMOVAL. (a) An officer
3-12 may be removed for:
3-13 (1) incompetency;
3-14 (2) official misconduct; [or]
3-15 (3) public intoxication on or off duty; or
3-16 (4) conduct that constitutes a misdemeanor offense
3-17 involving moral turpitude or a felony offense under the laws of the
3-18 United States, this state, or another state [caused by drinking an
3-19 alcoholic beverage].
3-20 (b) Public intoxication [Intoxication] is not a ground for
3-21 removal if it appears at the trial that the intoxication was caused
3-22 by a substance used [drinking an alcoholic beverage] on the
3-23 direction and prescription of a licensed physician practicing in
3-24 this state.
3-25 SECTION 4. Section 87.015, Local Government Code, is amended
3-26 to read as follows:
3-27 Sec. 87.015. Petition for Removal. (a) A proceeding for
4-1 the removal of an officer is begun by filing a written petition for
4-2 removal in a district court of the county in which the officer
4-3 resides. However, a proceeding for the removal of a district
4-4 attorney is begun by filing a written petition in a district court
4-5 of:
4-6 (1) the county in which the attorney resides; or
4-7 (2) the county where the alleged cause of removal
4-8 occurred, if that county is in the attorney's judicial district.
4-9 (b) A removal petition may be filed by:
4-10 (1) an attorney authorized to represent the state in a
4-11 removal proceeding; or
4-12 (2) any [Any] resident of this state who has lived for
4-13 at least six months in the county in which the petition is to be
4-14 filed, who has never been convicted of a misdemeanor offense
4-15 involving moral turpitude or a felony offense, and who is not
4-16 currently under indictment in the county [may file the petition].
4-17 (c) At least one of the parties who files a [the] petition
4-18 under Subsection (b)(2) must swear to it at or before the filing.
4-19 (d) [(c)] The petition must:
4-20 (1) be brought in the name of the state as plaintiff;
4-21 (2) identify the person filing the petition as a
4-22 relator if the petition is filed by a person other than the state;
4-23 (3) identify as the defendant the officer to be
4-24 removed;
4-25 (4) [addressed to the district judge of the court in
4-26 which it is filed. The petition must] set forth the grounds
4-27 alleged for the removal of the officer in plain and intelligible
5-1 language; and
5-2 (5) [must] cite the time and place of the occurrence
5-3 of each act alleged as a ground for removal with as much certainty
5-4 as the nature of the case permits.
5-5 SECTION 5. Subchapter B, Chapter 87, Local Government Code,
5-6 is amended by adding Section 87.0155 to read as follows:
5-7 Sec. 87.0155. REPRESENTATION OF STATE. (a) Except as
5-8 otherwise provided by this section, the county attorney for the
5-9 county in which the officer holds office shall represent the state
5-10 in a proceeding for the removal of an officer under this chapter.
5-11 (b) In a proceeding to remove a county attorney from office,
5-12 the district attorney shall represent the state. If the county
5-13 does not have a district attorney, the county attorney from an
5-14 adjoining county, as selected by the commissioners court of the
5-15 county in which the proceeding is pending, shall represent the
5-16 state.
5-17 (c) In a proceeding to remove the county attorney or
5-18 district attorney from office, the county attorney from an
5-19 adjoining county, as selected by the commissioners court of the
5-20 county in which the proceeding is pending, shall represent the
5-21 state if the attorney who would otherwise represent the state under
5-22 this section is also the subject of a pending removal proceeding.
5-23 (d) If an indictment or information is returned against an
5-24 officer in a county in which the petition for removal is filed and
5-25 the removal petition is based on substantially the same subject
5-26 matter as the criminal action, the attorney representing the state
5-27 in the criminal action shall represent the state in the removal
6-1 action unless the attorney representing the state in the criminal
6-2 action is disqualified from representing the state in the removal
6-3 action.
6-4 SECTION 6. Section 87.016, Local Government Code, is amended
6-5 to read as follows:
6-6 Sec. 87.016. CITATION OF PARTIES [OFFICER]. (a) After a
6-7 petition for removal is filed and before citation may issue, the
6-8 person filing the petition shall apply in writing to the district
6-9 judge to whom the case is assigned [in writing] for an order
6-10 requiring a citation and a certified copy of the petition to be
6-11 served on the officer.
6-12 (b) If the petition is filed by the state, the judge shall
6-13 issue the order of citation as requested in the application. [If
6-14 the application for the order is made during the term of the court,
6-15 action may not be taken on the petition until the order is granted
6-16 and entered in the minutes of the court. If the application is
6-17 made to the judge during the vacation of the court, the judge shall
6-18 indicate on the petition the action taken and shall have the action
6-19 entered in the minutes of the court at the next term.]
6-20 (c) If the petition is filed by a person other than the
6-21 state, the judge may refuse to issue the order of citation. If the
6-22 judge refuses to issue the order for citation, the petition shall
6-23 be dismissed at the cost of the person filing the petition. The
6-24 person may not take an appeal or writ of error from the judge's
6-25 decision.
6-26 (d) If the judge grants the order for citation, the judge
6-27 shall issue the order not later than the third day after the date
7-1 the application is submitted, and the clerk shall issue the
7-2 citation with a certified copy of the petition to the defendant
7-3 and, if the application is submitted by a person other than the
7-4 state, a copy of the order for citation and a certified copy of the
7-5 petition to the attorney designated to represent the state under
7-6 this chapter. The judge shall require the person other than the
7-7 state filing the petition to post security for costs in the manner
7-8 provided for other cases.
7-9 (e) [(d)] The citation shall order the officer to appear and
7-10 answer the petition on a date, fixed by the judge, after the fifth
7-11 day and before the 21st day after the date the citation is served.
7-12 The time is computed as it is in other suits.
7-13 SECTION 7. Subchapter B, Chapter 87, Local Government Code,
7-14 is amended by adding Section 87.0161 to read as follows:
7-15 Sec. 87.0161. APPOINTMENT OF VISITING JUDGE. (a) If the
7-16 petition is not dismissed, the judge shall request the presiding
7-17 judge of the court to assign another judge who is not a resident of
7-18 the county to dispose of the suit and shall take no further action
7-19 in the case.
7-20 (b) If the attorney for the state files a motion to dismiss
7-21 the case before the other judge is appointed, the judge ordering
7-22 service of citation may order the suit dismissed.
7-23 SECTION 8. Section 87.017, Local Government Code, is amended
7-24 to read as follows:
7-25 Sec. 87.017. SUSPENSION PENDING TRIAL; TEMPORARY APPOINTEE.
7-26 (a) After the issuance of the order requiring citation of the
7-27 officer, the district judge appointed to the case shall order the
8-1 officer to appear and show cause why the officer should not be
8-2 suspended from office during the pendency of the removal suit. The
8-3 judge shall [may] temporarily suspend the officer and enjoin the
8-4 officer from performing official duties if the judge finds after
8-5 the hearing that suspension of the officer is necessary to ensure
8-6 orderly performance of the duties of the office or to restore
8-7 public confidence in the office. If the judge suspends the
8-8 officer, the judge shall:
8-9 (1) terminate the officer's benefits, excluding salary
8-10 and insurance benefits, during the period of the suspension;
8-11 (2) [and may] appoint another person to perform the
8-12 duties of the office until the authority required by law to fill a
8-13 vacancy in the office appoints an officer as provided by this
8-14 section; and
8-15 (3) order the clerk of the court to serve a copy of
8-16 the order of suspension on:
8-17 (A) the authority required by law to fill a
8-18 vacancy in the office; and
8-19 (B) the county treasurer, if any, or the person
8-20 performing the duties of the county treasurer.
8-21 (b) On receipt of the order of suspension under Subsection
8-22 (a), the appointing authority shall appoint a person to perform
8-23 temporarily the duties of the suspended officer. The temporary
8-24 appointee shall perform the duties of the suspended officer until
8-25 the officer is removed from office, the removal action is
8-26 dismissed, the final judgment establishes the officer's right to
8-27 the office, or the office becomes vacant and is filled as provided
9-1 by law.
9-2 (c) The temporary appointee must possess the qualifications
9-3 required by law for the office. The county shall pay the temporary
9-4 appointee from the general fund of the county an amount equal to
9-5 the compensation received by the suspended officer. [The judge may
9-6 not suspend the officer until the person appointed to serve
9-7 executes a bond, with at least two good and sufficient sureties, in
9-8 an amount fixed by the judge and conditioned as required by the
9-9 judge. The bond shall be used to pay damages and costs to the
9-10 suspended officer if the grounds for removal are found at trial to
9-11 be insufficient or untrue. In an action to recover on the bond it
9-12 is necessary to allege and prove that the temporary appointee
9-13 actively aided and instigated the filing and prosecution of the
9-14 removal action. The suspended officer must also serve written
9-15 notice on the temporary appointee and the appointee's bondsman,
9-16 within 90 days after the date the bond is executed, stating that
9-17 the officer intends to hold them liable on the bond and stating the
9-18 grounds for that liability.]
9-19 (d) [(c)] If the removal action is dismissed or the final
9-20 judgment establishes the officer's right to the office, the county
9-21 shall reinstate [pay] the officer [from the general fund of the
9-22 county an amount equal to the compensation received by the
9-23 temporary appointee].
9-24 SECTION 9. Subchapter B, Chapter 87, Local Government Code,
9-25 is amended by adding Section 87.0171 to read as follows:
9-26 Sec. 87.0171. ABATEMENT OF PROCEEDINGS PENDING CRIMINAL
9-27 PROSECUTION. If a criminal prosecution is pending against the
10-1 officer for an act that is the basis for a ground for removal under
10-2 this subchapter, the judge in the removal action may abate the
10-3 proceedings under this subchapter, excluding the issuance of a
10-4 citation under Section 87.016 and the temporary suspension under
10-5 Section 87.017, until:
10-6 (1) the criminal charges against the officer are
10-7 dismissed;
10-8 (2) the court accepts a plea of guilty or nolo
10-9 contendere entered by the officer; or
10-10 (3) the trier of fact enters a verdict.
10-11 SECTION 10. Section 87.018, Local Government Code, is
10-12 amended to read as follows:
10-13 Sec. 87.018. TRIAL. (a) Except as provided by this
10-14 subsection, an officer [Officers] may be removed only following a
10-15 trial by jury. An officer may be removed without a trial by jury
10-16 if the officer, with the written consent of the state and the
10-17 judge, files with the court a written waiver of the officer's right
10-18 to a trial by jury.
10-19 (b) The trial for removal of an officer and the proceedings
10-20 connected with the trial shall be conducted as much as possible in
10-21 accordance with the rules and practice of the court in other civil
10-22 cases[, in the name of the State of Texas, and on the relation of
10-23 the person filing the petition].
10-24 (c) In a removal case tried before a jury, the judge may not
10-25 submit special issues to the jury. Under a proper charge
10-26 applicable to the facts of the case, the judge shall instruct the
10-27 jury to find from the evidence whether the grounds for removal
11-1 alleged in the petition are true. If the petition alleges more
11-2 than one ground for removal, the jury shall indicate in the
11-3 verdict, and the judge shall indicate in the judgment, which
11-4 grounds are sustained by the evidence and which are not sustained.
11-5 In a case tried before the court, the judge shall indicate in the
11-6 judgment which grounds are sustained by the evidence and which
11-7 grounds are not sustained.
11-8 [(d) The county attorney shall represent the state in a
11-9 proceeding for the removal of an officer except as otherwise
11-10 provided by Subsection (e) or (f).]
11-11 [(e) In a proceeding to remove a county attorney from
11-12 office, the district attorney shall represent the state. If the
11-13 county does not have a district attorney, the county attorney from
11-14 an adjoining county, as selected by the commissioners court of the
11-15 county in which the proceeding is pending, shall represent the
11-16 state.]
11-17 [(f) In a proceeding to remove the county attorney or
11-18 district attorney from office, the county attorney from an
11-19 adjoining county, as selected by the commissioners court of the
11-20 county in which the proceeding is pending, shall represent the
11-21 state if the attorney who would otherwise represent the state under
11-22 this section is also the subject of a pending removal proceeding.]
11-23 SECTION 11. Section 87.019, Local Government Code, is
11-24 amended to read as follows:
11-25 Sec. 87.019. New Trial or Appeal. (a) A [Either] party to
11-26 a removal action other than the state may move for a new trial or
11-27 appeal the final judgment to the court of appeals in the manner
12-1 provided for other civil cases. The state must file a motion for
12-2 new trial or perfect its appeal not later than the 10th day after
12-3 the date the court enters its written judgment. The trial court by
12-4 order shall expedite the preparation of all documents, including
12-5 transcripts, required for an appeal under this section. If the
12-6 officer has not been suspended from office, the officer is not
12-7 required to post an appeal bond but may be required to post a bond
12-8 for costs.
12-9 (b) The court of appeals shall accelerate an appeal under
12-10 this section. The [An] appeal [of a removal action] takes
12-11 precedence over the ordinary business of the court of appeals and
12-12 shall be decided with all convenient dispatch. If the trial court
12-13 judgment is not set aside or suspended, the appellate court [of
12-14 appeals] shall issue its mandate in the case within five days after
12-15 the date the court renders its judgment.
12-16 SECTION 12. Subchapter C, Local Government Code, is amended
12-17 by amending Sections 87.031 and 87.032 and adding Section 87.033 to
12-18 read as follows:
12-19 Sec. 87.031. Immediate Removal. (a) In a court of record,
12-20 the entry of a plea of guilty or nolo contendere by a county
12-21 officer or a verdict of guilty by a petit jury or, if the officer
12-22 has waived a trial by jury, the entry of a finding of guilt of the
12-23 officer by the court [The conviction of a county officer by a petit
12-24 jury] for any felony or for a misdemeanor involving official
12-25 misconduct operates as an immediate removal from office of that
12-26 officer and the office becomes vacant unless an appeal is filed.
12-27 (b) The court rendering judgment in such a case shall
13-1 include an order documenting the removal of [removing] the officer
13-2 in the judgment.
13-3 Sec. 87.032. APPEAL[; SUSPENSION]. If the officer appeals
13-4 the judgment, the [appeal supersedes the] order of removal remains
13-5 in effect [unless the court that renders the judgment finds that it
13-6 is in the public interest to suspend the officer] pending the
13-7 appeal. [If the court finds that the public interest requires
13-8 suspension, the court shall suspend the officer as provided by this
13-9 subchapter.]
13-10 Sec. 87.033. SUSPENSION FOLLOWING INDICTMENT FOR CRIMINAL
13-11 OFFENSE. (a) If an indictment by a grand jury of this state,
13-12 another state, or the United States is returned or an information
13-13 is filed in a court of this state, another state, or the United
13-14 States against an officer for a felony offense or for a misdemeanor
13-15 offense involving official misconduct, a district or county
13-16 attorney for the county in which the officer holds office may apply
13-17 in writing to a district judge of that county for an order to
13-18 temporarily suspend the officer pending the criminal prosecution.
13-19 (b) The application must include a statement that the
13-20 officer has been charged with a felony offense or with a
13-21 misdemeanor offense involving official misconduct and request that
13-22 the officer be temporarily suspended from office and enjoined from
13-23 performing official duties pending the criminal prosecution. A
13-24 certified copy of the indictment or information must be attached to
13-25 the application.
13-26 (c) After receiving the application, the judge shall order
13-27 the clerk of the court to issue a citation and a certified copy of
14-1 the application to be served on the officer. The court shall order
14-2 the officer to appear on a date, fixed by the judge, after the
14-3 fifth day and before the 21st day after the date the citation is
14-4 served.
14-5 (d) The court shall proceed with the suspension hearing
14-6 under this section in the manner provided by Subchapter B.
14-7 (e) Except as provided by Section 87.002, the court shall
14-8 reinstate an officer suspended under this section if the officer is
14-9 acquitted of all charges on which the suspension was based.
14-10 SECTION 13. The importance of this legislation and the
14-11 crowded condition of the calendars in both houses create an
14-12 emergency and an imperative public necessity that the
14-13 constitutional rule requiring bills to be read on three several
14-14 days in each house be suspended, and this rule is hereby suspended.