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.