1-1 By: Lucio S.B. No. 252
1-2 (In the Senate - Filed January 21, 1997; January 22, 1997,
1-3 read first time and referred to Committee on Intergovernmental
1-4 Relations; March 3, 1997, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 11, Nays 0;
1-6 March 3, 1997, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 252 By: Lucio
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to removal of county officers from office.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Subchapter A, Chapter 87, Local Government Code,
1-13 is amended by amending Section 87.001 and adding Section 87.002 to
1-14 read as follows:
1-15 Sec. 87.001. NO REMOVAL FOR PRIOR ACTION. (a) Except as
1-16 provided by Subsection (b), an [An] officer may not be removed
1-17 under this chapter for an act the officer committed before election
1-18 to office.
1-19 (b) An officer may be removed under this chapter if the act
1-20 was unknown to the general public when the officer was elected to
1-21 the office.
1-22 Sec. 87.002. DURATION OF SUSPENSION. The suspension of an
1-23 officer under a section of this chapter remains in effect and may
1-24 not be enjoined until all removal actions under this chapter in
1-25 which the officer is a defendant are finally resolved.
1-26 SECTION 2. Sections 87.011 and 87.012, Local Government
1-27 Code, are transferred to Subchapter A, Chapter 87, Local Government
1-28 Code, are redesignated as Sections 87.003 and 87.004, Local
1-29 Government Code, and are amended to read as follows:
1-30 Sec. 87.003 [87.011]. Definitions. In this chapter
1-31 [subchapter]:
1-32 (1) "District attorney" includes a criminal district
1-33 attorney.
1-34 (2) "Incompetency" means:
1-35 (A) gross ignorance of official duties;
1-36 (B) gross carelessness in the discharge of those
1-37 duties; or
1-38 (C) unfitness or inability to promptly and
1-39 properly discharge official duties because of a serious physical or
1-40 mental defect that did not exist at the time of the officer's
1-41 election.
1-42 (3) "Official misconduct" means intentional, unlawful
1-43 behavior relating to official duties by an officer entrusted with
1-44 the administration of justice or the execution of the law. The
1-45 term includes an intentional or corrupt failure, refusal, or
1-46 neglect of an officer to perform a duty imposed on the officer by
1-47 law.
1-48 Sec. 87.004 [87.012]. Officers Subject to Removal. The
1-49 district judge may, under this chapter [subchapter], remove from
1-50 office:
1-51 (1) a district attorney;
1-52 (2) a county attorney;
1-53 (3) a county judge;
1-54 (4) a county commissioner;
1-55 (5) a county clerk;
1-56 (6) a district clerk;
1-57 (7) a district and county clerk;
1-58 (8) a county treasurer;
1-59 (9) a sheriff;
1-60 (10) a county surveyor;
1-61 (11) a county tax assessor-collector;
1-62 (12) a constable;
1-63 (13) an inspector of hides and animals;
1-64 (14) a justice of the peace; and
2-1 (15) a county officer, not otherwise named by this
2-2 section, whose office is created under the constitution or other
2-3 law of this state.
2-4 SECTION 3. Section 87.013, Local Government Code, is amended
2-5 to read as follows:
2-6 Sec. 87.013. GENERAL GROUNDS FOR REMOVAL. (a) An officer
2-7 may be removed for:
2-8 (1) incompetency;
2-9 (2) official misconduct; [or]
2-10 (3) public intoxication on or off duty; or
2-11 (4) conduct that constitutes a felony offense under
2-12 the laws of the United States, this state, or another state [caused
2-13 by drinking an alcoholic beverage].
2-14 (b) Public intoxication [Intoxication] is not a ground for
2-15 removal if it appears at the trial that the intoxication was caused
2-16 by a substance used [drinking an alcoholic beverage] on the
2-17 direction and prescription of a licensed physician practicing in
2-18 this state.
2-19 SECTION 4. Section 87.015, Local Government Code, is amended
2-20 to read as follows:
2-21 Sec. 87.015. Petition for Removal. (a) A proceeding for
2-22 the removal of an officer is begun by filing a written petition for
2-23 removal in a district court of the county in which the officer
2-24 resides. However, a proceeding for the removal of a district
2-25 attorney is begun by filing a written petition in a district court
2-26 of:
2-27 (1) the county in which the attorney resides; or
2-28 (2) the county where the alleged cause of removal
2-29 occurred, if that county is in the attorney's judicial district.
2-30 (b) A removal petition must be filed by:
2-31 (1) an attorney authorized to represent the state in a
2-32 removal proceeding; and
2-33 (2) any [Any] resident of this state who has lived for
2-34 at least six months in the county in which the petition is to be
2-35 filed, who has never been convicted of a felony offense, and who is
2-36 not currently under indictment in the county [may file the
2-37 petition].
2-38 (c) At least one of the parties who files a [the] petition
2-39 under Subsection (b)(2) must swear to it at or before the filing.
2-40 (d) [(c)] The petition must:
2-41 (1) be brought in the name of the state as plaintiff;
2-42 (2) identify each person filing the petition,
2-43 excluding the attorney authorized to represent the state, as a
2-44 relator;
2-45 (3) identify as the defendant the officer to be
2-46 removed;
2-47 (4) [addressed to the district judge of the court in
2-48 which it is filed. The petition must] set forth the grounds
2-49 alleged for the removal of the officer in plain and intelligible
2-50 language; and
2-51 (5) [must] cite the time and place of the occurrence
2-52 of each act alleged as a ground for removal with as much certainty
2-53 as the nature of the case permits.
2-54 SECTION 5. Subchapter B, Chapter 87, Local Government Code,
2-55 is amended by adding Section 87.0155 to read as follows:
2-56 Sec. 87.0155. REPRESENTATION BY THE STATE. (a) Except as
2-57 otherwise provided by this section, the county attorney for the
2-58 county in which the officer holds office shall represent the state
2-59 in a proceeding for the removal of an officer under this chapter.
2-60 (b) In a proceeding to remove a county attorney from office,
2-61 the district attorney shall represent the state. If the county
2-62 does not have a district attorney, the county attorney from an
2-63 adjoining county, as selected by the commissioners court of the
2-64 county in which the proceeding is pending, shall represent the
2-65 state.
2-66 (c) In a proceeding to remove the county attorney or
2-67 district attorney from office, the county attorney from an
2-68 adjoining county, as selected by the commissioners court of the
2-69 county in which the proceeding is pending, shall represent the
3-1 state if the attorney who would otherwise represent the state under
3-2 this section is also the subject of a pending removal proceeding.
3-3 (d) If an indictment or information is returned against an
3-4 officer in a county in which the petition for removal is filed and
3-5 the removal petition is based on substantially the same subject
3-6 matter as the criminal action, the attorney representing the state
3-7 in the criminal action shall represent the state in the removal
3-8 action unless the attorney representing the state in the criminal
3-9 action is disqualified from representing the state in the removal
3-10 action.
3-11 (e) The attorney representing the state has exclusive
3-12 control over the prosecution of an action for removal under this
3-13 chapter. Based on the attorney's discretion, the attorney may
3-14 dismiss or refuse to file a petition for removal.
3-15 SECTION 6. Section 87.016, Local Government Code, is amended
3-16 to read as follows:
3-17 Sec. 87.016. CITATION OF PARTIES [OFFICER]. (a) After a
3-18 petition for removal is filed and before citation may issue, the
3-19 attorney representing the state [person filing the petition] shall
3-20 apply in writing to the district judge to whom the case is assigned
3-21 [in writing] for an order requiring a citation and a certified copy
3-22 of the petition to be served on the officer.
3-23 (b) The judge shall review the petition, and if the petition
3-24 states a prima facie case for removal under this chapter, the judge
3-25 shall issue the order for citation. [If the application for the
3-26 order is made during the term of the court, action may not be taken
3-27 on the petition until the order is granted and entered in the
3-28 minutes of the court. If the application is made to the judge
3-29 during the vacation of the court, the judge shall indicate on the
3-30 petition the action taken and shall have the action entered in the
3-31 minutes of the court at the next term.]
3-32 [(c)] If the judge refuses to issue the order for citation,
3-33 the petition shall be dismissed at the cost of the relator [person]
3-34 filing the petition. [The person may not take an appeal or writ of
3-35 error from the judge's decision.]
3-36 (c) If the judge grants the order for citation, the judge
3-37 shall issue the order not later than the third day after the date
3-38 the application is submitted, and the clerk shall issue the
3-39 citation with a certified copy of the petition to the defendant and
3-40 a copy of the order for citation to each relator and the attorney
3-41 representing the state. The judge shall require the relator
3-42 [person filing the petition] to post security for costs in the
3-43 manner provided for other cases.
3-44 (d) The citation shall order the officer to appear and
3-45 answer the petition on a date, fixed by the judge, after the fifth
3-46 day and before the 21st day after the date the citation is served.
3-47 The time is computed as it is in other suits.
3-48 SECTION 7. Subchapter B, Chapter 87, Local Government Code,
3-49 is amended by adding Section 87.0161 to read as follows:
3-50 Sec. 87.0161. APPOINTMENT OF VISITING JUDGE. (a) If the
3-51 petition is not dismissed, the judge shall request the presiding
3-52 judge of the court to assign another judge who is not a resident of
3-53 the county to dispose of the suit and shall take no further action
3-54 in the case.
3-55 (b) If the attorney for the state files a motion to dismiss
3-56 the case before the other judge is appointed, the judge ordering
3-57 service of citation may order the suit dismissed.
3-58 SECTION 8. Section 87.017, Local Government Code, is amended
3-59 to read as follows:
3-60 Sec. 87.017. SUSPENSION PENDING TRIAL; TEMPORARY APPOINTEE.
3-61 (a) After the issuance of the order requiring citation of the
3-62 officer, the district judge appointed to the case under Section
3-63 87.0161 shall order the officer to appear and show cause why the
3-64 officer should not be suspended from office during the pendency of
3-65 the removal suit. The judge shall [may] temporarily suspend the
3-66 officer and enjoin the officer from performing official duties if
3-67 the judge finds after the hearing that suspension of the officer is
3-68 in the public's best interest. If the judge suspends the officer,
3-69 the judge shall:
4-1 (1) terminate the officer's benefits, excluding salary
4-2 and insurance benefits, during the period of the suspension;
4-3 (2) [and may] appoint another person to perform the
4-4 duties of the office until the authority required by law to fill a
4-5 vacancy in the office appoints an officer as provided by this
4-6 section; and
4-7 (3) order the clerk of the court to serve a copy of
4-8 the order of suspension on:
4-9 (A) the authority required by law to fill a
4-10 vacancy in the office; and
4-11 (B) the county treasurer, if any, or the person
4-12 performing the duties of the county treasurer.
4-13 (b) On receipt of the order of suspension under Subsection
4-14 (a), the appointing authority shall appoint a person to perform
4-15 temporarily the duties of the suspended officer. The temporary
4-16 appointee shall perform the duties of the suspended officer until
4-17 the officer is removed from office, the removal action is
4-18 dismissed, the final judgment establishes the officer's right to
4-19 the office, or the office becomes vacant and is filled as provided
4-20 by law.
4-21 (c) The temporary appointee must possess the qualifications
4-22 required by law for the office. The county shall pay the temporary
4-23 appointee from the general fund of the county an amount equal to
4-24 the compensation received by the suspended officer [The judge may
4-25 not suspend the officer until the person appointed to serve
4-26 executes a bond, with at least two good and sufficient sureties, in
4-27 an amount fixed by the judge and conditioned as required by the
4-28 judge. The bond shall be used to pay damages and costs to the
4-29 suspended officer if the grounds for removal are found at trial to
4-30 be insufficient or untrue. In an action to recover on the bond it
4-31 is necessary to allege and prove that the temporary appointee
4-32 actively aided and instigated the filing and prosecution of the
4-33 removal action. The suspended officer must also serve written
4-34 notice on the temporary appointee and the appointee's bondsman,
4-35 within 90 days after the date the bond is executed, stating that
4-36 the officer intends to hold them liable on the bond and stating the
4-37 grounds for that liability].
4-38 (d) [(c)] If the removal action is dismissed or the final
4-39 judgment establishes the officer's right to the office, the county
4-40 shall reinstate [pay] the officer [from the general fund of the
4-41 county an amount equal to the compensation received by the
4-42 temporary appointee].
4-43 SECTION 9. Subchapter B, Chapter 87, Local Government Code,
4-44 is amended by adding Section 87.0171 to read as follows:
4-45 Sec. 87.0171. ABATEMENT OF PROCEEDINGS PENDING CRIMINAL
4-46 PROSECUTION. (a) If a criminal prosecution is pending against the
4-47 officer for an act that is the basis for a ground for removal under
4-48 this subchapter, the judge in the removal action may abate the
4-49 proceedings under this subchapter, excluding the issuance of a
4-50 citation under Section 87.016 and the temporary suspension under
4-51 Section 87.017, until:
4-52 (1) the criminal charges against the officer are
4-53 dismissed;
4-54 (2) the court accepts a plea of guilty or nolo
4-55 contendere entered by the officer; or
4-56 (3) the trier of fact enters a verdict.
4-57 (b) If a removal proceeding is abated under this section, a
4-58 temporary suspension under Section 87.017 expires by operation of
4-59 law on the 180th day after the date the removal proceeding is
4-60 abated.
4-61 (c) After the 150th day after the date a removal proceeding
4-62 is abated under this section, the attorney representing the state
4-63 may request an additional six-month suspension. After a hearing,
4-64 the judge may suspend the officer for an additional six-month
4-65 period if the judge finds that the state has been diligent in its
4-66 criminal prosecution of the officer and that the suspension of the
4-67 officer is in the public's best interest.
4-68 SECTION 10. Section 87.018, Local Government Code, is
4-69 amended to read as follows:
5-1 Sec. 87.018. TRIAL. (a) Except as provided by this
5-2 subsection, an officer [Officers] may be removed only following a
5-3 trial by jury. An officer may be removed without a trial by jury
5-4 if the officer, with the written consent of the state and the
5-5 judge, files with the court a written waiver of the officer's right
5-6 to a trial by jury.
5-7 (b) The trial for removal of an officer and the proceedings
5-8 connected with the trial shall be conducted as much as possible in
5-9 accordance with the rules and practice of the court in other civil
5-10 cases[, in the name of the State of Texas, and on the relation of
5-11 the person filing the petition].
5-12 (c) In a removal case tried before a jury, the judge may not
5-13 submit special issues to the jury. Under a proper charge
5-14 applicable to the facts of the case, the judge shall instruct the
5-15 jury to find from the evidence whether the grounds for removal
5-16 alleged in the petition are true. If the petition alleges more
5-17 than one ground for removal, the jury shall indicate in the
5-18 verdict, and the judge shall indicate in the judgment, which
5-19 grounds are sustained by the evidence and which are not sustained.
5-20 In a case tried before the court, the judge shall indicate in the
5-21 judgment which grounds are sustained by the evidence and which
5-22 grounds are not sustained.
5-23 [(d) The county attorney shall represent the state in a
5-24 proceeding for the removal of an officer except as otherwise
5-25 provided by Subsection (e) or (f).]
5-26 [(e) In a proceeding to remove a county attorney from
5-27 office, the district attorney shall represent the state. If the
5-28 county does not have a district attorney, the county attorney from
5-29 an adjoining county, as selected by the commissioners court of the
5-30 county in which the proceeding is pending, shall represent the
5-31 state.]
5-32 [(f) In a proceeding to remove the county attorney or
5-33 district attorney from office, the county attorney from an
5-34 adjoining county, as selected by the commissioners court of the
5-35 county in which the proceeding is pending, shall represent the
5-36 state if the attorney who would otherwise represent the state under
5-37 this section is also the subject of a pending removal proceeding.]
5-38 SECTION 11. Section 87.019, Local Government Code, is
5-39 amended to read as follows:
5-40 Sec. 87.019. New Trial or Appeal. (a) A [Either] party to
5-41 a removal action other than the state may move for a new trial or
5-42 appeal the final judgment to the court of appeals in the manner
5-43 provided for other civil cases. The state must file a motion for
5-44 new trial or perfect its appeal not later than the 10th day after
5-45 the date the court enters its written judgment. The trial court by
5-46 order shall expedite the preparation of all documents, including
5-47 transcripts, required for an appeal under this section. If the
5-48 officer has not been suspended from office, the officer is not
5-49 required to post an appeal bond but may be required to post a bond
5-50 for costs.
5-51 (b) The court of appeals shall accelerate an appeal under
5-52 this section. The [An] appeal [of a removal action] takes
5-53 precedence over the ordinary business of the court of appeals and
5-54 shall be decided with all convenient dispatch. If the trial court
5-55 judgment is not set aside or suspended, the appellate court [of
5-56 appeals] shall issue its mandate in the case within five days after
5-57 the date the court renders its judgment.
5-58 SECTION 12. Subchapter C, Local Government Code, is amended
5-59 by amending Sections 87.031 and 87.032 and adding Section 87.033 to
5-60 read as follows:
5-61 Sec. 87.031. Immediate Removal. (a) In a court of record,
5-62 the entry of a plea of guilty or nolo contendere by a county
5-63 officer or a verdict of guilty by a petit jury or, if the officer
5-64 has waived a trial by jury, the entry of a finding of guilt of the
5-65 officer by the court [The conviction of a county officer by a petit
5-66 jury] for any felony or for a misdemeanor involving official
5-67 misconduct operates as an immediate removal from office of that
5-68 officer and the office becomes vacant unless an appeal is
5-69 perfected.
6-1 (b) The court rendering judgment in such a case shall
6-2 include an order documenting the removal of [removing] the officer
6-3 in the judgment.
6-4 Sec. 87.032. APPEAL[; SUSPENSION]. If the officer appeals
6-5 the judgment, the [appeal supersedes the] order of removal remains
6-6 in effect [unless the court that renders the judgment finds that it
6-7 is in the public interest to suspend the officer] pending the
6-8 appeal. [If the court finds that the public interest requires
6-9 suspension, the court shall suspend the officer as provided by this
6-10 subchapter.]
6-11 Sec. 87.033. SUSPENSION FOLLOWING INDICTMENT FOR CRIMINAL
6-12 OFFENSE. (a) If an indictment by a grand jury of this state,
6-13 another state, or the United States is returned or an information
6-14 is filed in a court of this state, another state, or the United
6-15 States against an officer for a felony offense or for a misdemeanor
6-16 offense involving official misconduct, a district or county
6-17 attorney for the county in which the officer holds office may apply
6-18 in writing to a district judge of that county for an order to
6-19 temporarily suspend the officer pending the criminal prosecution.
6-20 (b) The application must include a statement that the
6-21 officer has been charged with a felony offense or with a
6-22 misdemeanor offense involving official misconduct, a statement of
6-23 the facts that support the finding that suspension of the officer
6-24 is in the public's best interest, and a request that the officer be
6-25 temporarily suspended from office and enjoined from performing
6-26 official duties pending the criminal prosecution. A certified copy
6-27 of the indictment or information must be attached to the
6-28 application.
6-29 (c) After receiving the application, the judge shall order
6-30 the clerk of the court to issue a citation and a certified copy of
6-31 the application to be served on the officer. The court shall order
6-32 the officer to appear on a date, fixed by the judge, after the
6-33 fifth day and before the 21st day after the date the citation is
6-34 served.
6-35 (d) The court shall proceed with the suspension hearing
6-36 under this section in the manner provided by Subchapter B.
6-37 (e) The court shall reinstate an officer suspended under
6-38 this section if the officer is acquitted of all charges on which
6-39 the suspension was based.
6-40 SECTION 13. The importance of this legislation and the
6-41 crowded condition of the calendars in both houses create an
6-42 emergency and an imperative public necessity that the
6-43 constitutional rule requiring bills to be read on three several
6-44 days in each house be suspended, and this rule is hereby suspended.
6-45 * * * * *