1-1 AN ACT
1-2 relating to the removal of a member of the governing body of a
1-3 general-law municipality.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 21, Local Government Code, is amended by
1-6 designating Section 21.001 as Subchapter A and adding a heading to
1-7 Subchapter A to read as follows:
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 SECTION 2. Chapter 21, Local Government Code, is amended by
1-10 adding Subchapter B to read as follows:
1-11 SUBCHAPTER B. REMOVAL OF MEMBER OF GOVERNING BODY OF GENERAL-LAW
1-12 MUNICIPALITY
1-13 Sec. 21.021. APPLICABILITY. This subchapter applies only to
1-14 a general-law municipality.
1-15 Sec. 21.022. DEFINITIONS. In this subchapter:
1-16 (1) "District attorney" includes a criminal district
1-17 attorney.
1-18 (2) "Incompetency" means:
1-19 (A) gross ignorance of official duties;
1-20 (B) gross carelessness in the discharge of
1-21 official duties; or
1-22 (C) inability or unfitness to promptly and
1-23 properly discharge official duties because of a serious mental or
1-24 physical defect that did not exist at the time of the officer's
2-1 election.
2-2 (3) "Officer" means the mayor or another member of the
2-3 governing body of a municipality.
2-4 (4) "Official misconduct" means intentional unlawful
2-5 behavior relating to official duties by an officer entrusted with
2-6 the administration of justice or the execution of the law. The
2-7 term includes an intentional or corrupt failure, refusal, or
2-8 neglect of an officer to perform a duty imposed on the officer by
2-9 law.
2-10 Sec. 21.023. REMOVAL FROM OFFICE. The district judge may
2-11 remove an officer of the municipality from office as provided by
2-12 this subchapter.
2-13 Sec. 21.024. NO REMOVAL BEFORE ACTION. (a) An officer may
2-14 not be removed under this subchapter for an act the officer
2-15 committed before election to office.
2-16 Sec. 21.025. GENERAL GROUNDS FOR REMOVAL. (a) An officer
2-17 may be removed from office for:
2-18 (1) incompetency;
2-19 (2) official misconduct; or
2-20 (3) intoxication on or off duty caused by drinking an
2-21 alcoholic beverage.
2-22 (b) Intoxication is not a ground for removal if it appears
2-23 at the trial that the intoxication was caused by drinking an
2-24 alcoholic beverage on the direction and prescription of a licensed
2-25 physician practicing in this state.
2-26 Sec. 21.026. PETITION FOR REMOVAL. (a) A proceeding for
2-27 the removal of an officer is begun by filing a written petition for
3-1 removal in a district court of the county in which the officer
3-2 resides.
3-3 (b) Any resident of the municipality who has lived for at
3-4 least six months in the municipality and who is not currently under
3-5 indictment in the county in which the municipality is located may
3-6 file the petition. At least one of the parties who files the
3-7 petition must swear to it at or before the filing.
3-8 (c) The petition must be addressed to the district judge of
3-9 the court in which it is filed. The petition must specify the
3-10 grounds alleged for the removal of the officer in plain and
3-11 intelligible language and must cite the time and place of the
3-12 occurrence of each act alleged as a ground for removal with as much
3-13 certainty as the nature of the case permits.
3-14 Sec. 21.027. CITATION OF OFFICER. (a) After a petition for
3-15 removal is filed, the person filing the petition shall apply to the
3-16 district judge in writing for an order requiring a citation and a
3-17 certified copy of the petition to be served on the officer.
3-18 (b) If the application for the order is made during the term
3-19 of the court, action may not be taken on the petition until the
3-20 order is granted and entered in the minutes of the court. If the
3-21 application is made to the judge during the vacation of the court,
3-22 the judge shall indicate on the petition the action taken and shall
3-23 have the action entered in the minutes of the court at the next
3-24 term.
3-25 (c) If the judge refuses to issue the order for citation,
3-26 the petition shall be dismissed at the cost of the person filing
3-27 the petition. The person may not take an appeal from the judge's
4-1 decision or apply for a writ of mandamus. If the judge grants the
4-2 order for citation, the clerk shall issue the citation with a
4-3 certified copy of the petition. The judge shall require the person
4-4 filing the petition to post security for costs in the manner
4-5 provided for other cases.
4-6 (d) The citation shall order the officer to appear and
4-7 answer the petition on a date, fixed by the judge, after the fifth
4-8 day after the date the citation is served. The time is computed as
4-9 it is in other suits. Disposition of this action by the district
4-10 court shall take precedence over other civil matters on the court's
4-11 docket.
4-12 Sec. 21.028. BOND. (a) The judge shall require the person
4-13 filing the petition to execute a bond, with at least two good and
4-14 sufficient sureties, in an amount fixed by the judge and
4-15 conditioned as required by the judge. The bond shall be used to
4-16 pay damages and costs to the officer if the grounds for removal are
4-17 found at trial to be insufficient or untrue. The officer must
4-18 serve written notice on the person who filed the petition and that
4-19 person's bondsman not later than the 90th day after the date the
4-20 bond is executed, stating that the officer intends to hold them
4-21 liable on the bond and stating the grounds for that liability.
4-22 (b) If the final judgment establishes the officer's right to
4-23 the office, the person filing the petition shall pay the officer an
4-24 amount determined by the judge as appropriate to compensate the
4-25 officer for the damages suffered as a result of the removal action.
4-26 Sec. 21.029. TRIAL. (a) An officer shall have the right to
4-27 trial by jury.
5-1 (b) The trial for the removal of an officer and the
5-2 proceedings connected with the trial shall be conducted as much as
5-3 possible in accordance with the rules and practice of the court in
5-4 other civil cases, in the name of the State of Texas, and on the
5-5 relation of the person filing the petition.
5-6 (c) In a removal case, the judge may not submit special
5-7 issues to the jury. Under a proper charge applicable to the facts
5-8 of the case, the judge shall instruct the jury to find from the
5-9 evidence whether the grounds for removal alleged in the petition
5-10 are true. If the petition alleges more than one ground for
5-11 removal, the jury shall indicate in the verdict which grounds are
5-12 sustained by the evidence and which are not sustained.
5-13 (d) The district attorney shall represent the state in a
5-14 proceeding for the removal of an officer.
5-15 Sec. 21.030. APPEAL. (a) Either party to a removal action
5-16 may appeal the final judgment to the court of appeals in the manner
5-17 provided for other civil cases. The officer is not required to
5-18 post an appeal bond but may be required to post a bond for costs.
5-19 (b) An appeal of a removal action takes precedence over the
5-20 ordinary business of the court of appeals and shall be decided with
5-21 all convenient dispatch. If the trial court judgment is not set
5-22 aside or suspended, the court of appeals shall issue its mandate in
5-23 the case not later than the fifth day after the date the court
5-24 renders its judgment.
5-25 Sec. 21.031. REMOVAL BY CRIMINAL CONVICTION. (a) The
5-26 conviction of an officer by a petit jury for any felony or for a
5-27 misdemeanor involving official misconduct operates as an immediate
6-1 removal from office.
6-2 (b) The court rendering judgment in the case shall include
6-3 in the judgment an order removing the officer.
6-4 (c) If the removed officer appeals the judgment, the appeal
6-5 supersedes the order of removal unless the court that renders the
6-6 judgment finds that it is in the public interest to suspend the
6-7 removed officer pending the appeal. If the court finds that the
6-8 public interest requires suspension, the court shall suspend the
6-9 removed officer as provided by this subchapter.
6-10 Sec. 21.032. REELECTION PROHIBITED FOR CERTAIN PERIOD. An
6-11 officer removed under this subchapter is not eligible for
6-12 reelection to the same office before the second anniversary of the
6-13 date of the removal.
6-14 SECTION 3. Section 21.002, Local Government Code, is
6-15 repealed.
6-16 SECTION 4. The change in law made by this Act applies only
6-17 to a member of the governing body of a general-law municipality who
6-18 engages in an act on or after the effective date of this Act that
6-19 constitutes a ground for removal under Subchapter B, Chapter 21,
6-20 Local Government Code, as added by this Act. A member of the
6-21 governing body who engages in an act before the effective date of
6-22 this Act that constitutes a ground for removal under Section
6-23 21.002, Local Government Code, as it existed immediately before the
6-24 effective date of this Act, is governed by that section, and the
6-25 former law is continued in effect for that purpose.
6-26 SECTION 5. This Act takes effect September 1, 1999.
6-27 SECTION 6. The importance of this legislation and the
7-1 crowded condition of the calendars in both houses create an
7-2 emergency and an imperative public necessity that the
7-3 constitutional rule requiring bills to be read on three several
7-4 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 3836 was passed by the House on May
12, 1999, by a non-record vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 3836 was passed by the Senate on May
26, 1999, by the following vote: Yeas 30, Nays 0.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor