76R14406 E By Truitt H.B. No. 3836 Substitute the following for H.B. No. 3836: By Carter C.S.H.B. No. 3836 A BILL TO BE ENTITLED 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. An officer may not 2-14 be removed under this subchapter for an act the officer committed 2-15 before election to office. 2-16 Sec. 21.025. GENERAL GROUNDS FOR REMOVAL. An officer may be 2-17 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 (A) Intoxication is not a ground for removal if 2-23 it appears at the trial that the intoxication was caused by 2-24 drinking an alcoholic beverage on the direction and prescription of 2-25 a licensed 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.