1-1 By: Truitt (Senate Sponsor - Ellis) H.B. No. 3836 1-2 (In the Senate - Received from the House May 13, 1999; 1-3 May 13, 1999, read first time and referred to Committee on 1-4 Intergovernmental Relations; May 14, 1999, reported favorably by 1-5 the following vote: Yeas 4, Nays 0; May 14, 1999, sent to 1-6 printer.) 1-7 A BILL TO BE ENTITLED 1-8 AN ACT 1-9 relating to the removal of a member of the governing body of a 1-10 general-law municipality. 1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-12 SECTION 1. Chapter 21, Local Government Code, is amended by 1-13 designating Section 21.001 as Subchapter A and adding a heading to 1-14 Subchapter A to read as follows: 1-15 SUBCHAPTER A. GENERAL PROVISIONS 1-16 SECTION 2. Chapter 21, Local Government Code, is amended by 1-17 adding Subchapter B to read as follows: 1-18 SUBCHAPTER B. REMOVAL OF MEMBER OF GOVERNING BODY OF GENERAL-LAW 1-19 MUNICIPALITY 1-20 Sec. 21.021. APPLICABILITY. This subchapter applies only to 1-21 a general-law municipality. 1-22 Sec. 21.022. DEFINITIONS. In this subchapter: 1-23 (1) "District attorney" includes a criminal district 1-24 attorney. 1-25 (2) "Incompetency" means: 1-26 (A) gross ignorance of official duties; 1-27 (B) gross carelessness in the discharge of 1-28 official duties; or 1-29 (C) inability or unfitness to promptly and 1-30 properly discharge official duties because of a serious mental or 1-31 physical defect that did not exist at the time of the officer's 1-32 election. 1-33 (3) "Officer" means the mayor or another member of the 1-34 governing body of a municipality. 1-35 (4) "Official misconduct" means intentional unlawful 1-36 behavior relating to official duties by an officer entrusted with 1-37 the administration of justice or the execution of the law. The 1-38 term includes an intentional or corrupt failure, refusal, or 1-39 neglect of an officer to perform a duty imposed on the officer by 1-40 law. 1-41 Sec. 21.023. REMOVAL FROM OFFICE. The district judge may 1-42 remove an officer of the municipality from office as provided by 1-43 this subchapter. 1-44 Sec. 21.024. NO REMOVAL BEFORE ACTION. (a) An officer may 1-45 not be removed under this subchapter for an act the officer 1-46 committed before election to office. 1-47 Sec. 21.025. GENERAL GROUNDS FOR REMOVAL. (a) An officer 1-48 may be removed from office for: 1-49 (1) incompetency; 1-50 (2) official misconduct; or 1-51 (3) intoxication on or off duty caused by drinking an 1-52 alcoholic beverage. 1-53 (b) Intoxication is not a ground for removal if it appears 1-54 at the trial that the intoxication was caused by drinking an 1-55 alcoholic beverage on the direction and prescription of a licensed 1-56 physician practicing in this state. 1-57 Sec. 21.026. PETITION FOR REMOVAL. (a) A proceeding for 1-58 the removal of an officer is begun by filing a written petition for 1-59 removal in a district court of the county in which the officer 1-60 resides. 1-61 (b) Any resident of the municipality who has lived for at 1-62 least six months in the municipality and who is not currently under 1-63 indictment in the county in which the municipality is located may 1-64 file the petition. At least one of the parties who files the 2-1 petition must swear to it at or before the filing. 2-2 (c) The petition must be addressed to the district judge of 2-3 the court in which it is filed. The petition must specify the 2-4 grounds alleged for the removal of the officer in plain and 2-5 intelligible language and must cite the time and place of the 2-6 occurrence of each act alleged as a ground for removal with as much 2-7 certainty as the nature of the case permits. 2-8 Sec. 21.027. CITATION OF OFFICER. (a) After a petition for 2-9 removal is filed, the person filing the petition shall apply to the 2-10 district judge in writing for an order requiring a citation and a 2-11 certified copy of the petition to be served on the officer. 2-12 (b) If the application for the order is made during the term 2-13 of the court, action may not be taken on the petition until the 2-14 order is granted and entered in the minutes of the court. If the 2-15 application is made to the judge during the vacation of the court, 2-16 the judge shall indicate on the petition the action taken and shall 2-17 have the action entered in the minutes of the court at the next 2-18 term. 2-19 (c) If the judge refuses to issue the order for citation, 2-20 the petition shall be dismissed at the cost of the person filing 2-21 the petition. The person may not take an appeal from the judge's 2-22 decision or apply for a writ of mandamus. If the judge grants the 2-23 order for citation, the clerk shall issue the citation with a 2-24 certified copy of the petition. The judge shall require the person 2-25 filing the petition to post security for costs in the manner 2-26 provided for other cases. 2-27 (d) The citation shall order the officer to appear and 2-28 answer the petition on a date, fixed by the judge, after the fifth 2-29 day after the date the citation is served. The time is computed as 2-30 it is in other suits. Disposition of this action by the district 2-31 court shall take precedence over other civil matters on the court's 2-32 docket. 2-33 Sec. 21.028. BOND. (a) The judge shall require the person 2-34 filing the petition to execute a bond, with at least two good and 2-35 sufficient sureties, in an amount fixed by the judge and 2-36 conditioned as required by the judge. The bond shall be used to 2-37 pay damages and costs to the officer if the grounds for removal are 2-38 found at trial to be insufficient or untrue. The officer must 2-39 serve written notice on the person who filed the petition and that 2-40 person's bondsman not later than the 90th day after the date the 2-41 bond is executed, stating that the officer intends to hold them 2-42 liable on the bond and stating the grounds for that liability. 2-43 (b) If the final judgment establishes the officer's right to 2-44 the office, the person filing the petition shall pay the officer an 2-45 amount determined by the judge as appropriate to compensate the 2-46 officer for the damages suffered as a result of the removal action. 2-47 Sec. 21.029. TRIAL. (a) An officer shall have the right to 2-48 trial by jury. 2-49 (b) The trial for the removal of an officer and the 2-50 proceedings connected with the trial shall be conducted as much as 2-51 possible in accordance with the rules and practice of the court in 2-52 other civil cases, in the name of the State of Texas, and on the 2-53 relation of the person filing the petition. 2-54 (c) In a removal case, the judge may not submit special 2-55 issues to the jury. Under a proper charge applicable to the facts 2-56 of the case, the judge shall instruct the jury to find from the 2-57 evidence whether the grounds for removal alleged in the petition 2-58 are true. If the petition alleges more than one ground for 2-59 removal, the jury shall indicate in the verdict which grounds are 2-60 sustained by the evidence and which are not sustained. 2-61 (d) The district attorney shall represent the state in a 2-62 proceeding for the removal of an officer. 2-63 Sec. 21.030. APPEAL. (a) Either party to a removal action 2-64 may appeal the final judgment to the court of appeals in the manner 2-65 provided for other civil cases. The officer is not required to 2-66 post an appeal bond but may be required to post a bond for costs. 2-67 (b) An appeal of a removal action takes precedence over the 2-68 ordinary business of the court of appeals and shall be decided with 2-69 all convenient dispatch. If the trial court judgment is not set 3-1 aside or suspended, the court of appeals shall issue its mandate in 3-2 the case not later than the fifth day after the date the court 3-3 renders its judgment. 3-4 Sec. 21.031. REMOVAL BY CRIMINAL CONVICTION. (a) The 3-5 conviction of an officer by a petit jury for any felony or for a 3-6 misdemeanor involving official misconduct operates as an immediate 3-7 removal from office. 3-8 (b) The court rendering judgment in the case shall include 3-9 in the judgment an order removing the officer. 3-10 (c) If the removed officer appeals the judgment, the appeal 3-11 supersedes the order of removal unless the court that renders the 3-12 judgment finds that it is in the public interest to suspend the 3-13 removed officer pending the appeal. If the court finds that the 3-14 public interest requires suspension, the court shall suspend the 3-15 removed officer as provided by this subchapter. 3-16 Sec. 21.032. REELECTION PROHIBITED FOR CERTAIN PERIOD. An 3-17 officer removed under this subchapter is not eligible for 3-18 reelection to the same office before the second anniversary of the 3-19 date of the removal. 3-20 SECTION 3. Section 21.002, Local Government Code, is 3-21 repealed. 3-22 SECTION 4. The change in law made by this Act applies only 3-23 to a member of the governing body of a general-law municipality who 3-24 engages in an act on or after the effective date of this Act that 3-25 constitutes a ground for removal under Subchapter B, Chapter 21, 3-26 Local Government Code, as added by this Act. A member of the 3-27 governing body who engages in an act before the effective date of 3-28 this Act that constitutes a ground for removal under Section 3-29 21.002, Local Government Code, as it existed immediately before the 3-30 effective date of this Act, is governed by that section, and the 3-31 former law is continued in effect for that purpose. 3-32 SECTION 5. This Act takes effect September 1, 1999. 3-33 SECTION 6. The importance of this legislation and the 3-34 crowded condition of the calendars in both houses create an 3-35 emergency and an imperative public necessity that the 3-36 constitutional rule requiring bills to be read on three several 3-37 days in each house be suspended, and this rule is hereby suspended. 3-38 * * * * *