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.
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