H.B. No. 17
 
 
 
 
AN ACT
  relating to official misconduct by and removal of prosecuting
  attorneys.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 87.011, Local Government Code, is
  amended by amending Subdivision (3) and adding Subdivisions (4) and
  (5) to read as follows:
               (3)  "Official misconduct" means intentional, unlawful
  behavior relating to official duties by an officer entrusted with
  the administration of justice or the execution of the law.  The term
  includes:
                     (A)  an intentional or corrupt failure, refusal,
  or neglect of an officer to perform a duty imposed on the officer by
  law;
                     (B)  a prosecuting attorney's adoption or
  enforcement of a policy of refusing to prosecute a class or type of
  criminal offense under state law or instructing law enforcement to
  refuse to arrest individuals suspected of committing a class or
  type of offense under state law, except a policy adopted:
                           (i)  in compliance with state law or an
  injunction, judgment, or other court order;
                           (ii)  in response to a reasonable
  evidentiary impediment to prosecution; or
                           (iii)  to provide for diversion or similar
  conditional dismissals of cases when permissible under state law;
  or
                     (C)  permitting an attorney who is employed by or
  otherwise under the direction or control of the prosecuting
  attorney to refuse to prosecute a class or type of criminal offense
  under state law or instruct law enforcement to refuse to arrest
  individuals suspected of committing a class or type of offense
  under state law for any reason other than a reason described by
  Paragraph (B)(i), (ii), or (iii).
               (4)  "Policy" means an instruction or directive
  expressed in any manner.
               (5)  "Prosecuting attorney" means a district attorney
  or a county attorney with criminal jurisdiction.
         SECTION 2.  Subchapter B, Chapter 87, Local Government Code,
  is amended by adding Section 87.0131 to read as follows:
         Sec. 87.0131.  DEFENSE IN CERTAIN CASES. It is a defense in
  an action alleging a prosecuting attorney committed official
  misconduct described by Section 87.011(3)(C) that the prosecuting
  attorney took action immediately on discovering an attorney
  employed by or otherwise under the direction or control of the
  prosecuting attorney was acting as described by Section
  87.011(3)(C).
         SECTION 3.  Section 87.015, Local Government Code, is
  amended by amending Subsections (b) and (c) and adding Subsection
  (b-1) to read as follows:
         (b)  A petition for removal of an officer other than a
  prosecuting attorney may be filed by any [Any] resident of this
  state who has lived for at least six months in the county in which
  the petition is to be filed and who is not currently under
  indictment in the county [may file the petition].  At least one of
  the parties who files the petition must swear to it at or before the
  filing.
         (b-1)  A petition for removal of a prosecuting attorney may
  be filed by any resident of this state who, at the time of the
  alleged cause of removal, lives and has lived for at least six
  months in the county in which the alleged cause of removal occurred
  and who is not currently charged with a criminal offense in that
  county. At least one of the parties who files the petition must
  swear to it at or before the filing.
         (c)  A [The] petition for removal of an officer other than a
  prosecuting attorney must be addressed to the district judge of the
  court in which it is filed. A petition for removal of a prosecuting
  attorney must be addressed to the presiding judge of the
  administrative judicial region in which the petition is filed. The
  petition must set forth the grounds alleged for the removal of the
  officer in plain and intelligible language and must cite the time
  and place of the occurrence of each act alleged as a ground for
  removal with as much certainty as the nature of the case permits.
         SECTION 4.  Subchapter B, Chapter 87, Local Government Code,
  is amended by adding Section 87.0151 to read as follows:
         Sec. 87.0151.  ASSIGNMENT OF JUDGE IN CERTAIN CASES. (a)  
  Immediately after a petition for removal of a prosecuting attorney
  is filed under Section 87.015, the district clerk shall deliver a
  copy of the petition to the presiding judge of the administrative
  judicial region in which the court sits.
         (b)  On receiving a petition for removal of a prosecuting
  attorney under Subsection (a), the presiding judge of the
  administrative judicial region shall assign a district court judge
  of a judicial district that does not include the county in which the
  petition was filed to conduct the removal proceedings.
         SECTION 5.  Section 87.018, Local Government Code, is
  amended by amending Subsections (e) and (f) and adding Subsections
  (g) and (h) to read as follows:
         (e)  In a proceeding to remove a county attorney who is not a
  prosecuting attorney from office, the district attorney shall
  represent the state.  If the county does not have a district
  attorney, the county attorney from an adjoining county, as selected
  by the commissioners court of the county in which the proceeding is
  pending, shall represent the state.
         (f)  In a proceeding to remove a prosecuting attorney [the
  county attorney or district attorney] from office, the presiding
  judge of the administrative judicial region in which the petition
  for removal was filed shall appoint a prosecuting [the county]
  attorney from another judicial district or county, as applicable,
  in the administrative judicial region to [from an adjoining county,
  as selected by the commissioners court of the county in which the
  proceeding is pending, shall] represent the state [if the attorney
  who would otherwise represent the state under this section is also
  the subject of a pending removal proceeding].
         (g)  In a proceeding to remove a prosecuting attorney from
  office, a prosecuting attorney's public statement establishing
  that the prosecuting attorney adopted or enforced or intends to
  adopt or enforce a policy described by Section 87.011(3)(B) or
  permitted or intends to permit an attorney who is employed by or
  otherwise under the direction or control of the prosecuting
  attorney to act as described by Section 87.011(3)(C) creates a
  rebuttable presumption that the prosecuting attorney committed
  official misconduct.
         (h)  In a trial in which a prosecuting attorney is accused of
  committing official misconduct under Section 87.011(3)(B) or (C), a
  court may award reasonable attorney's fees and costs the
  prosecuting attorney personally spent related to the conduct of the
  proceeding on finding that the prosecuting attorney did not adopt
  or enforce a policy described by Section 87.011(3)(B) or permit an
  attorney who is employed by or otherwise under the direction or
  control of the prosecuting attorney to act as described by Section
  87.011(3)(C), as applicable.
         SECTION 6.  The changes in law made by this Act apply only to
  an action taken or public statement made by a prosecuting attorney
  on or after the effective date of this Act.
         SECTION 7.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution. If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2023.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 17 was passed by the House on April
  28, 2023, by the following vote:  Yeas 97, Nays 51, 1 present, not
  voting; that the House refused to concur in Senate amendments to
  H.B. No. 17 on May 23, 2023, and requested the appointment of a
  conference committee to consider the differences between the two
  houses; and that the House adopted the conference committee report
  on H.B. No. 17 on May 28, 2023, by the following vote:  Yeas 83,
  Nays 58, 2 present, not voting.
 
  ______________________________
  Chief Clerk of the House   
 
         I certify that H.B. No. 17 was passed by the Senate, with
  amendments, on May 19, 2023, by the following vote:  Yeas 20, Nays
  11; at the request of the House, the Senate appointed a conference
  committee to consider the differences between the two houses; and
  that the Senate adopted the conference committee report on H.B. No.
  17 on May 28, 2023, by the following vote:  Yeas 20, Nays 11.
 
  ______________________________
  Secretary of the Senate   
  APPROVED: __________________
                  Date       
   
           __________________
                Governor