2023S0055-T 01/23/23

By: Middleton S.B. No. 648

A BILL TO BE ENTITLED

AN ACT

relating to the procedure for removing certain prosecuting attorneys for their policies on the enforcement of criminal offenses; providing a private cause of action.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 41, Government Code, is amended by adding Subchapter G to read as follows:

SUBCHAPTER G. ENFORCEMENT OF CRIMINAL OFFENSES

Sec. 41.371. DEFINITIONS. In this subchapter:

(1) "Policy" includes a formal, written rule or policy or an informal, unwritten policy.

(2) "Prosecuting attorney" means a district attorney, criminal district attorney, or county attorney with criminal jurisdiction.

(3) "Crime of violence" includes any criminal offense established in:

(A) Chapter 170A, Health and Safety Code;

(B) Chapter 171, Health and Safety Code;

(C) Chapter 19, Penal Code;

(D) Chapter 20, Penal Code;

(E) Chapter 20A, Penal Code; or

(F) Chapter 22, Penal Code.

(4) "Criminal offense against property" includes any criminal offense established in Title 7, Penal Code.

(5) "Criminal offense under the Election Code" includes any criminal offense established in the following chapters of the Election Code:

(A) Chapter 13;

(B) Chapter 33;

(C) Chapter 51;

(D) Chapter 61;

(E) Chapter 64; and

(F) Chapter 86.

Sec. 41.372. RULES. The attorney general may adopt the rules necessary for the attorney general to implement and fulfill the duties assigned under this subchapter.

Sec. 41.373. POLICY ON PROSECUTION OF CRIMINAL OFFENSES. (a) Except as provided by Subsection (b), a prosecuting attorney may not adopt, enforce, or implement a policy or practice, whether formal or informal, under which the prosecuting attorney or a subordinate of the attorney:

(1) categorically or systematically refuses to bring charges against individuals who commit:

(A) a crime of violence;

(B) a criminal offense against property; or

(C) a criminal offense under the Election Code;

(2) categorically or systematically refuses to seek capital punishment against offenders who commit capital crimes; or

(3) refuses to prosecute any criminal offense committed by a noncitizen in an effort to shield the offender from deportation or any type of adverse consequence under federal or state immigration law.

(b) Notwithstanding Subsection (a), a prosecuting attorney may adopt, enforce, or implement a policy or practice that is necessary to ensure compliance with:

(1) an injunction, judgment, or order issued by a court in a case in which the prosecuting attorney or one of the attorney's predecessors or privities was or is a named party; or

(2) an interpretation of law adopted by:

(A) the United States Supreme Court;

(B) the United States Court of Appeals for the Fifth Circuit;

(C) the Supreme Court of Texas;

(D) the Texas Court of Criminal Appeals; or

(E) the state court of appeals with jurisdiction over the prosecuting attorney and that office.

(c) The following may be used as evidence to establish that a prosecuting attorney has adopted a policy described by Subsection (a):

(1) the attorney's public statements; and

(2) evidence showing that the attorney or attorney's subordinates:

(A) routinely failed to prosecute criminal offenses described under Subsection (a)(1);

(B) routinely failed to pursue capital punishment against offenders who commit capital crimes; or

(C) routinely failed to prosecute criminal offenses committed by noncitizens.

(d) A prosecuting attorney who adopts, enforces, or implements a policy or practice described by Subsection (a) may be removed from office pursuant to Section 24, Article 5, Texas Constitution, and disbarred.

Sec. 41.374. INVESTIGATION. (a) The attorney general may take action under Subsection (b) if the attorney general has reason to believe that a prosecuting attorney has adopted, enforced, or implemented a policy or practice described in Section 41.373(a).

(b) In investigating a prosecuting attorney under this section, the attorney general may:

(1) require the prosecuting attorney to file on a prescribed form a statement in writing, under oath or affirmation, as to all the facts and circumstances concerning the alleged failure to comply with Section 41.373(a), and other information considered necessary by the attorney general;

(2) examine under oath a person in connection with the alleged failure to comply with Section 41.373(a); and

(3) execute in writing and serve on the prosecuting attorney a civil investigative demand requiring the prosecuting attorney to produce the documentary material and permit inspection and copying of the material under Section 41.375.

(c) The attorney general may use documentary material derived from information obtained under Subsection (b)(1) or (2), or copies of that material, as the attorney general determines necessary in the enforcement of this subchapter, including presentation before a court.

(d) If a prosecuting attorney or other person fails to file a statement as required by Subsection (b)(1) or fails to submit to an examination as required by Subsection (b)(2), the attorney general may file in any district court of this state a petition for an order to compel the prosecuting attorney or other person to file the statement or submit to the examination within a period stated by court order. Failure to comply with an order entered under this subsection is punishable as contempt.

(e) An order issued by a district court under this section is subject to appeal to the Supreme Court of Texas.

Section 41.375. CIVIL INVESTIGATIVE DEMAND. (a) The attorney general may issue a civil investigative demand in compliance with this section.

(b) An investigative demand must:

(1) state the general subject matter of the investigation;

(2) describe the class or classes of documentary material to be produced with reasonable specificity to fairly indicate the documentary material demanded;

(3) prescribe a return date within which the documentary material is to be produced; and

(4) identify an authorized employee of the attorney general to whom the documentary material is to be made available for inspection and copying.

(c) A civil investigative demand may require disclosure of any documentary material that is discoverable under the Texas Rules of Civil Procedure.

(d) Service of an investigative demand may be made by:

(1) delivering an executed copy of the demand to the person to be served or to a partner, an officer, or an agent authorized by appointment or by law to receive service of process on behalf of that person;

(2) delivering an executed copy of the demand to the principal place of business in this state of the person to be served; or

(3) mailing by registered or certified mail an executed copy of the demand addressed to the person to be served at the person's principal place of business in this state or, if the person has no place of business in this state, to the person's principal office or place of business.

(e) Documentary material demanded under this section shall be produced for inspection and copying during normal business hours at the office of the attorney general or as agreed by the person served and the attorney general.

(f) The attorney general shall prescribe reasonable terms and conditions allowing the documentary material to be available for inspection and copying by the person who produced the material or by an authorized representative of that person. The attorney general may use the documentary material or copies of it as the attorney general determines necessary in the enforcement of this subchapter, including presentation before a court.

(g) This section does not in any way limit the authority of the attorney general to conduct investigations or to access a person's documentary materials or other information under another state or federal law, the Texas Rules of Civil Procedure, or the Federal Rules of Civil Procedure.

(h) If a prosecuting attorney or other person fails to comply with an investigative demand, or if copying and reproduction of the documentary material demanded cannot be satisfactorily accomplished and the person refuses to surrender the documentary material, the attorney general may file in any district court in the state a petition for an order to enforce the investigative demand.

(i) If a petition is filed under Subsection (h), the court may determine the matter presented and may enter an order to implement this section.

(j) Failure to comply with a final order entered under Subsection (i) is punishable by contempt.

(k) A final order issued by a district court under Subsection (i) is subject to appeal to the Supreme Court of Texas.

Sec. 41.376. COMPLAINT; REMOVAL BY ATTORNEY GENERAL. (a) Notwithstanding any other law, including Chapter 87, Local Government Code, any resident of this state may file a complaint with the attorney general if the person asserts facts supporting an allegation that a prosecuting attorney in the county where that individual resides has violated or is violating Section 41.373(a). The person must include a sworn statement with the complaint stating that to the best of the person's knowledge, all of the facts asserted in the complaint are true and correct.

(b) Notwithstanding any other law, including Chapter 87, Local Government Code, and Chapter 15, Civil Practice and Remedies Code, if the attorney general determines that a complaint filed under Subsection (a) against a prosecuting attorney is valid, or if the attorney general otherwise has reason to believe that a prosecuting attorney has violated or is violating Section 41.373(a), the attorney general may bring an action in a district court of the attorney general's choosing for the removal from office of the prosecuting attorney for violating Section 41.373(a).

(c) The petition must be addressed to the district judge of the court in which it is filed. The petition must set forth the grounds alleged for the removal of the prosecuting attorney in plain and intelligible language.

(d) Notwithstanding any other law, including Chapter 15, Civil Practice and Remedies Code, and Rule 86, Texas Rules of Civil Procedure, an action brought by the attorney general under this section may not be transferred to a different venue without the written consent of all parties.

Sec. 41.377. REMOVAL BY PRIVATE ACTION. (a) Notwithstanding any other law, including Chapter 87, Local Government Code, and Chapter 15, Civil Practice and Remedies Code, any resident of this state may bring an action in a district court of that individual's choosing for the removal from office of a prosecuting attorney in the county where that individual resides for violating Section 41.373(a). At least one of the parties who files the petition must swear to it at or before the filing.

(b) The petition must be addressed to the district judge of the court in which it is filed. The petition must set forth the grounds alleged for the removal of the prosecuting attorney in plain and intelligible language.

(c) The attorney general may intervene in an action brought under this section on the request of the person who brings the action.

(d) Notwithstanding any other law, including Chapter 15, Civil Practice and Remedies Code, and Rule 86, Texas Rules of Civil Procedure, an action brought under this section may not be transferred to a different venue without the written consent of all parties.

Sec. 41.378. SUSPENSION PENDING TRIAL; TEMPORARY APPOINTEE. (a) After a petition for removal is filed under Section 41.376 or 41.377, the district judge may temporarily suspend the prosecuting attorney and may appoint another person to perform the duties of the office.

(b) The judge may not suspend the prosecuting attorney until the person appointed to serve executes a bond, with at least two good and sufficient sureties, in an amount fixed by the judge and conditioned as required by the judge. The bond shall be used to pay damages and costs to the suspended prosecuting attorney if the grounds for removal are found at trial to be insufficient or untrue. In an action to recover on the bond, it is necessary to allege and prove that the temporary appointee actively aided and instigated the filing and prosecution of the removal action. The suspended prosecuting attorney must also serve written notice on the temporary appointee and the appointee's bondsman, within 90 days after the date the bond is executed, stating that the attorney intends to hold them liable on the bond and stating the grounds for that liability.

(c) If the final judgment establishes the prosecuting attorney's right to the office, the county that employs the attorney shall pay the attorney from the general fund of the county an amount equal to the compensation received by the temporary appointee.

Sec. 41.379. TRIAL. (a) Prosecuting attorneys may be removed under this subchapter only following a trial by jury.

(b) The trial for removal of a prosecuting attorney and the proceedings connected with the trial shall be conducted as much as possible in accordance with the rules and practice of the court in other civil cases, in the name of the State of Texas, and on the relation of the person filing the petition.

(c) Under a proper charge applicable to the facts of the case, the judge shall instruct the jury to find from the evidence whether the grounds for removal alleged in the petition are true. If the petition alleges more than one ground for removal, the jury shall indicate in the verdict which grounds are sustained by the evidence and which are not sustained.

(d) Notwithstanding any other law, the attorney general shall represent the state in a proceeding for removal brought under Section 41.376. In a proceeding for removal brought under Section 41.377, the state may be represented by the attorney general or by lawyers retained by the person filing the petition.

(e) Notwithstanding any other law, a prosecuting attorney may not assert any immunity defense in a removal proceeding brought under Section 41.376 or 41.377, including sovereign immunity, governmental immunity, official immunity, prosecutorial immunity, or qualified immunity, and all such immunity defenses are waived and abolished in any removal proceeding brought under this subchapter.

Sec. 41.380. REMOVAL FROM OFFICE. (a) If, after a jury trial held by the district court, the prosecuting attorney is found to have violated Section 41.373(a), the court shall immediately order the prosecuting attorney removed from office. The order of removal shall take effect immediately upon issuance and may not be stayed pending appeal.

(b) The governor shall fill the vacancy by appointing a new prosecuting attorney to finish the term of the removed prosecuting attorney.

(c) The removed prosecuting attorney shall be restored to office if:

(1) an appellate court judgment reversing the jury's findings becomes final by the conclusion of direct appeal; and

(2) the term that the removed prosecuting attorney was serving at the time of the attorney's removal from office has not expired.

Sec. 41.381. APPEAL. (a) Either party to a removal action may appeal the final judgment to the court of appeals in the manner provided for in other civil cases. If the prosecuting attorney has not been suspended from office, the attorney is not required to post an appeal bond but may be required to post a bond for costs.

(b) Notwithstanding any other law, an appeal of a removal action takes precedence over the ordinary business of the court of appeals and shall be decided with all convenient dispatch. If the trial court judgment is not set aside or suspended, the court of appeals shall issue its mandate in the case within five days after the date the court renders its judgment.

Sec. 41.382. DISBARMENT. (a) In this section, "chief disciplinary counsel" has the meaning assigned by Section 81.002.

(b) A prosecuting attorney performs an act that constitutes professional misconduct and for which the prosecuting attorney's license to practice law in this state shall be revoked if the prosecuting attorney violates Section 41.373(a).

(c) On a prosecuting attorney's removal from office under Section 41.380, the chief disciplinary counsel shall revoke the prosecuting attorney's license to practice law in this state no later than the 30th day from the date the order becomes final.

(d) If the chief disciplinary counsel fails to revoke the prosecuting attorney's license to practice law in this state as required by this section, then any resident of this state has standing to bring and may bring an action for injunction or a writ of mandamus directing the chief disciplinary counsel to comply with the requirements of this section. Sovereign immunity, governmental immunity, official immunity, and qualified immunity are waived and abolished in any action brought under this subsection.

Sec. 41.383. REMOVAL PROCEEDINGS NONEXCLUSIVE. The removal proceedings established in this subchapter are nonexclusive, and they supplement and do not supplant the removal proceedings for prosecuting attorneys established elsewhere in state law, including the removal proceedings established in Chapter 87, Local Government Code.

Sec. 41.384. IMMUNITIES. (a) Notwithstanding any other law, the state and each of its officers and employees shall have sovereign immunity, its political subdivisions and each of their officers and employees shall have governmental immunity, and each officer and employee of this state or a political subdivision shall have official immunity, as well as sovereign or governmental immunity, as appropriate, in any action, claim, counterclaim, or any type of legal or equitable action that challenges the validity of any provision or application of this subchapter, on constitutional grounds or otherwise, or that seeks to prevent or enjoin the state, its political subdivisions, or any officer, employee, or agent of this state or a political subdivision from enforcing any provision or application of this subchapter, or from filing, hearing, adjudicating, or docketing a removal proceeding brought under Section 41.376 or 41.377, unless that immunity has been abrogated or preempted by federal law in a manner consistent with the Constitution of the United States. The sovereign immunity conferred by this section upon the state and each of its officers and employees includes the constitutional sovereign immunity recognized by the United States Supreme Court in Seminole Tribe of Florida v. Florida 706 (1999), which applies in both state and federal court and which may not be abrogated by Congress or by any state or federal court except pursuant to legislation authorized by Section 5 of the Fourteenth Amendment, by the Bankruptcy Clause of Article I, by the federal government's eminent domain powers, or by Congress's powers to raise and support armies and to provide and maintain a navy.

(b) Notwithstanding any other law, the immunities conferred by Subsection (a) shall apply in every court, both state and federal, and in every adjudicative proceeding of any type whatsoever.

(c) Notwithstanding any other law, no provision of state law may be construed to waive or abrogate an immunity described in Subsection (a) unless it expressly waives or abrogates immunity with specific reference to this section.

(d) Notwithstanding any other law, no attorney representing the state, its political subdivisions, or any officer, employee, or agent of this state or a political subdivision is authorized or permitted to waive an immunity described by Subsection (a) or take any action that would result in a waiver of that immunity, and any such action or purported waiver shall be regarded as a legal nullity and an ultra vires act.

(e) Notwithstanding any other law, including Chapter 37, Civil Practice and Remedies Code, and Sections 22.002, 22.221, and 24.007 through 24.011, Government Code, no court of this state may award declaratory or injunctive relief, or any type of writ, that would pronounce any provision or application of this subchapter invalid or unconstitutional, or that would restrain the state; its political subdivisions, any officer, employee, or agent of this state or a political subdivision; or any person from enforcing any provision or application of this subchapter, or from filing, hearing, adjudicating, or docketing a removal proceeding brought under Section 41.376 or 41.377, and no court of this state shall have jurisdiction to consider any action, claim, or counterclaim that seeks such relief.

(f) Nothing in this section or subchapter shall be construed to prevent a litigant from asserting the invalidity or unconstitutionality of any provision or application of this subchapter as a defense to any action, claim, or counterclaim brought against that litigant.

(g) Notwithstanding any other law, any judicial relief issued by a court of this state that disregards the immunities conferred by Subsection (a) or the limitations on jurisdiction and relief imposed by Subsection (e) shall be regarded as a legal nullity because it was issued by a court without jurisdiction, and may not be enforced or obeyed by any officer, employee, or agent of this state or a political subdivision, judicial or otherwise.

(h) Notwithstanding any other law, any writ, injunction, or declaratory judgment issued by a court of this state that purports to restrain the state; its political subdivisions; any officer, employee, or agent of this state or a political subdivision; or any person from filing, hearing, adjudicating, or docketing a removal proceeding brought under Section 41.376 or 41.377 shall be regarded as a legal nullity and a violation of the Due Process Clause of the Fourteenth Amendment, and may not be enforced or obeyed by any officer, employee, or agent of this state or a political subdivision, judicial or otherwise.

SECTION 2. Chapter 614, Government Code, is amended by adding Subchapter N to read as follows:

SUBCHAPTER N. RETALIATION PROHIBITED FOR CERTAIN COMPLAINTS

Sec. 614.251. DEFINITION. In this subchapter, "law enforcement agency" means an agency of this state or a political subdivision of this state that employs peace officers.

Sec. 614.252. PROHIBITION. A law enforcement agency may not suspend or terminate the employment of, or take other adverse personnel action against, a peace officer or other employee who in good faith submits a complaint to the attorney general under Section 41.376, including a complaint based on the refusal by a prosecuting attorney to prosecute a criminal offense in connection with an affidavit made by a peace officer or other employee alleging that probable cause exists to believe a person committed a criminal offense.

Sec. 614.253. RELIEF FOR PEACE OFFICER. (a) A peace officer or other employee whose employment is suspended or terminated or who is subjected to an adverse personnel action in violation of Section 614.252 may bring an action for:

(1) injunctive relief;

(2) compensatory damages;

(3) court costs; and

(4) reasonable attorney's fees.

(b) In addition to relief under Subsection (a), a peace officer or employee whose employment is suspended or terminated in violation of Section 614.252 is entitled to:

(1) reinstatement to the officer's or employee's former position or an equivalent position;

(2) compensation for wages lost during the period of suspension or termination; and

(3) reinstatement of fringe benefits and seniority rights lost because of the suspension or termination.

Sec. 614.254. WAIVER OF IMMUNITY. Sovereign and governmental immunity to suit and from liability is waived to the extent of liability created by this subchapter.

Sec. 614.255. NOTICE TO PEACE OFFICERS. (a) A law enforcement agency shall inform its employees of their rights under this subchapter by posting a sign in a prominent and visible location in the agency.

(b) The attorney general shall prescribe the design and content of the sign required by this section.

SECTION 3. Subchapter A, Chapter 87, Local Government Code, is amended by adding Section 87.002 to read as follows:

Sec. 87.002. REMOVAL PROCEEDINGS NONEXCLUSIVE. The removal proceedings established in this chapter are nonexclusive, and they supplement and do not supplant the removal proceedings established elsewhere in state law, including the removal proceedings for prosecuting attorneys established in Chapter 41, Government Code.

SECTION 4. 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.