Texas 88th Regular Session (2023)

Texas House Bill HB17 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	H.B. No. 17
2	2
3	3
4	4	AN ACT
5	5	relating to official misconduct by and removal of prosecuting
6	6	attorneys.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Section 87.011, Local Government Code, is
9	9	amended by amending Subdivision (3) and adding Subdivisions (4) and
10	10	(5) to read as follows:
11	11	(3) "Official misconduct" means intentional, unlawful
12	12	behavior relating to official duties by an officer entrusted with
13	13	the administration of justice or the execution of the law. The term
14	14	includes:
15	15	(A) an intentional or corrupt failure, refusal,
16	16	or neglect of an officer to perform a duty imposed on the officer by
17	17	law;
18	18	(B) a prosecuting attorney's adoption or
19	19	enforcement of a policy of refusing to prosecute a class or type of
20	20	criminal offense under state law or instructing law enforcement to
21	21	refuse to arrest individuals suspected of committing a class or
22	22	type of offense under state law, except a policy adopted:
23	23	(i) in compliance with state law or an
24	24	injunction, judgment, or other court order;
25	25	(ii) in response to a reasonable
26	26	evidentiary impediment to prosecution; or
27	27	(iii) to provide for diversion or similar
28	28	conditional dismissals of cases when permissible under state law;
29	29	or
30	30	(C) permitting an attorney who is employed by or
31	31	otherwise under the direction or control of the prosecuting
32	32	attorney to refuse to prosecute a class or type of criminal offense
33	33	under state law or instruct law enforcement to refuse to arrest
34	34	individuals suspected of committing a class or type of offense
35	35	under state law for any reason other than a reason described by
36	36	Paragraph (B)(i), (ii), or (iii).
37	37	(4) "Policy" means an instruction or directive
38	38	expressed in any manner.
39	39	(5) "Prosecuting attorney" means a district attorney
40	40	or a county attorney with criminal jurisdiction.
41	41	SECTION 2. Subchapter B, Chapter 87, Local Government Code,
42	42	is amended by adding Section 87.0131 to read as follows:
43	43	Sec. 87.0131. DEFENSE IN CERTAIN CASES. It is a defense in
44	44	an action alleging a prosecuting attorney committed official
45	45	misconduct described by Section 87.011(3)(C) that the prosecuting
46	46	attorney took action immediately on discovering an attorney
47	47	employed by or otherwise under the direction or control of the
48	48	prosecuting attorney was acting as described by Section
49	49	87.011(3)(C).
50	50	SECTION 3. Section 87.015, Local Government Code, is
51	51	amended by amending Subsections (b) and (c) and adding Subsection
52	52	(b-1) to read as follows:
53	53	(b) A petition for removal of an officer other than a
54	54	prosecuting attorney may be filed by any [Any] resident of this
55	55	state who has lived for at least six months in the county in which
56	56	the petition is to be filed and who is not currently under
57	57	indictment in the county [may file the petition]. At least one of
58	58	the parties who files the petition must swear to it at or before the
59	59	filing.
60	60	(b-1) A petition for removal of a prosecuting attorney may
61	61	be filed by any resident of this state who, at the time of the
62	62	alleged cause of removal, lives and has lived for at least six
63	63	months in the county in which the alleged cause of removal occurred
64	64	and who is not currently charged with a criminal offense in that
65	65	county. At least one of the parties who files the petition must
66	66	swear to it at or before the filing.
67	67	(c) A [The] petition for removal of an officer other than a
68	68	prosecuting attorney must be addressed to the district judge of the
69	69	court in which it is filed. A petition for removal of a prosecuting
70	70	attorney must be addressed to the presiding judge of the
71	71	administrative judicial region in which the petition is filed. The
72	72	petition must set forth the grounds alleged for the removal of the
73	73	officer in plain and intelligible language and must cite the time
74	74	and place of the occurrence of each act alleged as a ground for
75	75	removal with as much certainty as the nature of the case permits.
76	76	SECTION 4. Subchapter B, Chapter 87, Local Government Code,
77	77	is amended by adding Section 87.0151 to read as follows:
78	78	Sec. 87.0151. ASSIGNMENT OF JUDGE IN CERTAIN CASES. (a)
79	79	Immediately after a petition for removal of a prosecuting attorney
80	80	is filed under Section 87.015, the district clerk shall deliver a
81	81	copy of the petition to the presiding judge of the administrative
82	82	judicial region in which the court sits.
83	83	(b) On receiving a petition for removal of a prosecuting
84	84	attorney under Subsection (a), the presiding judge of the
85	85	administrative judicial region shall assign a district court judge
86	86	of a judicial district that does not include the county in which the
87	87	petition was filed to conduct the removal proceedings.
88	88	SECTION 5. Section 87.018, Local Government Code, is
89	89	amended by amending Subsections (e) and (f) and adding Subsections
90	90	(g) and (h) to read as follows:
91	91	(e) In a proceeding to remove a county attorney who is not a
92	92	prosecuting attorney from office, the district attorney shall
93	93	represent the state. If the county does not have a district
94	94	attorney, the county attorney from an adjoining county, as selected
95	95	by the commissioners court of the county in which the proceeding is
96	96	pending, shall represent the state.
97	97	(f) In a proceeding to remove a prosecuting attorney [the
98	98	county attorney or district attorney] from office, the presiding
99	99	judge of the administrative judicial region in which the petition
100	100	for removal was filed shall appoint a prosecuting [the county]
101	101	attorney from another judicial district or county, as applicable,
102	102	in the administrative judicial region to [from an adjoining county,
103	103	as selected by the commissioners court of the county in which the
104	104	proceeding is pending, shall] represent the state [if the attorney
105	105	who would otherwise represent the state under this section is also
106	106	the subject of a pending removal proceeding].
107	107	(g) In a proceeding to remove a prosecuting attorney from
108	108	office, a prosecuting attorney's public statement establishing
109	109	that the prosecuting attorney adopted or enforced or intends to
110	110	adopt or enforce a policy described by Section 87.011(3)(B) or
111	111	permitted or intends to permit an attorney who is employed by or
112	112	otherwise under the direction or control of the prosecuting
113	113	attorney to act as described by Section 87.011(3)(C) creates a
114	114	rebuttable presumption that the prosecuting attorney committed
115	115	official misconduct.
116	116	(h) In a trial in which a prosecuting attorney is accused of
117	117	committing official misconduct under Section 87.011(3)(B) or (C), a
118	118	court may award reasonable attorney's fees and costs the
119	119	prosecuting attorney personally spent related to the conduct of the
120	120	proceeding on finding that the prosecuting attorney did not adopt
121	121	or enforce a policy described by Section 87.011(3)(B) or permit an
122	122	attorney who is employed by or otherwise under the direction or
123	123	control of the prosecuting attorney to act as described by Section
124	124	87.011(3)(C), as applicable.
125	125	SECTION 6. The changes in law made by this Act apply only to
126	126	an action taken or public statement made by a prosecuting attorney
127	127	on or after the effective date of this Act.
128	128	SECTION 7. This Act takes effect immediately if it receives
129	129	a vote of two-thirds of all the members elected to each house, as
130	130	provided by Section 39, Article III, Texas Constitution. If this
131	131	Act does not receive the vote necessary for immediate effect, this
132	132	Act takes effect September 1, 2023.
133	133	______________________________ ______________________________
134	134	President of the Senate Speaker of the House
135	135	I certify that H.B. No. 17 was passed by the House on April
136	136	28, 2023, by the following vote: Yeas 97, Nays 51, 1 present, not
137	137	voting; that the House refused to concur in Senate amendments to
138	138	H.B. No. 17 on May 23, 2023, and requested the appointment of a
139	139	conference committee to consider the differences between the two
140	140	houses; and that the House adopted the conference committee report
141	141	on H.B. No. 17 on May 28, 2023, by the following vote: Yeas 83,
142	142	Nays 58, 2 present, not voting.
143	143	______________________________
144	144	Chief Clerk of the House
145	145	I certify that H.B. No. 17 was passed by the Senate, with
146	146	amendments, on May 19, 2023, by the following vote: Yeas 20, Nays
147	147	11; at the request of the House, the Senate appointed a conference
148	148	committee to consider the differences between the two houses; and
149	149	that the Senate adopted the conference committee report on H.B. No.
150	150	17 on May 28, 2023, by the following vote: Yeas 20, Nays 11.
151	151	______________________________
152	152	Secretary of the Senate
153	153	APPROVED: __________________
154	154	Date
155	155	__________________
156	156	Governor