88R3327 JTZ-D
By: King S.B. No. 404
A BILL TO BE ENTITLED
AN ACT
relating to the reestablishment of the Prosecuting Attorneys
Coordinating Council.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle C, Title 2, Government Code, is amended
by adding Chapter 47 to read as follows:
CHAPTER 47. PROSECUTING ATTORNEYS COORDINATING COUNCIL
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 47.001. DEFINITIONS. In this chapter:
(1) "Complaint" means a written communication
submitted to the council by an individual residing in the
jurisdiction of the prosecuting attorney to whom the complaint
corresponds.
(2) "Council" means the Prosecuting Attorneys
Coordinating Council.
(3) "Formal hearing" means a public evidentiary
proceeding conducted before the council or by a special master.
(4) "Formal proceeding" means any proceeding the
council initiates following a formal hearing concerning the public
reprimand, disqualification, or removal of a prosecuting attorney.
(5) "Incompetence" means:
(A) gross ignorance or neglect of an official
duty;
(B) a physical or mental defect which prohibits
the prompt or proper discharge of official duties; or
(C) failure to maintain the qualifications
required by law for election to the office, including membership in
good standing of the State Bar of Texas.
(6) "Misconduct" means:
(A) unlawful behavior prohibited by Chapter 39,
Penal Code;
(B) an act that is a felony;
(C) an act that is a misdemeanor involving moral
turpitude; or
(D) wilful or persistent conduct inconsistent
with the proper performance of official duties.
(7) "Prosecuting attorney" means a district or county
attorney described by Section 21, Article V, Texas Constitution.
SUBCHAPTER B. PROSECUTING ATTORNEYS COORDINATING COUNCIL
Sec. 47.101. COUNCIL MEMBERSHIP. (a) The council consists
of seven members as follows:
(1) one member appointed by the governor;
(2) one member who is currently serving as a county
sheriff or municipal police chief, appointed by the governor;
(3) one member who is an incumbent judge of a court
with criminal jurisdiction, appointed by the supreme court;
(4) one member who is an elected county attorney;
(5) one member who is an elected district attorney;
(6) one member who represents the public and is not
licensed to practice law, appointed by the speaker of the house; and
(7) one member who represents the public and is not
licensed to practice law, appointed by the lieutenant governor.
(b) The supreme court shall establish the process for
selecting the members described by Subsections (a)(4) and (5).
(c) For purposes of this chapter, the duties of a council
member are in addition to the duties required for any elected
position held by the member, and membership on the council does not
constitute dual officeholding.
(d) A member of the council serves without compensation, but
is entitled to reimbursement for expenses incurred in attending
meetings or performing other council duties, as provided by the
General Appropriations Act.
Sec. 47.102. TERMS; VACANCIES. (a) The members of the
council serve staggered six-year terms as determined by the supreme
court.
(b) If a vacancy occurs on the council, a replacement who
meets the qualifications for the vacant position under Section
47.101(a) shall be appointed to serve for the remainder of the term.
Sec. 47.103. PRESIDING OFFICER. The member appointed by
the governor under Section 47.101(a)(1) serves as presiding officer
of the council. The presiding officer may vote on any matter before
the council.
SUBCHAPTER C. POWERS AND DUTIES
Sec. 47.201. ADMINISTRATIVE ATTACHMENT; SUPPORT. (a) The
council is an agency of the judicial branch of state government,
administratively attached to the supreme court.
(b) The supreme court shall provide administrative support
services, including human resource, budgetary, accounting,
purchasing, payroll, information technology, and legal support
services, to the council as necessary to carry out the purposes of
this chapter.
Sec. 47.202. POWERS AND DUTIES OF COUNCIL. (a) The council
shall:
(1) review and resolve complaints involving
incompetency and misconduct by prosecuting attorneys under this
chapter;
(2) provide notice to a prosecuting attorney who is
the subject of an investigation by the council that:
(A) specifies the matters under investigation
and the complaint against the attorney; and
(B) sets a date for a hearing or the taking of
testimony for investigation purposes;
(3) coordinate with statewide district and county
attorneys associations to carry out the purposes of this chapter;
and
(4) annually report to the governor, legislature, and
supreme court on or before December 1 on all council proceedings,
funding and staffing needs, and any recommendations for legislation
or rules necessary for effective criminal prosecutions.
(b) The council may:
(1) accept complaints that clearly allege facts of
incompetency or misconduct by a prosecuting attorney;
(2) initiate and conduct investigations for
incompetency or misconduct by prosecuting attorneys;
(3) hold formal hearings or formal proceedings on
complaints against and investigations of prosecuting attorneys;
(4) administer oaths;
(5) issue subpoenas for the attendance of witnesses
and to compel testimony and the production of books, records,
papers, accounts, and documents relevant to any investigation or
hearing;
(6) order the deposition of any person be taken in
accordance with the Texas Rules of Civil Procedure;
(7) respond to a district court's request for
recommendations on the appointment of an attorney to represent the
council in disqualification proceedings under Section 47.301(b);
and
(8) enter into agreements with other public or private
agencies, associations, or organizations to implement this
chapter.
(c) A council subpoena for the attendance of witnesses,
testimony, or production of evidence is enforceable by contempt
proceedings in a district court serving the county in which the
prosecuting attorney under investigation resides.
Sec. 47.203. PROHIBITED COMPLAINTS BY CONVICTED DEFENDANT
AGAINST PROSECUTING ATTORNEY. A person convicted of a criminal
offense may not file a complaint against a prosecuting attorney
under this chapter if the criminal offense corresponds or is
related to the complaint.
Sec. 47.204. COUNCIL ACTION ON COMPLAINT AGAINST
PROSECUTING ATTORNEY; PETITIONS FOR REMOVAL. (a) After examining
the records and proceedings before the council on any complaint
filed against a prosecuting attorney under this chapter, the
council by majority vote may:
(1) issue a public or private finding that the
prosecuting attorney is not incompetent or has not committed any
misconduct;
(2) issue a public or private reprimand to the
prosecuting attorney for deficient conduct of their duties which
does not rise to the level of incompetence or misconduct;
(3) request the supreme court to appoint a special
master who shall, after appropriate hearings, submit to the council
a report and recommendation on whether sufficient cause exists to
remove the prosecuting attorney under this chapter; or
(4) file a petition for removal of the prosecuting
attorney.
(b) A petition for removal by the council must:
(1) be filed in the name of the State of Texas in the
district court of the county in which the prosecuting attorney
resides and docketed on the civil docket; and
(2) contain allegations of incompetency or misconduct
and the facts on which the allegations are based.
(c) The trial on a petition for removal shall proceed in
accordance with the Texas Rules of Civil Procedure.
(d) All proceedings and records before the council or a
special master requested by the council are confidential and
privileged until:
(1) the proceedings and records are introduced in
evidence in any proceeding for removal; or
(2) the council issues a public reprimand.
Sec. 47.205. RULES. The council shall adopt rules as
necessary to administer and enforce this chapter.
SUBCHAPTER D. DISQUALIFICATION, SUSPENSION, OR REMOVAL OF
PROSECUTING ATTORNEY
Sec. 47.301. DISQUALIFICATION, SUSPENSION, OR REMOVAL OF
PROSECUTING ATTORNEY. (a) A prosecuting attorney may be
disqualified, suspended, or removed from office in accordance with
this chapter.
(b) When a petition for removal is filed under this chapter,
the judge of the court in which the petition is filed shall request
the appointment of a special judge to hear the case. On
appointment, the special judge shall appoint an attorney
representing the council to prosecute the case. The special judge
must select the attorney from a list of not fewer than five
qualified attorneys submitted by the council.
(c) A prosecuting attorney is disqualified from performing
the duties and functions or exercising the privileges of the
attorney's office if the council has filed a petition for removal of
the attorney from office under this chapter and remains
disqualified while the petition is pending before a district court.
(d) A prosecuting attorney is suspended from office if the
attorney has:
(1) been disbarred or suspended from the practice of
law in this state through trial or on agreement;
(2) been found guilty in a court of competent
jurisdiction of a misdemeanor involving moral turpitude or any
felony; or
(3) been found incompetent, or to have committed
misconduct, following a trial on the merits of a petition for
removal.
(e) On final adjudication or conviction of a prosecuting
attorney suspended from office under Subsection (d) for any cause
of action on which the attorney's suspension was based, the court
shall order the attorney removed from office.
Sec. 47.302. PROSECUTING ATTORNEY PRO TEM. (a) On
disqualification or suspension of a prosecuting attorney, the
duties of that attorney's office shall be performed by a
prosecuting attorney pro tem, who shall exercise all the powers and
duties of a prosecuting attorney.
(b) The prosecuting attorney pro tem shall be appointed by
the council, and shall serve until:
(1) the disqualification or suspension of the
prosecuting attorney is lifted; or
(2) a successor to a removed prosecuting attorney has
been appointed under Section 21, Article V, Texas Constitution, or
Section 87.017, Local Government Code.
Sec. 47.303. EFFECTS OF DISQUALIFICATION, SUSPENSION, OR
REMOVAL. (a) During a period of disqualification, a prosecuting
attorney is entitled to receive the compensation provided by law
for that office, but is disqualified from performing any official
duties imposed on the attorney's office by law or exercising any
privilege incident to that office.
(b) During a period of suspension, a prosecuting attorney:
(1) is not entitled to any compensation provided by
law for that office; and
(2) is disqualified from performing any official
duties imposed on that office by law or exercising any privilege
incident to that office.
(c) If a court judgment suspending or removing a prosecuting
attorney is reversed or vacated and when the reversing or vacating
judgment becomes final, the prosecuting attorney is entitled to the
compensation provided by law for that office from the date the
attorney was suspended or removed from office to the last day of the
term to which the attorney was elected or appointed to that office.
SECTION 2. (a) Not later than November 1, 2023, the Supreme
Court of Texas shall establish the process to select the members of
the Prosecuting Attorneys Coordinating Council in accordance with
Chapter 47, Government Code, as added by this Act.
(b) Not later than January 1, 2024, the appointing officials
shall appoint the members of the Prosecuting Attorneys Coordinating
Council in accordance with Chapter 47, Government Code, as added by
this Act.
SECTION 3. Not later than April 1, 2024, the Prosecuting
Attorneys Coordinating Council shall adopt the rules necessary to
implement Chapter 47, Government Code, as added by this Act.
SECTION 4. This Act takes effect September 1, 2023.