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.