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Texas Senate Bill SB648

Texas 2023 - 88th Regular

Texas Senate Bill SB648 Compare Versions

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11 2023S0055-T 01/23/23
22 By: Middleton S.B. No. 648
33
44
55 A BILL TO BE ENTITLED
66 AN ACT
77 relating to the procedure for removing certain prosecuting
88 attorneys for their policies on the enforcement of criminal
99 offenses; providing a private cause of action.
1010 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1111 SECTION 1. Chapter 41, Government Code, is amended by
1212 adding Subchapter G to read as follows:
1313 SUBCHAPTER G. ENFORCEMENT OF CRIMINAL OFFENSES
1414 Sec. 41.371. DEFINITIONS. In this subchapter:
1515 (1) "Policy" includes a formal, written rule or policy
1616 or an informal, unwritten policy.
1717 (2) "Prosecuting attorney" means a district attorney,
1818 criminal district attorney, or county attorney with criminal
1919 jurisdiction.
2020 (3) "Crime of violence" includes any criminal offense
2121 established in:
2222 (A) Chapter 170A, Health and Safety Code;
2323 (B) Chapter 171, Health and Safety Code;
2424 (C) Chapter 19, Penal Code;
2525 (D) Chapter 20, Penal Code;
2626 (E) Chapter 20A, Penal Code; or
2727 (F) Chapter 22, Penal Code.
2828 (4) "Criminal offense against property" includes any
2929 criminal offense established in Title 7, Penal Code.
3030 (5) "Criminal offense under the Election Code"
3131 includes any criminal offense established in the following chapters
3232 of the Election Code:
3333 (A) Chapter 13;
3434 (B) Chapter 33;
3535 (C) Chapter 51;
3636 (D) Chapter 61;
3737 (E) Chapter 64; and
3838 (F) Chapter 86.
3939 Sec. 41.372. RULES. The attorney general may adopt the
4040 rules necessary for the attorney general to implement and fulfill
4141 the duties assigned under this subchapter.
4242 Sec. 41.373. POLICY ON PROSECUTION OF CRIMINAL OFFENSES.
4343 (a) Except as provided by Subsection (b), a prosecuting attorney
4444 may not adopt, enforce, or implement a policy or practice, whether
4545 formal or informal, under which the prosecuting attorney or a
4646 subordinate of the attorney:
4747 (1) categorically or systematically refuses to bring
4848 charges against individuals who commit:
4949 (A) a crime of violence;
5050 (B) a criminal offense against property; or
5151 (C) a criminal offense under the Election Code;
5252 (2) categorically or systematically refuses to seek
5353 capital punishment against offenders who commit capital crimes; or
5454 (3) refuses to prosecute any criminal offense
5555 committed by a noncitizen in an effort to shield the offender from
5656 deportation or any type of adverse consequence under federal or
5757 state immigration law.
5858 (b) Notwithstanding Subsection (a), a prosecuting attorney
5959 may adopt, enforce, or implement a policy or practice that is
6060 necessary to ensure compliance with:
6161 (1) an injunction, judgment, or order issued by a
6262 court in a case in which the prosecuting attorney or one of the
6363 attorney's predecessors or privities was or is a named party; or
6464 (2) an interpretation of law adopted by:
6565 (A) the United States Supreme Court;
6666 (B) the United States Court of Appeals for the
6767 Fifth Circuit;
6868 (C) the Supreme Court of Texas;
6969 (D) the Texas Court of Criminal Appeals; or
7070 (E) the state court of appeals with jurisdiction
7171 over the prosecuting attorney and that office.
7272 (c) The following may be used as evidence to establish that
7373 a prosecuting attorney has adopted a policy described by Subsection
7474 (a):
7575 (1) the attorney's public statements; and
7676 (2) evidence showing that the attorney or attorney's
7777 subordinates:
7878 (A) routinely failed to prosecute criminal
7979 offenses described under Subsection (a)(1);
8080 (B) routinely failed to pursue capital
8181 punishment against offenders who commit capital crimes; or
8282 (C) routinely failed to prosecute criminal
8383 offenses committed by noncitizens.
8484 (d) A prosecuting attorney who adopts, enforces, or
8585 implements a policy or practice described by Subsection (a) may be
8686 removed from office pursuant to Section 24, Article 5, Texas
8787 Constitution, and disbarred.
8888 Sec. 41.374. INVESTIGATION. (a) The attorney general may
8989 take action under Subsection (b) if the attorney general has reason
9090 to believe that a prosecuting attorney has adopted, enforced, or
9191 implemented a policy or practice described in Section 41.373(a).
9292 (b) In investigating a prosecuting attorney under this
9393 section, the attorney general may:
9494 (1) require the prosecuting attorney to file on a
9595 prescribed form a statement in writing, under oath or affirmation,
9696 as to all the facts and circumstances concerning the alleged
9797 failure to comply with Section 41.373(a), and other information
9898 considered necessary by the attorney general;
9999 (2) examine under oath a person in connection with the
100100 alleged failure to comply with Section 41.373(a); and
101101 (3) execute in writing and serve on the prosecuting
102102 attorney a civil investigative demand requiring the prosecuting
103103 attorney to produce the documentary material and permit inspection
104104 and copying of the material under Section 41.375.
105105 (c) The attorney general may use documentary material
106106 derived from information obtained under Subsection (b)(1) or (2),
107107 or copies of that material, as the attorney general determines
108108 necessary in the enforcement of this subchapter, including
109109 presentation before a court.
110110 (d) If a prosecuting attorney or other person fails to file
111111 a statement as required by Subsection (b)(1) or fails to submit to
112112 an examination as required by Subsection (b)(2), the attorney
113113 general may file in any district court of this state a petition for
114114 an order to compel the prosecuting attorney or other person to file
115115 the statement or submit to the examination within a period stated by
116116 court order. Failure to comply with an order entered under this
117117 subsection is punishable as contempt.
118118 (e) An order issued by a district court under this section
119119 is subject to appeal to the Supreme Court of Texas.
120120 Section 41.375. CIVIL INVESTIGATIVE DEMAND. (a) The
121121 attorney general may issue a civil investigative demand in
122122 compliance with this section.
123123 (b) An investigative demand must:
124124 (1) state the general subject matter of the
125125 investigation;
126126 (2) describe the class or classes of documentary
127127 material to be produced with reasonable specificity to fairly
128128 indicate the documentary material demanded;
129129 (3) prescribe a return date within which the
130130 documentary material is to be produced; and
131131 (4) identify an authorized employee of the attorney
132132 general to whom the documentary material is to be made available for
133133 inspection and copying.
134134 (c) A civil investigative demand may require disclosure of
135135 any documentary material that is discoverable under the Texas Rules
136136 of Civil Procedure.
137137 (d) Service of an investigative demand may be made by:
138138 (1) delivering an executed copy of the demand to the
139139 person to be served or to a partner, an officer, or an agent
140140 authorized by appointment or by law to receive service of process on
141141 behalf of that person;
142142 (2) delivering an executed copy of the demand to the
143143 principal place of business in this state of the person to be
144144 served; or
145145 (3) mailing by registered or certified mail an
146146 executed copy of the demand addressed to the person to be served at
147147 the person's principal place of business in this state or, if the
148148 person has no place of business in this state, to the person's
149149 principal office or place of business.
150150 (e) Documentary material demanded under this section shall
151151 be produced for inspection and copying during normal business hours
152152 at the office of the attorney general or as agreed by the person
153153 served and the attorney general.
154154 (f) The attorney general shall prescribe reasonable terms
155155 and conditions allowing the documentary material to be available
156156 for inspection and copying by the person who produced the material
157157 or by an authorized representative of that person. The attorney
158158 general may use the documentary material or copies of it as the
159159 attorney general determines necessary in the enforcement of this
160160 subchapter, including presentation before a court.
161161 (g) This section does not in any way limit the authority of
162162 the attorney general to conduct investigations or to access a
163163 person's documentary materials or other information under another
164164 state or federal law, the Texas Rules of Civil Procedure, or the
165165 Federal Rules of Civil Procedure.
166166 (h) If a prosecuting attorney or other person fails to
167167 comply with an investigative demand, or if copying and reproduction
168168 of the documentary material demanded cannot be satisfactorily
169169 accomplished and the person refuses to surrender the documentary
170170 material, the attorney general may file in any district court in the
171171 state a petition for an order to enforce the investigative demand.
172172 (i) If a petition is filed under Subsection (h), the court
173173 may determine the matter presented and may enter an order to
174174 implement this section.
175175 (j) Failure to comply with a final order entered under
176176 Subsection (i) is punishable by contempt.
177177 (k) A final order issued by a district court under
178178 Subsection (i) is subject to appeal to the Supreme Court of Texas.
179179 Sec. 41.376. COMPLAINT; REMOVAL BY ATTORNEY GENERAL. (a)
180180 Notwithstanding any other law, including Chapter 87, Local
181181 Government Code, any resident of this state may file a complaint
182182 with the attorney general if the person asserts facts supporting an
183183 allegation that a prosecuting attorney in the county where that
184184 individual resides has violated or is violating Section 41.373(a).
185185 The person must include a sworn statement with the complaint
186186 stating that to the best of the person's knowledge, all of the facts
187187 asserted in the complaint are true and correct.
188188 (b) Notwithstanding any other law, including Chapter 87,
189189 Local Government Code, and Chapter 15, Civil Practice and Remedies
190190 Code, if the attorney general determines that a complaint filed
191191 under Subsection (a) against a prosecuting attorney is valid, or if
192192 the attorney general otherwise has reason to believe that a
193193 prosecuting attorney has violated or is violating Section
194194 41.373(a), the attorney general may bring an action in a district
195195 court of the attorney general's choosing for the removal from
196196 office of the prosecuting attorney for violating Section 41.373(a).
197197 (c) The petition must be addressed to the district judge of
198198 the court in which it is filed. The petition must set forth the
199199 grounds alleged for the removal of the prosecuting attorney in
200200 plain and intelligible language.
201201 (d) Notwithstanding any other law, including Chapter 15,
202202 Civil Practice and Remedies Code, and Rule 86, Texas Rules of Civil
203203 Procedure, an action brought by the attorney general under this
204204 section may not be transferred to a different venue without the
205205 written consent of all parties.
206206 Sec. 41.377. REMOVAL BY PRIVATE ACTION. (a)
207207 Notwithstanding any other law, including Chapter 87, Local
208208 Government Code, and Chapter 15, Civil Practice and Remedies Code,
209209 any resident of this state may bring an action in a district court
210210 of that individual's choosing for the removal from office of a
211211 prosecuting attorney in the county where that individual resides
212212 for violating Section 41.373(a). At least one of the parties who
213213 files the petition must swear to it at or before the filing.
214214 (b) The petition must be addressed to the district judge of
215215 the court in which it is filed. The petition must set forth the
216216 grounds alleged for the removal of the prosecuting attorney in
217217 plain and intelligible language.
218218 (c) The attorney general may intervene in an action brought
219219 under this section on the request of the person who brings the
220220 action.
221221 (d) Notwithstanding any other law, including Chapter 15,
222222 Civil Practice and Remedies Code, and Rule 86, Texas Rules of Civil
223223 Procedure, an action brought under this section may not be
224224 transferred to a different venue without the written consent of all
225225 parties.
226226 Sec. 41.378. SUSPENSION PENDING TRIAL; TEMPORARY
227227 APPOINTEE. (a) After a petition for removal is filed under Section
228228 41.376 or 41.377, the district judge may temporarily suspend the
229229 prosecuting attorney and may appoint another person to perform the
230230 duties of the office.
231231 (b) The judge may not suspend the prosecuting attorney until
232232 the person appointed to serve executes a bond, with at least two
233233 good and sufficient sureties, in an amount fixed by the judge and
234234 conditioned as required by the judge. The bond shall be used to pay
235235 damages and costs to the suspended prosecuting attorney if the
236236 grounds for removal are found at trial to be insufficient or untrue.
237237 In an action to recover on the bond, it is necessary to allege and
238238 prove that the temporary appointee actively aided and instigated
239239 the filing and prosecution of the removal action. The suspended
240240 prosecuting attorney must also serve written notice on the
241241 temporary appointee and the appointee's bondsman, within 90 days
242242 after the date the bond is executed, stating that the attorney
243243 intends to hold them liable on the bond and stating the grounds for
244244 that liability.
245245 (c) If the final judgment establishes the prosecuting
246246 attorney's right to the office, the county that employs the
247247 attorney shall pay the attorney from the general fund of the county
248248 an amount equal to the compensation received by the temporary
249249 appointee.
250250 Sec. 41.379. TRIAL. (a) Prosecuting attorneys may be
251251 removed under this subchapter only following a trial by jury.
252252 (b) The trial for removal of a prosecuting attorney and the
253253 proceedings connected with the trial shall be conducted as much as
254254 possible in accordance with the rules and practice of the court in
255255 other civil cases, in the name of the State of Texas, and on the
256256 relation of the person filing the petition.
257257 (c) Under a proper charge applicable to the facts of the
258258 case, the judge shall instruct the jury to find from the evidence
259259 whether the grounds for removal alleged in the petition are true.
260260 If the petition alleges more than one ground for removal, the jury
261261 shall indicate in the verdict which grounds are sustained by the
262262 evidence and which are not sustained.
263263 (d) Notwithstanding any other law, the attorney general
264264 shall represent the state in a proceeding for removal brought under
265265 Section 41.376. In a proceeding for removal brought under Section
266266 41.377, the state may be represented by the attorney general or by
267267 lawyers retained by the person filing the petition.
268268 (e) Notwithstanding any other law, a prosecuting attorney
269269 may not assert any immunity defense in a removal proceeding brought
270270 under Section 41.376 or 41.377, including sovereign immunity,
271271 governmental immunity, official immunity, prosecutorial immunity,
272272 or qualified immunity, and all such immunity defenses are waived
273273 and abolished in any removal proceeding brought under this
274274 subchapter.
275275 Sec. 41.380. REMOVAL FROM OFFICE. (a) If, after a jury
276276 trial held by the district court, the prosecuting attorney is found
277277 to have violated Section 41.373(a), the court shall immediately
278278 order the prosecuting attorney removed from office. The order of
279279 removal shall take effect immediately upon issuance and may not be
280280 stayed pending appeal.
281281 (b) The governor shall fill the vacancy by appointing a new
282282 prosecuting attorney to finish the term of the removed prosecuting
283283 attorney.
284284 (c) The removed prosecuting attorney shall be restored to
285285 office if:
286286 (1) an appellate court judgment reversing the jury's
287287 findings becomes final by the conclusion of direct appeal; and
288288 (2) the term that the removed prosecuting attorney was
289289 serving at the time of the attorney's removal from office has not
290290 expired.
291291 Sec. 41.381. APPEAL. (a) Either party to a removal action
292292 may appeal the final judgment to the court of appeals in the manner
293293 provided for in other civil cases. If the prosecuting attorney has
294294 not been suspended from office, the attorney is not required to post
295295 an appeal bond but may be required to post a bond for costs.
296296 (b) Notwithstanding any other law, an appeal of a removal
297297 action takes precedence over the ordinary business of the court of
298298 appeals and shall be decided with all convenient dispatch. If the
299299 trial court judgment is not set aside or suspended, the court of
300300 appeals shall issue its mandate in the case within five days after
301301 the date the court renders its judgment.
302302 Sec. 41.382. DISBARMENT. (a) In this section, "chief
303303 disciplinary counsel" has the meaning assigned by Section 81.002.
304304 (b) A prosecuting attorney performs an act that constitutes
305305 professional misconduct and for which the prosecuting attorney's
306306 license to practice law in this state shall be revoked if the
307307 prosecuting attorney violates Section 41.373(a).
308308 (c) On a prosecuting attorney's removal from office under
309309 Section 41.380, the chief disciplinary counsel shall revoke the
310310 prosecuting attorney's license to practice law in this state no
311311 later than the 30th day from the date the order becomes final.
312312 (d) If the chief disciplinary counsel fails to revoke the
313313 prosecuting attorney's license to practice law in this state as
314314 required by this section, then any resident of this state has
315315 standing to bring and may bring an action for injunction or a writ
316316 of mandamus directing the chief disciplinary counsel to comply with
317317 the requirements of this section. Sovereign immunity, governmental
318318 immunity, official immunity, and qualified immunity are waived and
319319 abolished in any action brought under this subsection.
320320 Sec. 41.383. REMOVAL PROCEEDINGS NONEXCLUSIVE. The removal
321321 proceedings established in this subchapter are nonexclusive, and
322322 they supplement and do not supplant the removal proceedings for
323323 prosecuting attorneys established elsewhere in state law,
324324 including the removal proceedings established in Chapter 87, Local
325325 Government Code.
326326 Sec. 41.384. IMMUNITIES. (a) Notwithstanding any other
327327 law, the state and each of its officers and employees shall have
328328 sovereign immunity, its political subdivisions and each of their
329329 officers and employees shall have governmental immunity, and each
330330 officer and employee of this state or a political subdivision shall
331331 have official immunity, as well as sovereign or governmental
332332 immunity, as appropriate, in any action, claim, counterclaim, or
333333 any type of legal or equitable action that challenges the validity
334334 of any provision or application of this subchapter, on
335335 constitutional grounds or otherwise, or that seeks to prevent or
336336 enjoin the state, its political subdivisions, or any officer,
337337 employee, or agent of this state or a political subdivision from
338338 enforcing any provision or application of this subchapter, or from
339339 filing, hearing, adjudicating, or docketing a removal proceeding
340340 brought under Section 41.376 or 41.377, unless that immunity has
341341 been abrogated or preempted by federal law in a manner consistent
342342 with the Constitution of the United States. The sovereign immunity
343343 conferred by this section upon the state and each of its officers
344344 and employees includes the constitutional sovereign immunity
345345 recognized by the United States Supreme Court in Seminole Tribe of
346346 Florida v. Florida
347347 706 (1999), which applies in both state and federal court and which
348348 may not be abrogated by Congress or by any state or federal court
349349 except pursuant to legislation authorized by Section 5 of the
350350 Fourteenth Amendment, by the Bankruptcy Clause of Article I, by the
351351 federal government's eminent domain powers, or by Congress's powers
352352 to raise and support armies and to provide and maintain a navy.
353353 (b) Notwithstanding any other law, the immunities conferred
354354 by Subsection (a) shall apply in every court, both state and
355355 federal, and in every adjudicative proceeding of any type
356356 whatsoever.
357357 (c) Notwithstanding any other law, no provision of state law
358358 may be construed to waive or abrogate an immunity described in
359359 Subsection (a) unless it expressly waives or abrogates immunity
360360 with specific reference to this section.
361361 (d) Notwithstanding any other law, no attorney representing
362362 the state, its political subdivisions, or any officer, employee, or
363363 agent of this state or a political subdivision is authorized or
364364 permitted to waive an immunity described by Subsection (a) or take
365365 any action that would result in a waiver of that immunity, and any
366366 such action or purported waiver shall be regarded as a legal nullity
367367 and an ultra vires act.
368368 (e) Notwithstanding any other law, including Chapter 37,
369369 Civil Practice and Remedies Code, and Sections 22.002, 22.221, and
370370 24.007 through 24.011, Government Code, no court of this state may
371371 award declaratory or injunctive relief, or any type of writ, that
372372 would pronounce any provision or application of this subchapter
373373 invalid or unconstitutional, or that would restrain the state; its
374374 political subdivisions, any officer, employee, or agent of this
375375 state or a political subdivision; or any person from enforcing any
376376 provision or application of this subchapter, or from filing,
377377 hearing, adjudicating, or docketing a removal proceeding brought
378378 under Section 41.376 or 41.377, and no court of this state shall
379379 have jurisdiction to consider any action, claim, or counterclaim
380380 that seeks such relief.
381381 (f) Nothing in this section or subchapter shall be construed
382382 to prevent a litigant from asserting the invalidity or
383383 unconstitutionality of any provision or application of this
384384 subchapter as a defense to any action, claim, or counterclaim
385385 brought against that litigant.
386386 (g) Notwithstanding any other law, any judicial relief
387387 issued by a court of this state that disregards the immunities
388388 conferred by Subsection (a) or the limitations on jurisdiction and
389389 relief imposed by Subsection (e) shall be regarded as a legal
390390 nullity because it was issued by a court without jurisdiction, and
391391 may not be enforced or obeyed by any officer, employee, or agent of
392392 this state or a political subdivision, judicial or otherwise.
393393 (h) Notwithstanding any other law, any writ, injunction, or
394394 declaratory judgment issued by a court of this state that purports
395395 to restrain the state; its political subdivisions; any officer,
396396 employee, or agent of this state or a political subdivision; or any
397397 person from filing, hearing, adjudicating, or docketing a removal
398398 proceeding brought under Section 41.376 or 41.377 shall be regarded
399399 as a legal nullity and a violation of the Due Process Clause of the
400400 Fourteenth Amendment, and may not be enforced or obeyed by any
401401 officer, employee, or agent of this state or a political
402402 subdivision, judicial or otherwise.
403403 SECTION 2. Chapter 614, Government Code, is amended by
404404 adding Subchapter N to read as follows:
405405 SUBCHAPTER N. RETALIATION PROHIBITED FOR CERTAIN COMPLAINTS
406406 Sec. 614.251. DEFINITION. In this subchapter, "law
407407 enforcement agency" means an agency of this state or a political
408408 subdivision of this state that employs peace officers.
409409 Sec. 614.252. PROHIBITION. A law enforcement agency may
410410 not suspend or terminate the employment of, or take other adverse
411411 personnel action against, a peace officer or other employee who in
412412 good faith submits a complaint to the attorney general under
413413 Section 41.376, including a complaint based on the refusal by a
414414 prosecuting attorney to prosecute a criminal offense in connection
415415 with an affidavit made by a peace officer or other employee alleging
416416 that probable cause exists to believe a person committed a criminal
417417 offense.
418418 Sec. 614.253. RELIEF FOR PEACE OFFICER. (a) A peace
419419 officer or other employee whose employment is suspended or
420420 terminated or who is subjected to an adverse personnel action in
421421 violation of Section 614.252 may bring an action for:
422422 (1) injunctive relief;
423423 (2) compensatory damages;
424424 (3) court costs; and
425425 (4) reasonable attorney's fees.
426426 (b) In addition to relief under Subsection (a), a peace
427427 officer or employee whose employment is suspended or terminated in
428428 violation of Section 614.252 is entitled to:
429429 (1) reinstatement to the officer's or employee's
430430 former position or an equivalent position;
431431 (2) compensation for wages lost during the period of
432432 suspension or termination; and
433433 (3) reinstatement of fringe benefits and seniority
434434 rights lost because of the suspension or termination.
435435 Sec. 614.254. WAIVER OF IMMUNITY. Sovereign and
436436 governmental immunity to suit and from liability is waived to the
437437 extent of liability created by this subchapter.
438438 Sec. 614.255. NOTICE TO PEACE OFFICERS. (a) A law
439439 enforcement agency shall inform its employees of their rights under
440440 this subchapter by posting a sign in a prominent and visible
441441 location in the agency.
442442 (b) The attorney general shall prescribe the design and
443443 content of the sign required by this section.
444444 SECTION 3. Subchapter A, Chapter 87, Local Government Code,
445445 is amended by adding Section 87.002 to read as follows:
446446 Sec. 87.002. REMOVAL PROCEEDINGS NONEXCLUSIVE. The removal
447447 proceedings established in this chapter are nonexclusive, and they
448448 supplement and do not supplant the removal proceedings established
449449 elsewhere in state law, including the removal proceedings for
450450 prosecuting attorneys established in Chapter 41, Government Code.
451451 SECTION 4. This Act takes effect immediately if it receives
452452 a vote of two-thirds of all the members elected to each house, as
453453 provided by Section 39, Article III, Texas Constitution. If this
454454 Act does not receive the vote necessary for immediate effect, this
455455 Act takes effect September 1, 2023.