CHAPTER 87. REMOVAL OF COUNTY OFFICERS FROM OFFICE; FILLING OF VACANCIES - Texas Statutes

LOCAL GOVERNMENT CODE

TITLE 3. ORGANIZATION OF COUNTY GOVERNMENT

SUBTITLE B. COMMISSIONERS COURT AND COUNTY OFFICERS

CHAPTER 87. REMOVAL OF COUNTY OFFICERS FROM OFFICE; FILLING OF

VACANCIES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 87.001. NO REMOVAL FOR PRIOR ACTION. An officer may not be

removed under this chapter for an act the officer committed

before election to office.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

SUBCHAPTER B. REMOVAL BY PETITION AND TRIAL

Sec. 87.011. DEFINITIONS. In this subchapter:

(1) "District attorney" includes a criminal district attorney.

(2) "Incompetency" means:

(A) gross ignorance of official duties;

(B) gross carelessness in the discharge of those duties; or

(C) unfitness or inability to promptly and properly discharge

official duties because of a serious physical or mental defect

that did not exist at the time of the officer's election.

(3) "Official misconduct" means intentional, unlawful behavior

relating to official duties by an officer entrusted with the

administration of justice or the execution of the law. The term

includes an intentional or corrupt failure, refusal, or neglect

of an officer to perform a duty imposed on the officer by law.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Sec. 87.012. OFFICERS SUBJECT TO REMOVAL. The district judge

may, under this subchapter, remove from office:

(1) a district attorney;

(2) a county attorney;

(3) a county judge;

(4) a county commissioner;

(5) a county clerk;

(6) a district clerk;

(7) a district and county clerk;

(8) a county treasurer;

(9) a sheriff;

(10) a county surveyor;

(11) a county tax assessor-collector;

(12) a constable;

(13) a justice of the peace; and

(14) a county officer, not otherwise named by this section,

whose office is created under the constitution or other law of

this state.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

37, Sec. 4, eff. May 19, 2009.

Sec. 87.013. GENERAL GROUNDS FOR REMOVAL. (a) An officer may

be removed for:

(1) incompetency;

(2) official misconduct; or

(3) intoxication on or off duty caused by drinking an alcoholic

beverage.

(b) Intoxication is not a ground for removal if it appears at

the trial that the intoxication was caused by drinking an

alcoholic beverage on the direction and prescription of a

licensed physician practicing in this state.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Sec. 87.014. GROUNDS: FAILURE TO GIVE BOND. A county officer

who is required by law to give an official bond may be removed

under this subchapter if the officer:

(1) fails to execute the bond within the time prescribed by law;

or

(2) does not give a new bond, or an additional bond or security,

if required by law to do so.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Sec. 87.015. PETITION FOR REMOVAL. (a) A proceeding for the

removal of an officer is begun by filing a written petition for

removal in a district court of the county in which the officer

resides. However, a proceeding for the removal of a district

attorney is begun by filing a written petition in a district

court of:

(1) the county in which the attorney resides; or

(2) the county where the alleged cause of removal occurred, if

that county is in the attorney's judicial district.

(b) Any resident of this state who has lived for at least six

months in the county in which the petition is to be filed and who

is not currently under indictment in the county may file the

petition. At least one of the parties who files the petition must

swear to it at or before the filing.

(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 officer in plain and

intelligible language and must cite the time and place of the

occurrence of each act alleged as a ground for removal with as

much certainty as the nature of the case permits.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Sec. 87.016. CITATION OF OFFICER. (a) After a petition for

removal is filed, the person filing the petition shall apply to

the district judge in writing for an order requiring a citation

and a certified copy of the petition to be served on the officer.

(b) If the application for the order is made during the term of

the court, action may not be taken on the petition until the

order is granted and entered in the minutes of the court. If the

application is made to the judge during the vacation of the

court, the judge shall indicate on the petition the action taken

and shall have the action entered in the minutes of the court at

the next term.

(c) If the judge refuses to issue the order for citation, the

petition shall be dismissed at the cost of the person filing the

petition. The person may not take an appeal or writ of error from

the judge's decision. If the judge grants the order for citation,

the clerk shall issue the citation with a certified copy of the

petition. The judge shall require the person filing the petition

to post security for costs in the manner provided for other

cases.

(d) The citation shall order the officer to appear and answer

the petition on a date, fixed by the judge, after the fifth day

after the date the citation is served. The time is computed as it

is in other suits.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Amended by Acts 1991, 72nd Leg., ch. 563, Sec. 1, eff. Sept. 1,

1991.

Sec. 87.017. SUSPENSION PENDING TRIAL; TEMPORARY APPOINTEE. (a)

After the issuance of the order requiring citation of the

officer, the district judge may temporarily suspend the officer

and may appoint another person to perform the duties of the

office.

(b) The judge may not suspend the officer 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 officer 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

officer 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 officer intends to hold them

liable on the bond and stating the grounds for that liability.

(c) If the final judgment establishes the officer's right to the

office, the county shall pay the officer from the general fund of

the county an amount equal to the compensation received by the

temporary appointee.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Sec. 87.018. TRIAL. (a) Officers may be removed only following

a trial by jury.

(b) The trial for removal of an officer 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) In a removal case, the judge may not submit special issues

to the jury. 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) The county attorney shall represent the state in a

proceeding for the removal of an officer except as otherwise

provided by Subsection (e) or (f).

(e) In a proceeding to remove a county attorney from office, the

district attorney shall represent the state. If the county does

not have a district attorney, the county attorney from an

adjoining county, as selected by the commissioners court of the

county in which the proceeding is pending, shall represent the

state.

(f) In a proceeding to remove the county attorney or district

attorney from office, the county attorney from an adjoining

county, as selected by the commissioners court of the county in

which the proceeding is pending, shall represent the state if the

attorney who would otherwise represent the state under this

section is also the subject of a pending removal proceeding.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Amended by Acts 1991, 72nd Leg., ch. 563, Sec. 2, eff. Sept. 1,

1991.

Sec. 87.019. APPEAL. (a) Either party to a removal action may

appeal the final judgment to the court of appeals in the manner

provided for other civil cases. If the officer has not been

suspended from office, the officer is not required to post an

appeal bond but may be required to post a bond for costs.

(b) 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.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

SUBCHAPTER C. REMOVAL BY CRIMINAL CONVICTION

Sec. 87.031. IMMEDIATE REMOVAL. (a) The conviction of a county

officer by a petit jury for any felony or for a misdemeanor

involving official misconduct operates as an immediate removal

from office of that officer.

(b) The court rendering judgment in such a case shall include an

order removing the officer in the judgment.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Sec. 87.032. APPEAL; SUSPENSION. If the officer appeals the

judgment, the appeal supersedes the order of removal unless the

court that renders the judgment finds that it is in the public

interest to suspend the officer pending the appeal. If the court

finds that the public interest requires suspension, the court

shall suspend the officer as provided by this chapter.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

87, Sec. 15.001, eff. September 1, 2009.

SUBCHAPTER D. FILLING OF VACANCIES

Sec. 87.041. VACANCIES FILLED BY APPOINTMENT OF COMMISSIONERS

COURT. (a) The commissioners court of a county may fill a

vacancy in the office of:

(1) county judge;

(2) county clerk;

(3) district and county clerk;

(4) sheriff;

(5) county attorney;

(6) county treasurer;

(7) county surveyor;

(8) county tax assessor-collector;

(9) justice of the peace; or

(10) constable.

(b) The commissioners court shall fill a vacancy by a majority

vote of the members of the court who are present and voting.

(c) The person appointed by the commissioners court to fill the

vacancy shall hold office until the next general election.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

37, Sec. 5, eff. May 19, 2009.

Sec. 87.042. COUNTY COMMISSIONER VACANCY. If a vacancy occurs

in the office of county commissioner, the county judge shall

appoint a suitable resident of the precinct in which the vacancy

exists to fill the vacancy until the next general election.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Sec. 87.043. TEMPORARY ABSENCE IN OFFICE OF COUNTY JUDGE IN

CERTAIN COUNTIES. (a) In a county with a population of less

than 150,000, a temporary absence occurs in the office of county

judge if:

(1) the county judge is located outside the county for 30

consecutive full days as a direct result of:

(A) being a reservist or a member of the national guard who was

ordered to duty under the authority of federal law;

(B) enlisting in the armed forces or the national guard as a

volunteer; or

(C) being inducted into the armed forces under federal draft

laws; and

(2) the commissioners court determines in writing that the

absence prevents the county judge from satisfactorily discharging

the duties of the office.

(b) If a temporary absence exists in the office of county judge,

before the 30th day after the date the absence begins, the absent

county judge may appoint a resident of the county to fill the

office until the next term of that office or until the temporary

absence ends, whichever event occurs first. If the absent county

judge does not appoint a resident of the county within the 30-day

period, the commissioners court shall appoint a resident of the

county to fill the office until the next term of that office or

until the temporary absence ends, whichever event occurs first.

Added by Acts 1991, 72nd Leg., ch. 447, Sec. 1, eff. June 11,

1991.