LOCAL GOVERNMENT CODE
CHAPTER 87. REMOVAL OF COUNTY OFFICERS FROM OFFICE; FILLING OF
VACANCIES
SUBCHAPTER A. GENERAL PROVISIONS
§ 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, § 1, eff. Sept. 1, 1987.
SUBCHAPTER B. REMOVAL BY PETITION AND TRIAL
§ 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, § 1, eff. Sept. 1, 1987.
§ 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) an inspector of hides and animals;
(14) a justice of the peace; and
(15) 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, § 1, eff. Sept. 1, 1987.
§ 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, § 1, eff. Sept. 1, 1987.
§ 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, § 1, eff. Sept. 1, 1987.
§ 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, § 1, eff. Sept. 1, 1987.
§ 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, § 1, eff. Sept. 1, 1987. Amended
by Acts 1991, 72nd Leg., ch. 563, § 1, eff. Sept. 1, 1991.
§ 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, § 1, eff. Sept. 1, 1987.
§ 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, § 1, eff. Sept. 1, 1987. Amended
by Acts 1991, 72nd Leg., ch. 563, § 2, eff. Sept. 1, 1991.
§ 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, § 1, eff. Sept. 1, 1987.
SUBCHAPTER C. REMOVAL BY CRIMINAL CONVICTION
§ 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, § 1, eff. Sept. 1, 1987.
§ 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 subchapter.
Acts 1987, 70th Leg., ch. 149, § 1, eff. Sept. 1, 1987.
SUBCHAPTER D. FILLING OF VACANCIES
§ 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) inspector of hides and animals;
(9) county tax assessor-collector;
(10) justice of the peace; or
(11) 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, § 1, eff. Sept. 1, 1987.
§ 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, § 1, eff. Sept. 1, 1987.
§ 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, § 1, eff. June 11, 1991.
