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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

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.

Editorial Comment: A Licensed Physician could be called to the stand to justify a prescription for a county official to consume alcohol, and could be reported to the State Board of Medical Examiners if the Prescription was found to be unnecessary!!!

§ 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.

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.

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.

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.

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

in 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.

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

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.

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