A.R.S. tit. 38 ch. 2 — Arizona Revised Statutes Title 38 Chapter 2 — Qualification And Tenure

38-201. General qualifications A. Every officer shall be not less than eighteen years of age, a citizen of the United States and a resident of this state. B. No person is eligible to any office, employment or service in any public institution in the state, or in any of the several counties thereof, of any kind or character, whether by election, appointment or contract, unless he is a citizen of the United States, but the provisions of this subsection shall not apply to the employment of any teacher, instructor or professor authorized to teach in the United States under the teacher exchange program as provided by federal statutes or the employment of university or college faculty members. C. A person who is unable to speak, write and read the English language is not eligible to hold a state, county, city, town or precinct office in the state, whether elective or appointive, and no certificate of election or commission shall issue to a person so disqualified. D. Except as provided in subsection E, a person is not eligible for employment by or service for the state or a political subdivision of the state, including all boards and commissions of the state or political subdivision, all multimember governing bodies of departments, agencies, institutions and instrumentalities of the state or political subdivisions unless the person has registered with the selective service system if required by the federal military selective service act (62 Stat. 604; 50 United States Code App. section 453). E. A person may not be denied a right, privilege or benefit by reason of subsection D if either of the following applies: 1. The requirement for the person to so register has terminated or become inapplicable to the person. 2. The person shows by a preponderance of the evidence that the failure of the person to register with the selective service system was not a knowing and willful failure to register. 38-211. Nominations by governor; consent of senate; appointment A. When it is provided by law that a state officer shall be appointed pursuant to this section, the governor shall nominate and with the consent of the senate appoint such officer as prescribed in this section. B. If the term of any state office that is appointive pursuant to this section expires, begins or becomes vacant during a regular legislative session, the governor shall during such session nominate a person who meets the requirements of law for such office and shall promptly transmit the nomination to the president of the senate. If the incumbent is capable of continuing to serve until his successor has qualified, a nominee to that position shall not assume and discharge the duties of the office, pending senate confirmation. If the incumbent is unable to continue to discharge the duties of office, the nominee shall assume and discharge the duties of the office pending senate confirmation. If the senate consents to the nomination, the governor shall then appoint the nominee to serve for the term or, in the case of a vacancy, for the unexpired term in which the vacancy occurred. If the senate rejects the nomination the nominee shall not be appointed and the governor shall promptly nominate another person who meets the requirements for such office. If the senate takes no formal action on the nomination during such legislative session, or if a nomination other than one that is required to be sent to the senate during the first week of the legislative session is not received during the session, the governor shall after the close of such legislative session appoint the nominee to serve, and the nominee shall discharge the duties of office, subject to confirmation during the next legislative session. C. If the term of any state office that is appointive pursuant to this section expires, begins or becomes vacant during a time in which the legislature is not in regular session, the governor shall nominate a person who meets the requirements of law for such office and shall transmit the nomination to the president of the senate during the first week of the next regular session. The nominee shall assume and discharge the duties of the office until rejection of the nomination or inaction of the senate. D. Every officer who is subject to confirmation as provided in this section and whose term is not fixed by law shall hold office at the pleasure of the appointing power. E. In no event shall a nominee serve longer than one year after nomination without senate consent. F. Nominations made by the governor shall be in writing, designating the residence of the nominee and the office for which nominated. G. When the senate consents to a nomination, its secretary shall deliver a copy of the resolution of consent, certified by the president of the senate, to the secretary of state, who shall notify the governor. When the senate rejects a nomination, its secretary shall inform the governor promptly. H. Before nomination or appointment by the governor pursuant to this section, the prospective nominee shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation. 38-212. Limitation on appointments Where the statutes limit the number of members of a board or commission who can be members of the same political party, the governor shall not appoint as a member of any such board or commission any person who does not have a continuous recorded registration pursuant to title 16, chapter 1, with the same political party or as an independent for at least two years immediately preceding appointment. 38-221. Commission of office A. The governor shall commission in the name and by the authority of the state: 1. Officers elected by the electors of the state whose commissions or certificates of election are not otherwise provided for. 2. Officers elected by the legislature. 3. Officers of the militia. 4. Officers appointed by the governor, or by the governor with the advice and consent of the senate. B. The commission shall be signed by the governor and attested by the secretary of state under the great seal of the state. C. The commissions of all officers other than those provided for in subsection A of this section, where no special provision is made by law, shall be signed by the presiding officer of the body or person making the appointment. 38-231. Officers and employees required to take loyalty oath; form; classification; definition A. In order to ensure the statewide application of this section on a uniform basis, each board, commission, agency and independent office of this state, and of any of its political subdivisions, and of any county, city, town, municipal corporation, school district and public educational institution, shall completely reproduce this section so that the form of written oath or affirmation required in this section contains all of the provisions of this section for use by all officers and employees of all boards, commissions, agencies and independent offices. B. Any officer or employee who fails to take and subscribe to the oath or affirmation provided by this section within the time limits prescribed by this section is not entitled to any compensation until the officer or employee does so take and subscribe to the form of oath or affirmation prescribed by this section. C. Any officer or employee having taken the form of oath or affirmation prescribed by this section, and knowingly at the time of subscribing to the oath or affirmation, or at any time thereafter during the officer’s or employee's term of office or employment, does commit or aid in the commission of any act to overthrow by force, violence or terrorism as defined in section 13-2301 the government of this state or of any of its political subdivisions, or advocates the overthrow by force, violence or terrorism as defined in section 13-2301 of the government of this state or of any of its political subdivisions, is guilty of a class 4 felony and, on conviction under this section, the officer or employee is deemed discharged from the office or employment and is not entitled to any additional compensation or any other emoluments or benefits which may have been incident or appurtenant to the office or employment. D. Any of the persons referred to in article XVIII, section 10, Constitution of Arizona, as amended, relating to the employment of aliens, are exempted from any compliance with this section. E. In addition to any other form of oath or affirmation specifically provided by law for an officer or employee, before any officer or employee enters upon the duties of the office or employment, the officer or employee shall take and subscribe the following oath or affirmation: State of Arizona, County of ______________ I, _____________________ (type or print name) do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Arizona, that I will bear true faith and allegiance to the same and defend them against all enemies, foreign and domestic, and that I will faithfully and impartially discharge the duties of the office of ______________________ (name of office) ________________________ according to the best of my ability, so help me God (or so I do affirm). ______________________________________ (signature of officer or employee) F. For the purposes of this section, "officer or employee" means any person elected, appointed or employed, either on a part-time or full-time basis, by this state or any of its political subdivisions or any county, city, town, municipal corporation, school district, public educational institution or any board, commission or agency of any county, city, town, municipal corporation, school district or public educational institution. 38-232. Time of oath When a different time is not prescribed, the oath of office shall be taken and subscribed as follows: 1. If appointed, at or before commencement of the term of office. 2. If elected, at any time after receiving the officer's certificate of election, and at or before commencement of the term of office. 38-233. Filing oaths of record A. The official oaths of state elective officers shall be filed of record in the office of the secretary of state. The official oaths of all other state officers and employees shall be filed of record in the office of the employing state board, commission or agency. B. The official oaths of elective county and elective precinct officers shall be filed of record in the office of the county recorder, except the oath of the recorder, which shall be filed with the clerk of the board of supervisors. The official oaths of notaries public shall be endorsed upon their bond and filed with the secretary of state. The official oaths of all other county and precinct officers and employees shall be filed of record in the office of the employing county or precinct board, commission or agency. C. The official oaths of all city, town or municipal corporation officers or employees shall be filed of record in the respective office of the employing board, commission or agency of the cities, towns and municipal corporations. D. The official oaths of all officers and employees of all school districts shall be filed of record in the school district office. E. The official oaths of all officers and employees of each public educational institution except school districts shall be filed of record in the respective offices of the public educational institutions. F. The official oath or affirmation required to be filed of record shall be maintained as an official record throughout the person's term, appointment or employment plus a period of time to be determined pursuant to sections 41-151.15 and 41-151.19. 38-234. Usurpation of office; classification A person who knowingly intrudes himself into a public office to which he has not been elected or appointed, or a person who, having been a public officer, knowingly exercises the functions of his office after his term has expired and a successor has been elected or appointed and has qualified, is guilty of a class 2 misdemeanor. 38-251. State officers and employees blanket bond; amount; approval A. The governor shall obtain and deliver to the secretary of state a blanket bond, payable to the state, in the principal amount of one hundred thousand dollars for each state officer and employee conditioned on the faithful performance of his duties. B. All state officers and employees are bonded pursuant to this section unless otherwise provided by law. C. The attorney general shall determine the form and sufficiency of the blanket bond. 38-253. Approval of bond; filing The approval of every official bond shall be endorsed thereon, signed by the officer approving the bond, and filed within the time prescribed for filing the oath in the office in which the official oath of the office is filed, except that the bonds of deputies or employees shall be filed with the officer appointing the deputy or employee. No fee shall be charged for the filing or recording thereof. 38-254. Bond premiums as public charge When a public officer, excepting a notary public, his deputy, assistant or employee is required by law or by a board or commission of the respective agencies of the state to give bond for the performance of the duties of his office and the surety of the bond is a corporation, the premiums for the writing of the bonds shall be a public charge of such officer and shall be paid from the expense fund of the agency, or if no expense fund exists, then by the state or county out of the general fund. 38-255. Recording of bond; copies Every officer with whom bonds are filed shall record them in a book kept by him for that purpose, preserve the bond and give certified copies thereof under seal to any person upon demand and payment of the fee for a copy and certificate. 38-256. Form of official bonds All official bonds shall be joint and several in form and made payable to the state of Arizona. The condition shall be that the principal will well, truly and faithfully perform all official duties required of him by law. The bond shall be signed by the principal and at least two sureties or a qualified surety company, and shall comply and be subject to the law governing the bond of such officer. 38-257. Justification of sureties; officers ineligible as sureties A. The officer whose duty it is to approve the bond shall not accept or approve it unless the sureties severally justify as required by law. B. A member of the board of supervisors shall not be accepted as surety upon the official bond of any county or precinct officer of the county, nor shall the sheriff, treasurer, recorder, assessor or county attorney of the same county become sureties upon official bonds for each other. C. Officers shall not approve any bond when the financial standing and ability of the sureties thereon are unknown to them, or when any of the sureties thereon are assessed for the current year for taxes upon property the aggregate value of which is less than the amount for which the surety becomes liable upon the bond, unless either: 1. The surety is first examined under oath before the officer authorized to approve the bond concerning the surety's ability to respond in damages. 2. The approving officer, upon examination and after diligent inquiry into the assets and liabilities of the proposed surety, is satisfied that the proposed surety is good and possesses ample means to respond in double the amount for which the surety proposes to become liable upon the bond. 38-258. Limitation of liability by sureties When the penal amount of any bond required to be given amounts to more than one thousand dollars, the sureties may become severally liable for portions of not less than five hundred dollars thereof, making in the aggregate at least two sureties for the whole penal sum. If any such bond becomes forfeited, action may be brought thereon against all or any number of the obligors and judgment entered against them, either jointly or severally as they are liable. The judgment shall not be entered against a surety severally bound for a greater amount than that for which he is specifically liable by the terms of the bond. Each surety is liable to contribution of his cosureties in proportion to the amount for which he is liable. 38-259. Extent of liability Every official bond executed by an officer pursuant to law is in force and obligatory upon the principal and sureties therein for any and all breaches of the conditions thereof committed during the time the officer continues to discharge any of the duties of or hold the office, whether the breaches are committed or suffered by the principal officer, his deputy or clerk. When, except in criminal prosecutions, a penalty, forfeiture or liability is imposed on any officer for nonperformance or malperformance of official duty, the liability therefor attaches to the official bond of the officer, and to the principal and sureties thereon. Every such bond is in force and obligatory upon the principal and sureties therein for the faithful discharge of all duties which may be required of the officer by any law enacted subsequently to the execution of the bond, and such condition shall be expressed therein. 38-260. Beneficiaries of bond Every official bond executed by any officer pursuant to law, is in force and obligatory upon the principal and sureties therein to and for the state and to and for the use and benefit of all persons who may be injured or aggrieved by the wrongful act or default of the officer in his official capacity. Any person so injured or aggrieved may bring an action on the bond in his own name without an assignment thereof. 38-261. Successive recoveries No bond is void on the first recovery of a judgment thereon, but action may afterwards be brought on the bond from time to time by the state, or by any person injured, and judgment recovered thereon until the whole penalty of the bond is exhausted. 38-262. Defects in form, approval or filing of bond When an official bond does not contain the substantial matter or conditions required by law, or when there are any defects in the approval or filing thereof, such defects shall not discharge the officer and his sureties, and they are bound to the state, or party injured, according to the conditions and obligations required by law to be inserted therein. The state or the injured party may in an action upon the bond, suggest the defect in the bond, approval or filing, and recover the proper and equitable demand or damages from the officer and the persons who intended to become and were included as sureties in the bond. 38-263. Additional bond; failure to file A. When a surety on any official bond moves from the state, becomes insolvent or insufficient, or the penalty on the bond becomes insufficient, the person approving the bond shall, of his own motion, or on the showing of any person, supported by an affidavit, at once notify any such officer to appear before him at a time stated, not less than three nor more than ten days after the service of the notice, and show cause why he should not execute a new or additional bond with good and sufficient sureties. B. After hearing thereon, either party aggrieved by the decision may appeal to the judge of the superior court of the county in which the bond is filed, and in the absence of the judge, to the court commissioner of the county, who shall proceed to hear the matter summarily and decide the case, and such decision shall be final. If the officer fails to appear, the matter may be heard in his absence, and if any officer, when required to do so, fails to file a new or additional bond, his office shall be deemed vacant. 38-264. Additional bond; terms The new or additional bond shall be in the penalty directed by the person approving the original bond, in all respects similar to, and approved by and filed with the same officer as the original bond. When so filed it shall be of like force from the date of its execution and subject the officer and his sureties to the same liabilities as the original bond. 38-265. Liability on original and additional bonds The original bond is not discharged or affected by the giving of new or additional bond, but remains of like force and obligation as if the new or additional bond had not been given. The officer and his sureties are liable upon either or both bonds, and an action may be brought upon either bond, or separate actions on both bonds, and the same cause of action may be alleged and judgment recovered in each action. 38-266. Judgment on original and additional bonds; contribution of sureties A. If separate judgments are recovered on the bonds for the same cause of action, the plaintiff is entitled to have execution issued on both judgments, but he shall only collect by execution or otherwise the amount actually adjudged to him on the same causes of action, together with the costs of both actions. B. When the sureties on either bond have been compelled to pay any amount of money on account of the principal obligor therein, they are entitled to recover of the sureties on the remaining bond, a distributive part of the amount thus paid, in the proportion which the penalties of the bonds bear one to the other, and to the amount thus paid, respectively. 38-267. Discharge of sureties A. When any sureties on the official bond of an officer wish to be discharged from their liability, they and such officer may procure such discharge if the officer will execute a new bond to be approved and filed as the original bond. Upon the filing and approval of the new bond, the first sureties are exonerated from all further liability, but their bond remains in full force as to all liabilities incurred previous to the approval of the new bond. B. The liability of the sureties in each new bond is in all respects the same and may be enforced in like manner as the liability of the sureties in the original bond. 38-268. Bonds of persons appointed to fill vacancies Any person appointed to fill a vacancy, before entering upon the duties of the office, shall give a bond as required of the officer originally elected or appointed. 38-269. Withdrawal of surety; effect on remaining sureties A. Any surety on the official bond of any officer may be relieved from liabilities thereon afterwards accruing by complying with the following provisions: 1. The surety shall file with the person authorized by law to approve the official bond, a sworn statement in writing setting forth his desire to be relieved from liability thereon afterwards arising, and the reasons therefor. 2. Serve notice of the filing of the statement on the officer named in the official bond, and make return or affidavit of service thereon and file it with the approving officer. B. Within ten days after the service of the notice, the person authorized to approve the bond shall make an order declaring such office vacant, and releasing the surety from all liability thereafter to arise on the official bond, and the office thereafter is in law vacant, and shall be immediately filled by election or appointment, as in other cases of vacancy, unless the officer has before that time given good and ample surety for the discharge of all his official duties as originally required. C. The release, discharge, voluntary withdrawal or incompetency of the surety on any official bond, does not affect the bond as to the remaining sureties thereon, or alter or change their liability. 38-270. Supplemental bond upon withdrawal of surety; exception A. When a surety on any official bond gives notice of intention to withdraw therefrom, or is removed or becomes insolvent or becomes otherwise incompetent, the principal shall, within ten days after the notice or disqualification, execute and file, subject to the same conditions as the original, a supplemental bond, in which shall be recited the names of the remaining original sureties, and the name of the new surety, and the amount for which he becomes bound, who is substituted in lieu of the surety released or disqualified. B. When the original bond is given for an amount in excess of the amount required by law, if the withdrawal or removal of any surety does not reduce the bond below the amount required by law to be secured by sureties, then no supplemental or additional bond is necessary. Until the filing and approval of the supplemental bond, the sureties withdrawing or removed on the formed bond are liable for all the acts of their principals. 38-271. Effect of withdrawal on liability of surety No surety shall be released from liability for acts, omissions or causes existing or which arose before the making of the order discharging him, but legal proceedings may be had therefor in all respects as though no such order had been made. 38-272. Affidavit of plaintiff in action to recover on bond that defendant owns real property; notice to recorder After an action has been commenced to recover upon any bond required to be given by a public officer, the plaintiff may file an affidavit stating either positively or on information and belief that the bond was executed by the defendant, and that the defendant has real property, designating the county or counties in which it is located. The clerk receiving the affidavit shall certify to the recorder of the county in which the real estate is located the names of the parties to the action, the name of the court in which the action is pending and the amount claimed in the complaint, with the date of the commencement of the action. 38-273. Recording notice of ownership of real property; lien of judgment Upon receiving the certificate the county recorder shall endorse, file and record it in the same manner as notices of the pendency of an action affecting real estate. Any judgment recovered in such action is a lien upon all real estate belonging to the defendant and located in any county in which the certificate is filed for the amount that the owner thereof is or may be liable upon the judgment, from the time of filing the certificate. 38-291. Vacancy defined An office shall be deemed vacant from and after the occurrence of any of the following events before the expiration of a term of office: 1. Death of the person holding the office. 2. Insanity of the person holding the office, when judicially determined. 3. Resignation of the person holding the office and the lawful acceptance of the resignation. 4. Removal from office of the person holding the office, including the removal of a board or commission member by the appointing power before the expiration of the person's term of office. 5. If the office is elective, the person holding the office ceasing to be a resident of the state, or, if the office is local, or from a legislative or congressional district, the person holding the office ceasing to be a resident of the district, county, city, town or precinct for which the person was elected, or within which the duties of the person's office are required to be discharged. 6. Absence from the state by the person holding the office, without permission of the legislature, beyond the period of three consecutive months. 7. The person holding the office ceasing to discharge the duties of office for the period of three consecutive months. 8. Conviction of the person holding the office of a felony or an offense involving a violation of the person's official duties. 9. Failure of the person elected or appointed to the office to file the person's official oath within the time prescribed by law. 10. A decision of a competent tribunal declaring void the election or appointment of the person elected or appointed to the office. 11. Failure of a person to be elected or appointed to the office. 12. A violation of section 38-296 by the person holding the office. 38-292. Notice of vacancy in office When an officer is removed, declared insane or convicted of a felony or an offense involving a violation of his official duties, or when his election or appointment is declared void, the body, judge or officer before whom the proceedings were had shall give notice thereof to the officer empowered to fill the vacancy. 38-293. Effect of conviction of officer In addition to the penalty fixed by express terms for every neglect or violation of official duty on the part of public officers of the state, a county, city, town, district or township where it is not so expressly provided, such officers may, in the discretion of the court, be removed from office. 38-294. Resignations Resignations shall be in writing and made as follows: 1. By members of the legislature, to the presiding officer of the body of which the legislator is a member, who shall immediately transmit the resignation to the governor. 2. By state officers and officers of the militia, to the governor. 3. By other officers commissioned by the governor, to the governor. 4. By county officers, to the chairman of the board of supervisors of their county. 5. By the chairman of the board of supervisors, to the county recorder of the county. 6. In cases not otherwise provided for, by filing the resignation in the office of the secretary of state. 7. By appointive officers, to the body or officer that appointed them, unless otherwise provided. 38-295. Term of office; discharge of official duties after expiration of term; appointment to fill unexpired term A. Unless otherwise specified by law, every officer holds office at the pleasure of the appointing power. B. Every officer shall continue to discharge the duties of the office, although the term has expired, until a successor has qualified. The discharge of the duties of office for appointments requiring senate confirmation shall be governed by section 38-211. C. Vacancies occurring in an office, or in the membership of a board or commission, shall be filled only for the unexpired term of the officer or member. 38-296. Limitation on filing for election by incumbent of elective office A. Except during the final year of the term being served, no incumbent of a salaried elective office, whether holding by election or appointment, may offer himself for nomination or election to any salaried local, state or federal office. B. An incumbent of a salaried elected office shall be deemed to have offered himself for nomination or election to a salaried local, state or federal office on the filing of a nomination paper pursuant to section 16-311, subsection A. An incumbent of a salaried elected office is not deemed to have offered himself for nomination or election to an office by making a formal declaration of candidacy for the office. C. The resignation of the incumbent elective officer duly filed in writing with the officer, board or commission having jurisdiction of the office, if not accepted within ten days, shall be deemed to have become effective as of the date of filing. D. This section shall not be construed to prohibit a person whose resignation from office has become effective from qualifying as a candidate for another office during the unexpired portion of the term affected by the resignation, nor shall it apply to any incumbent elective officer who seeks reelection to the same office or to any other public office during the final year of the term to which the person has been so elected. E. A person violating any provision of this section is guilty of misfeasance in office, and the office held by such person shall be declared vacant. 38-296.01. Limitation on running for multiple offices A. A person is not eligible to be a candidate for nomination or election to more than one public office if the elections for those offices are held on the same day and if the person would be prohibited from serving in the offices simultaneously. B. A person is not eligible to be a candidate for nomination or election to more than one federal office simultaneously. This ineligibility does not apply to candidates for nomination or election to the offices of president and vice president. Candidates for nomination or election to the offices of president or vice president may be candidates for nomination or election to one additional federal office simultaneously. C. A person is not eligible to be a candidate for nomination or election to and is not eligible to serve simultaneously in more than one statewide office. D. A person is not eligible to be a candidate for nomination or election to and is not eligible to serve simultaneously in more than one legislative office. E. A person is not eligible to be a candidate for nomination or election to and is not eligible to serve simultaneously in both a legislative office and a statewide office. F. A person is not eligible to be a candidate for nomination or election to and is not eligible to serve simultaneously on more than one school district governing board, except that a member of a governing board may be a candidate for nomination or election for any other governing board if the member is serving in the last year of a term of office. 38-297. Temporary vacancy resulting from military service; appointive officers and employees Notwithstanding section 38-361, when a vacancy exists through the induction or order of an appointive officer or employee described in section 38-298 into the armed forces of the United States, the appointing or employing authority shall inform any person appointed to fill the vacancy that the tenure, apart from other considerations, is contingent upon restoration of the former officer or employee as provided in section 38-298. 38-298. Restoration to position following military service An appointive officer or employee of the state or of a political subdivision thereof, including an employee of the educational system, having been inducted or ordered into active service in the armed forces of the United States after August 1, 1939, shall, upon completion of his service, be restored to the position held by him at the time of induction or of reporting for service, or to a position having similar or other duties which he is qualified to discharge, and of like status and pay, if such officer or employee: 1. Possesses a certificate of satisfactory training and service or honorable discharge issued by the proper military or naval authority. 2. Is still qualified to perform the duties of the position. 3. Applies for restoration within sixty days after separation from the armed forces. 4. Has either served in the armed forces during time of war or was called to service because of his status as an active or inactive member of the reserve. 38-299. Effect of expiration of term prior to separation from military service An appointive officer included within the provisions of section 38-298 whose term of office is prescribed by law is not entitled to the protection of sections 38-297 and 38-298 if his term of office expires on or before the date he is relieved from military or naval service. If such officer is so relieved prior to expiration of his term, restoration to his office pursuant to section 38-298 shall be for the unexpired portion of the term. 38-300. Temporary vacancy resulting from military service; elective office Notwithstanding section 38-291, paragraph 7, if a person serving in an elective office of this state other than the governor, or a political subdivision of this state receives orders for active military duty and the period of active duty is projected to continue for at least three months but less than the remainder of the officer's term of office, the office may be temporarily vacated. A temporary replacement may be appointed in the same manner as prescribed by law for a permanent replacement. The temporary appointee shall serve until the officer returns from active military duty or until the expiration of the officer's term of office, whichever occurs first. 38-311. Officers subject to impeachment The governor, every state and judicial officer, except justices of courts not of record, shall be liable to impeachment for high crimes, misdemeanors or malfeasance in office. 38-312. Articles of impeachment Impeachment shall be instituted in the house of representatives by resolution, and shall be conducted by managers elected by the house of representatives, who shall prepare articles of impeachment, present them at the bar of the senate and prosecute them. The hearing shall be heard before the senate sitting as a court of impeachment. 38-313. Impeachment hearing; service on accused A. The senate shall assign a day for hearing the impeachment, and inform the house of representatives thereof. B. The president of the senate shall cause a copy of the articles of impeachment, with a notice to appear and answer them at the time and place appointed, to be served on the accused not less than ten days before the day fixed for the hearing. The service shall be made by the sergeant-at-arms of the senate upon the accused personally, or, if he cannot upon diligent inquiry be found within the state, the senate, upon proof of such fact, may order publication of the notice to be made in a manner it deems proper. 38-314. Court of impeachment; organization Not later than ten days after the articles of impeachment have been presented to the senate, the senate shall organize as a court of impeachment and may, for the purpose of conducting the proceedings of that court, appoint a clerk who may be the secretary of the senate. The clerk shall issue all process and keep a record of the proceedings of the court. The court shall also appoint a marshal, who shall be the sergeant at arms of the senate, and an assistant marshal. The senate sitting as a court of impeachment may also employ such legal, stenographic, clerical and other assistance as is required, and fix their compensation. 38-315. Witness fees; execution of process A. Witnesses shall receive the same compensation for travel and attendance, and the same exemptions in going, remaining and returning as witnesses in civil proceedings conducted in the superior court. B. Officers executing the process and orders of the court of impeachment shall receive the fees allowed sheriffs for like service in the superior court. 38-316. Absence of senator from hearing The senate, while sitting as a court of impeachment, shall determine what accumulation of absences of a senator during the hearing shall exclude the senator from voting on the final decision. 38-317. Compensation of impeachment personnel A. The senators composing the court of impeachment and the managers representing the house of representatives shall be paid during the impeachment trial the compensation, mileage, and subsistence provided by law for members of the legislature when convened in regular session. B. The managers shall be allowed the same compensation for the time required in preparing the proceedings for presentation to the court of impeachment together with their actual and necessary expenses; such expenses shall include the personal or subsistence expenses of the managers. In addition, the managers may during the preparation of the proceedings and the trial thereof also employ legal, stenographic, clerical and other assistance as is required and fix their compensation. C. The members, officers, employees of the court, the board of managers and all employees of the board of managers shall be paid on verified claims approved by the presiding justice of the court and attested by its clerk. D. Court reporters employed by the court may be paid the compensation provided by law for reporting proceedings before magistrates, and shall also receive from the party ordering a transcript of the proceedings the compensation provided by law for such services. E. In lieu of the procedures prescribed by the terms of subsection D of this section, the court may provide by contract for the reporting of such proceedings and for the transcripts thereof. 38-318. Expenses of impeachment proceedings The expenses of impeachment proceedings, after the legislature has adjourned, shall be a charge upon the general fund of the state and shall be paid from any money in the general fund not otherwise appropriated upon verified claims, approved and attested as provided in section 38-317. 38-319. Vacancy in board of managers When a vacancy occurs in the board of managers selected by the house to try impeachment proceedings before the senate, and the house of representatives is not in session, the speaker or the presiding member, or if there is no presiding member, then the oldest member of the house in point of age, shall appoint a member of the house to fill the vacancy. 38-320. Appearance of accused; plea A. If the accused does not appear, the court of impeachment, upon proof of service or publication may, on motion or for cause shown, assign another day for hearing the impeachment proceedings, or may proceed in the absence of the accused to trial and judgment. B. The accused may, in writing, object to the sufficiency of the articles of impeachment, or he may answer them by an oral plea of not guilty. The plea of not guilty shall be entered upon the journal and places in issue every material allegation of the articles of impeachment. C. If the objection to the sufficiency of the articles of impeachment is not sustained by a majority of the members of the court who heard the argument, the accused shall be ordered forthwith to answer the articles of impeachment. If the accused then pleads guilty, or refuses to plead, the court shall render judgment of conviction against him. If the accused pleads not guilty, the court shall at such time as it appoints, try the impeachment. 38-321. Judgment If the accused is convicted, the court of impeachment shall, at such time as it appoints, pronounce judgment by resolution entered upon the journals of the court, which shall be the judgment of the senate. The judgment of conviction may provide that the accused be removed from office or that he be removed from office and disqualified to hold any office of honor, trust or profit under the constitution and laws of the state. 38-322. Performance of official duties by accused When articles of impeachment against any officer subject to impeachment are presented to the senate, such officer shall continue to perform the duties of his office unless and until removed. 38-341. Accusation by grand jury A. An accusation, in writing, against a county, district or precinct officer for wilful or corrupt misconduct in office may be presented by a grand jury of the county for or in which the officer accused is elected or appointed. B. The accusation shall state the offense charged in ordinary and concise language, and without repetition. 38-342. Service on accused; appearance and plea A. The accusation shall be delivered by the foreman of the grand jury to the county attorney, who shall cause a copy thereof to be served upon the accused, and require by written notice of not less than ten days that he appear before the superior court in and for the county and answer the accusation. The original accusation shall then be filed with the clerk of the court. B. The accused shall appear at the time appointed in the notice and answer the accusation, unless the court assigns another day for that purpose. If the accused does not appear, the court may hear and determine the accusation in his absence. C. The accused may answer the accusation either by objecting in writing to the sufficiency thereof or of any charge therein, and if overruled the accused shall immediately enter a denial which shall be entered upon the minutes of the court. 38-343. Trial; judgment A. If the accused pleads guilty or refuses to answer the accusation, the court shall render judgment of conviction against him. If the accused denies the matters charged, the court shall immediately, or at such time as it appoints, try the accusation. B. The trial shall be by jury, unless expressly waived by the accused, and conducted in the same manner as the trial of an indictment or information. C. Upon conviction, the court shall pronounce judgment that the accused be removed from office. 38-344. Procedure upon accusation of county attorney The same proceedings on the same grounds as provided in this article may be had for removal of the county attorney, except that the accusation shall be delivered to a judge of the superior court of the county, who shall thereupon file the accusation with the clerk of the court and appoint a person to act as prosecuting officer in the matter. 38-345. Right of appeal; suspension from office pending appeal An appeal may be taken from a judgment of removal to the supreme court in the same manner as from a judgment in a civil action, but until the judgment is reversed the accused shall be suspended from office. Pending the appeal the office may be filled as vacancies in other offices are filled. 38-361. Powers and duties of successor in office Any person elected or appointed to fill a vacancy, after filing his official oath and bond, if a bond is required, possesses all the rights and powers and is subject to all the liabilities, duties and obligations of the officer who previously occupied the office. 38-362. Delivery of property and records to successor Every public officer on vacating an office, or, in case of his death, his legal representative, shall deliver to his successor in office all property, books, papers and documents relating to or connected with the office and the official duties of the office. 38-363. Withholding or destruction of records or property of office by former officer; classification A public officer whose office is abolished by law, or who, after expiration of the time for which he has been appointed or elected, or after he has resigned or been legally removed from office, knowingly and unlawfully withholds or detains from his successor, or other person entitled thereto, the records, papers, documents or other writings pertaining or belonging to his office, or who knowingly mutilates, destroys or takes away any thereof, or who knowingly and unlawfully withholds or detains from his successor, or other person entitled thereto, any money or property in his custody as such officer, is guilty of a class 4 felony. 38-364. Summary proceedings to obtain property and records of office If any person refuses or neglects to deliver to the lawful incumbent any property or records pertaining to the office or the duties of the office, the incumbent may apply by petition to the superior court of the county in which the person resides, and the court shall proceed in a summary manner, after notice to the adverse party, to hear the petition and enter judgment thereon. The execution of the judgment and the delivery of the books and papers may be enforced by attachment, and also by a warrant directed to the sheriff or a constable of the county, commanding him to search for the books and papers, and to take and deliver them to the petitioner.