Bradley v. State ex rel. White

• Decision Date: 08 April 1999
• Docket Number: No. 97-1135,97-1135
• Citation: 990 S.W.2d 245
• Parties: 42 Tex. Sup. Ct. J. 513 Scott BRADLEY, Petitioner, v. The STATE of Texas on the Relation of Dale WHITE, Respondent.
• Court: Texas Supreme Court

Page 245

990 S.W.2d 245

42 Tex. Sup. Ct. J. 513

Scott BRADLEY, Petitioner, v. The STATE of Texas on the Relation of Dale WHITE, Respondent.

No. 97-1135.

Supreme Court of Texas.

Argued Sept. 28, 1998.

Decided April 8, 1999.

Bob E. Shannon, Joe R. Greenhill, Scott K. Field, Austin, E. Eldridge Goins, Jr., James W. Morris, Jr., Jeffrey S. Wigder, Dallas, for Petitioner.

Ann Diamond, Tim Curry, Marshall M. Searcy, Jr., Dee J. Kelly, William N. Warren, Michael Schattman, Barbara P. Neely, Fort Worth, for Respondent.

Justice BAKER delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice ENOCH, Justice OWEN, Justice HANKINSON, Justice O'NEILL and Justice GONZALES join.

This is a quo warranto case. Scott Bradley asserts that the Board of Aldermen of the Town of Westlake, Texas did not lawfully remove him as Mayor under section 21.002(f) of the Texas Local Government Code because the removal proceedings violated Texas Rule of Civil Evidence 605. ¹ We agree. Therefore, we reverse the court of appeals' judgment for the State and render judgment for Bradley.

I. BACKGROUND

In May 1994, Scott Bradley was elected Mayor of Westlake, a general-law municipality. He was reelected in May 1996. On April 14, 1997, Howard Dudley, a Westlake alderman, filed a complaint against Bradley alleging official misconduct and incompetency. Specifically, Dudley alleged that Bradley (1) canceled a special town meeting called by alderman Carroll Huntress and removed the public notice of the meeting; (2) directed the Town Secretary to exclude from the meeting agenda an item Huntress requested and to remove a part of the proposed minutes from another town meeting; and (3) caused the Town Engineer to prepare a false boundary map of Westlake, and then presented the falsified map to the Board of Aldermen as part of an ordinance.

On April 28, 1997, the Westlake Board of Aldermen sat as a court to hear the charges against Bradley and to decide whether there was sufficient cause for his removal from the Mayor's office. During the trial, Dudley and another alderman, Al Oien, testified against Bradley. Dudley testified that he had provided Bradley with a request for and notice of the meeting Bradley allegedly canceled. Oien testified that when the Board passed the ordinance at issue, no map was attached to it. At the end of the trial, four of the five aldermen, including Dudley and Oien, found Bradley guilty of the charges. On motion made by Oien and seconded by Dudley, the Board voted to remove Bradley as Mayor of Westlake. Days later, the aldermen appointed Dale White as Mayor. Bradley refused to recognize the aldermen's judgment on the grounds that the removal procedure violated applicable procedural rules, substantive state law, and his federal and state constitutional rights.

On May 20, 1997, the State of Texas, on relation of Dale White, filed a quo warranto action seeking a declaration that White, not Bradley, was the lawful Mayor. The State alleged that: (1) the aldermen had lawfully removed Bradley from the Mayor's office under Texas Local Government Code section 21.002(f); (2) the aldermen had lawfully appointed Dale White as Mayor; (3) White had taken the oath of office on May 2, 1997, and therefore, lawfully held office as Mayor; and (4) Bradley had unlawfully usurped and intruded into the Mayor's office since his lawful removal. The State filed a motion for summary judgment asserting as grounds the allegations in its quo warranto petition.

Bradley filed a cross-motion for summary judgment. In his summary judgment motion Bradley alleged the following affirmative defenses: (1) Texas Local Government Code section 21.002 violates the Texas Constitution's separation of powers doctrine; (2) section 21.002 is unconstitutionally vague; (3) Bradley's removal trial violated his federal and state procedural due process rights; (4) a section 21.002 removal trial is penal in nature, and Bradley was denied his state constitutional right to a jury trial; (5) the aldermen were disqualified under the Texas Constitution to sit as judges in the removal trial because they had a pecuniary interest in the outcome; (6) the removal trial violated Texas Rules of Civil Evidence 605, 607, and 611b, and Texas Rules of Civil Procedure 18b, 527, 528, 544, and 571; (7) the removal trial violated the Texas Open Meetings Act; (8) the evidence at trial did not support Bradley's removal; (9) the removal judgment became a nullity when a new board of aldermen granted Bradley's motion for new trial; and (10) the removal judgment became a nullity when Bradley filed an appeal bond with the new board of aldermen.

The trial court denied the State's motion for summary judgment and granted Bradley's motion for summary judgment without specifying upon which of Bradley's summary judgment grounds it based its judgment. The court of appeals held that the State had conclusively proved the elements of its quo warranto action. 956 S.W.2d at 745. The court of appeals also held that Bradley had not conclusively proved all essential elements of his defense in quo warranto as a matter of law nor had he defeated at least one element of the State's quo warranto claim. Accordingly, the court of appeals reversed the trial court's judgment and rendered summary judgment for the State.

II. APPLICABLE LAW

A. STANDARD OF REVIEW--CROSS MOTIONS FOR SUMMARY JUDGMENT

When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides' summary judgment evidence and determine all questions presented. See Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). The reviewing court should render the judgment that the trial court should have rendered. See Agan, 940 S.W.2d at 81; Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex.1984). If a party brings the case to this Court and we reverse the court of appeals, we should render the judgment that the court of appeals should have rendered. See Agan, 940 S.W.2d at 81; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400-01 (1958). When a trial court's order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm summary judgment if any of the summary judgment grounds are meritorious. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995). We do not consider constitutional challenges when we can dispose of a case on nonconstitutional grounds. See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 13 (Tex.1994).

B. REMOVAL PROCEDURES

The Texas Local Government Code governs a mayor's removal from office in a general-law municipality. See TEX. LOC. GOV'T CODE § 21.002. A mayor may be removed from office for official misconduct, intentional violation of a municipal ordinance, habitual drunkenness, incompetency, or a cause prescribed by a municipal ordinance. See TEX. LOC. GOV'T CODE § 21.002(c). When a complaint is made against the mayor, the complaint must be presented to an alderman of the municipality. See TEX. LOC. GOV'T CODE § 21.002(f). The alderman shall then file the complaint, serve the mayor with a copy, set a date for trial of the case, and notify the mayor and the other aldermen to appear on that day. See TEX. LOC. GOV'T CODE § 21.002(f). A majority of the municipality's aldermen constitutes a court in the mayor's removal trial with one of the aldermen presiding over the trial. See TEX. LOC. GOV'T CODE § 21.002(f). If two-thirds of the members of the court who are present at the trial find the mayor guilty of the complaint's charges and find that the charges are sufficient cause for removal from office, the court's presiding officer shall enter a judgment removing the charged officer and declaring the office vacant. See TEX. LOC. GOV'T CODE § 21.002(h).

Section 21.002 removal proceedings are subject to the procedural rules governing the justice courts and to procedural rules governing district and county courts, to the extent these govern justice courts. See TEX. LOC. GOV'T CODE § 21.002(h); TEX.R. CIV. P. 523 ("All rules governing the district and county courts shall also govern the justice courts, insofar as they can.") In addition, the Texas Rules of Civil Evidence apply to section 21.002 trials. See TEX.R. CIV. EVID. 101(b) ("[E]xcept as otherwise provided by statute, these rules govern civil proceedings in all Texas courts other than small-claims courts.").

C. TEXAS RULE OF CIVIL EVIDENCE 605

"The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve this point." TEX.R. CIV. EVID. 605. Texas Rule of Civil Evidence 605 is identical to its federal counterpart. See FED.R.EVID. 605. Not surprisingly, there are few reported federal or state cases involving Rule 605 violations. Most cases that do involve judges testifying at the trial over which they are presiding are decided on due process grounds. See, e.g.,Brown v. Lynaugh, 843 F.2d 849, 851 (5 th Cir.1988); Tyler v. Swenson, 427 F.2d 412, 415 (8 th Cir.1970); Terrell v. United States, 6 F.2d 498, 499 (4 th Cir.1925); Haynes v. State of Missouri, 937 S.W.2d 199, 202 (Mo.1996); Wilson v. Oklahoma Horse Racing Comm'n, 910 P.2d 1020, 1024 (Okla.1996). These cases hold that a judge testifying as a witness violates due process rights by creating a constitutionally intolerable appearance of partiality. See Brown, 843 F.2d at 851 ("[I]t is difficult to see how the neutral role of the court could be more compromised, or more blurred with the prosecutor's role, than when the judge serves as a witness for the state."); Tyler, 427 F.2d at 416 ("The danger ... of subjecting [the judge's] impartiality to doubt and of placing the [party against whom the judge testifies] at an unfair disadvantage ... is very obvious."); see also In Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (195...