Crawford v. State

• Decision Date: 26 February 2004
• Docket Number: No. 07-02-0471-CV.,07-02-0471-CV.
• Citation: 153 S.W.3d 497
• Parties: David CRAWFORD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

153 S.W.3d 497

David CRAWFORD, Appellant, v. The STATE of Texas, Appellee.

No. 07-02-0471-CV.

Court of Appeals of Texas, Amarillo.

February 26, 2004.

Charles A. Hester Jr., Hester McGlasson & Cox, Canyon, for Appellant.

C. Scott Brumley, Assistant County Attorney, for Appellee.

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

In this appeal David Crawford challenges a summary judgment for the State of Texas in a quo warranto proceeding removing him from the office of Constable for Precinct 3 of Potter County, and imposing a fine of $2012.05 and costs. He presents five issues for our review which he contends show error in the trial court's judgment. Finding merit in a portion of his fourth issue, we sever that issue, remand it to the trial court and affirm the remainder of the judgment.

The relevant factual and procedural history of this litigation is essentially undisputed. In November 2000 appellant was elected to the office of constable of Potter County Precinct 3. He assumed that office on January 1, 2001. No defects in his assumption of the office have been alleged, however, at the time he took office, appellant did not have a peace officer license issued by the Texas Commission on Law Enforcement Officer Standards and Education. Section 86.0021(b) of the Local Government Code required appellant to provide the commissioners court with evidence he had received a permanent peace officer license within 270 days from the date he took office. Tex. Loc. Govt.Code Ann. § 86.0021(b) (Vernon Supp.2004). The statute goes on to provide that a constable who fails to do so "forfeits the office and is subject to removal in a quo warranto proceeding under Chapter 66 [of the] Civil Practice and Remedies Code." Id. The 270th day after appellant took office was September 28, 2001. He does not dispute that day came and went without his having acquired a peace officer license.

The Potter County Attorney, who represents the State in this proceeding, sent a letter to appellant dated October 10, 2001, which recited the provisions of section 86.0021(b) and the fact that no evidence of a peace officer license had been presented. It also informed appellant "the commissioners request that you submit your resignation to be effective immediately. This resignation will result in a vacancy in the office of constable. The commissioners are willing to consider appointing you to fill the vacancy[.]" Appellant did not submit his resignation and the county continued to pay him the salary set for the office. On November 13, 2001, the county filed a petition for leave to file information in quo warranto alleging the facts set out above, that appellant unlawfully held the office and that he had forfeited the office. It sought an order ousting appellant from the office of constable and imposing a fine for "usurping and/or unlawfully holding and executing the office." It also sought an injunction preventing appellant from acting as a constable.

On a date not shown in the record the county discontinued salary payments to appellant.¹ Appellant provided a letter to the county judge on December 27, 2001, in which he resigned from the office of constable effective immediately but purported to reserve "any claims for actual or punitive damages" from his term of office. On December 31, 2001, he filed a letter in the trial court in answer to the county's petition, together with a copy of his resignation letter. That answer requested dismissal of the cause as moot based on his resignation. The record does not disclose an express ruling on the motion but does reveal the trial court issued a discovery control order on May 21, 2002, setting July 8, 2002, as the deadline for completion of discovery and providing any motions for summary judgment were to be filed by July 19, 2002.

The State filed a motion for summary judgment July 18, 2002. The grounds asserted in the motion were that there were no genuine questions of fact on whether appellant had forfeited his office by failing to present evidence of a permanent peace officer license within the required time, and that the State was "entitled, as a matter of law, to judgment finding [appellant] guilty of engaging in an act that, by law, caused a forfeiture of his office and ousting [him] from the office of constable for Precinct 3 of Potter County, Texas." It also requested "that [appellant] be fined pursuant to section 66.003(3) of the Civil Practice and Remedies Code based upon his unlawful holding of the office of constable after he forfeited that office."

The motion challenged appellant's claim of mootness, relying on the "holdover provision," of the Texas Constitution, Article XVI, Section 17, which provides "All officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified." In its motion the State also alleged appellant "wrongfully appropriated $2,012.05" from Potter County, and requested imposition of a fine in that amount. The motion was supported by affidavits from the county judge, two employees of the county attorney's office, both addressing service of discovery requests on appellant, and an employee of the county auditor's office, stating appellant had been paid $2012.05 after September 2001.

The following day, appellant filed a formal answer to the suit, reasserting his claim of mootness. Appellant also filed his own motion for summary judgment seeking a take-nothing judgment against the State on the basis that he had resigned from the office of constable and the quo warranto proceeding was moot. In a later brief in the trial court, appellant characterized his mootness claim as a plea to the court's jurisdiction.

October 1, 2002, the trial court rendered final summary judgment denying appellant's plea to the jurisdiction and his request to join members of the commissioners court as defendants. It denied appellant's motion for summary judgment and granted the State's motion, removing him from office and declaring that office vacant. It also imposed a fine of $2012.05 for "usurping and for unlawfully holding and executing the office of constable" together with court costs.

After filing a motion for new trial complaining of the denial of a jury trial, abuse of discretion in imposing a fine, and challenging the trial court's jurisdiction, appellant timely perfected this appeal. His five issues contend the trial court erred in: (1) finding it had jurisdiction; (2) removing an elected official from office without a trial by jury; (3) imposing a fine without conducting a trial by jury; (4) concluding appellant was not entitled to compensation and imposing a fine in the amount of the payments; and (5) rendering a declaratory judgment that appellant's office was vacant, relief he contends was not authorized by statute.

Jurisdiction

It is fundamental that a court must have jurisdiction over the parties and the subject matter before it or any judgment it renders is void. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990). Subject matter jurisdiction requires that there be a live controversy between the parties. State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex.1994). A moot case lacks justiciability. Patterson v. Planned Parenthood of Houston, 971 S.W.2d 439, 442 (Tex.1998). A case becomes moot if at any stage there ceases to be an actual controversy between the parties. National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex.1999). The test for mootness is commonly stated as whether the court's action on the merits would affect the rights of the parties. See VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex.1993).

Despite the language of section 86.0021(b) of the Local Government Code that a constable who fails to provide evidence of receipt of a permanent peace officer license by the required date "forfeits the office," neither party contends that appellant automatically vacated his office when he failed to become licensed by September 28, 2001. The parties cite a 2002 Texas Attorney General's opinion stating that a constable who fails to provide evidence of licensure automatically forfeits the office but is not automatically removed from office, and may continue to perform the duties of the office until removed by a district court in a quo warranto proceeding. Op. Tex. Atty Gen. No. JC-0514 (2002).

Chapter 66 of the Civil Practice and Remedies Code governs the conduct of quo warranto proceedings. The provisions relevant here include:

§ 66.001. Grounds.

An action in the nature of quo warranto is available if:

(1) a person usurps, intrudes into, or unlawfully holds or executes a franchise or an office, including an office in a corporation created by the authority of this state;

(2) a public officer does an act or allows an act that by law causes a forfeiture of his office;

§ 66.003. Judgment

If the person against whom the information is filed is found guilty as charged, the court:

(1) shall enter judgment removing the person from the office or franchise;

(2) shall enter judgment for the costs of prosecution in favor of the relator; and

(3) may fine the person for usurping, intruding into, or unlawfully holding and executing the office or franchise.

Tex. Civ. Prac. & Rem.Code Ann. § 66.001-.003 (Vernon 1997).

These provisions have their origins in statutes enacted at least as early as 1879.² See Scolaro v. State ex rel. Jones, 1 S.W.3d 749, 758 (Tex.App.-Amarillo 1999, no pet.). Quo warranto actions are described as "those through which the State acts to protect itself and the good of the public generally." Fuller Springs v. State ex rel. City of Lufkin, 513 S.W.2d 17, 19 (Tex.1974); see Hunt v. City of Longview, 932 F.Supp. 828, 834 (E.D.Tex.1995). With respect to such actions involving officeholders, the purpose of a quo warranto action is to determine disputed questions concerning a person's right to hold an office and exercise its functions. State...