Dunbar v. Brazoria County

• Decision Date: 27 October 1949
• Docket Number: No. 12126.,12126.
• Citation: 224 S.W.2d 738
• Parties: DUNBAR v. BRAZORIA COUNTY et al.
• Court: Texas Court of Appeals

Page 738

224 S.W.2d 738

DUNBAR v. BRAZORIA COUNTY et al.

No. 12126.

Court of Civil Appeals of Texas. Galveston.

October 27, 1949.

Rehearing Denied November 17, 1949.

Davis & Henderson, of Angleton, for appellant.

Masterson & Pope, of Angleton, and Harrison & Wellborn, of Alvin, for appellees.

MONTEITH, Chief Justice.

This is an appeal from an order of the District Court of Brazoria County sustaining a plea to the jurisdiction of that court to hear appellant's suit to set aside an order of the Commissioners Court of Brazoria County removing appellant from the office of County Road Engineer of Brazoria County and that he be found to be the qualified County Road Engineer of that county until such time as he was legally removed. Appellant also sought recovery from Brazoria County of the sum of $500 per month from the 7th day of July, 1948, until the date of the hearing thereof, alleged to be the salary due him as County Road Engineer from the date of his discharge from said office by the Commissioners Court.

Appellees plead a compliance by them with the terms of the Optional Road Law of the State of Texas in removing appellant from the office of County Road Engineer and alleged that the district court was without jurisdiction to entertain jurisdiction of appellant's asserted cause of action.

Appellees' plea to the jurisdiction was sustained and the proceeding was ordered dismissed.

Appellant relies on two points of asserted error: He contends that the court erred in holding that the Commissioners Court had authority to remove him as County Road Engineer for the reason that the County Road Engineer was a public officer of the State of Texas, and under Article 5, Section 24 of the Constitution of the State of Texas, Vernon's Ann.St., the district court is vested with exclusive jurisdiction of all proceedings for the removal of county officers.

Under his second point, appellant contends that the County Road Law of 1947, Vernon's Ann.Civ.St. art 6716 — 1, under which he was appointed, does not prescribe what tribunal has jurisdiction to remove him and that Article 5, Sec. 8 of the Constitution of the State of Texas provides that the district court shall have general original jurisdiction over all causes of action for which jurisdiction is not provided by law.

This appeal arose over the discharge of appellant by the Commissioners Court of Brazoria County from the position of County Road Engineer.

The record reflects that the Commissioners Court employed appellant as County Road Engineer under the provisions of the Optional Road Law of 1947 which had been adopted by Brazoria County. On June 7, 1948, the Court, by a majority vote, removed appellant from his office as County Road Engineer and sent him a copy of the order of removal as provided under Sec. 7 of the Optional Road Law, Article 6716 — 1 of the Revised Statutes, Vernon's Ann.Civ.St.

On June 15, 1948, appellant requested that the Commissioners Court furnish him a written statement detailing the reasons for his discharge and that he be given a public hearing. On June 6 and 7, 1948, he was given the hearing before the Court after which the Commissioners Court entered the order of removal complained of.

The controlling issue presented in the appeal is whether the office of County Road Engineer, which is provided for under Article 6716 — 1 of the Revised Civil Statutes of Texas, is a public officer within the meaning of the Constitution and therefore not subject to removal by the Commissioners Court notwithstanding the fact that Sec. 7 of Article 6716 — 1 authorizes his removal by a majority vote of the Commissioners Court.

It was stipulated by the parties that appellant had been properly qualified as County Road Engineer of Brazoria County and that Brazoria County had adopted the provisions of "the Optional County Road Law of 1947", Article 6716 — 1, Vernon's Ann.Civ.St.; that on or about June 8, 1948, appellant was furnished with written notice of his removal from the office by the Commissioners Court and that he requested of the Commissioners Court that he be informed of the nature of the charges against him, and that he be given a hearing on these charges before either of the district judges of Brazoria County.

After the hearing of the charges against appellant, the Commissioners Court entered an order removing him from the office of County Road Engineer.

Article 6716 — 1, Vernon's Annotated Civil Statutes, Acts 50th Legislature, 1947, Chapter 178, page 288, authorizes the employment of a County Road Engineer to have general supervision of the roads of a county, if the provisions of the statute are adopted by a majority vote of its qualified voters.

Sections 1 and 2 of the Article are not, we think, material to the consideration of the instant case. Section 3 of said Article vests the construction and maintenance of county roads in the county road department and provides that it shall be composed of the Commissioners Court "as the policy-determining body" the County Road Engineer "as the chief executive officer", and other administrative personnel and road employees.

Section 4 of said Article provides that the administration of the road department shall be on the basis of the county as a whole without regard to Commissioners' precincts.

Section 5 provides that: "The County Road Engineer shall be appointed by the Commissioners Court. He shall be a licensed professional engineer, experienced in road construction and maintenance, who shall meet the qualifications required by the State Highway Department for its county engineers."

Section 6 provides for salary of not to exceed $7200 per year, the exact amount to be determined by the Commissioners Court, out of the road and bridge fund of the county.

Section 7 provides that: "The County Road Engineer shall hold his position for an indefinite term and may be removed by a majority vote of the Commissioners Court. Removal shall not become effective until thirty (30...