Gallagher v. State

• Decision Date: 29 May 1985
• Docket Number: No. 59677,59677
• Citation: 690 S.W.2d 587
• Parties: David Patrick GALLAGHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 587

690 S.W.2d 587

David Patrick GALLAGHER, Appellant, v. The STATE of Texas, Appellee.

No. 59677.

Court of Criminal Appeals of Texas,

En Banc.

May 29, 1985.

James C. Henry, John Ledger, Peter E. Ryba, Houston, for appellant.

Carol S. Vance, Former Dist. Atty., and W. Scott Carpenter and Ray Howard, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for official oppression, a Class A misdemeanor, V.T.C.A., Penal Code, § 39.02. The jury assessed punishment at 180 days in the county jail and at a fine of $1,000.00.

On appeal we are confronted with appellant's initial ground of error that the County Criminal Court at Law No. 1 of Harris County, where the conviction occurred, did not have jurisdiction over the offense charged. He argues that by virtue of Article V, § 8 of the Texas Constitution and Article 4.05, V.A.C.C.P., the district court has exclusive jurisdiction over all misdemeanors involving "official misconduct," and that the offense of official oppression is "official misconduct" as that phrase or term is used in the State Constitution.

There was no plea to the jurisdiction, and the issue is raised for the first time on appeal. However, the question of the jurisdiction of the convicting court may be raised at any time. See Bass v. State, 427 S.W.2d 624, 626 (Tex.Cr.App.1968); Ex parte Vasquez, 122 Tex.Cr.R. 475, 56 S.W.2d 190 (1933); Bragg v. State, 109 Tex.Cr.R. 632, 6 S.W.2d 365 (1928); Parr v. State, 108 Tex.Cr.R. 551, 1 S.W.2d 892

(1928); Woodard v. State, 86 Tex.Cr.R. 632, 218 S.W. 760 (1920). ¹

The State counters with the contention that in the current 1974 Penal Code the Legislature created separate offenses by enacting § 39.01 (Official Misconduct) ² and § 39.02 (Official Oppression), ³ and made clear the distinction between two types of legal duties implicitly recognized by prior law. ⁴ The State agrees the Legislature intended to make "official misconduct" mean a breach of the legal duties a public servant owes to the citizenry at large and intended "official oppression" to mean violation of the rights of an individual citizen by a public servant. The State urges the conduct here in issue falls within the latter category and such case is not within the exclusive jurisdiction of the district court.

The information, in pertinent part, alleged that on or about July 6, 1977, the appellant

"... while a public servant acting under the color of his office and employment intentionally subjected D______ S______ to mistreatment, arrest, detention, and search that the Defendant knew at the time was unlawful...."

The facts show that on July 5, 1977, about 11:30 p.m., the appellant Gallagher, a reserve deputy constable of Precinct No. 3 of Harris County, was serving civil papers. He drove his motor vehicle past a county park where teenagers were shooting fireworks at passing cars. As the appellant entered the park adjacent to a library where the disturbance was occurring, all the vehicles there left except a van parked between two baseball fields.

Appellant decided to investigate the van. He took the license number and then shined a light into the back of the van where he observed a nude young couple engaged in oral sodomy. He stated he was a Harris County officer and ordered the couple out of the van. They dressed and came out. He told them he was Officer "Johnson." Steven T______ had no identification save a bank deposit slip without name. Appellant questioned D______ S______, the complaining witness, about her home address and telephone number, place of employment, the exact Joske store where she worked, her hours of employment, etc. Appellant declared he could have arrested them, but that he would release the 21-year-old D______ S______ and her companion.

The next morning appellant went to the Joske store where D______ S______ was employed in the photographic studio. He told her he could not let the matter "slide," but had to fill out a report and insisted she come immediately to his car outside for such purpose. Once in the appellant's car he told her he was going to have to take her downtown for an examination by a female police officer and thereafter her parents would be required to pick her up. She requested to take her own car, but her request was denied. Appellant drove to the third level of a parking garage and copied the license number of D______ S______'s car. They drove to the second level of the garage into a far corner where the sun was shining. He informed D______ S______ that he could alleviate the trip downtown and the call to her parents if he was permitted to conduct the examination. Appellant demanded that D______ S______ pull her underwear down to her ankles and spread her legs. Crying, she did so, and was told to pull herself apart which she also did. Appellant then required D______ S______ to expose her breasts to him.

Appellant then drove D______ S______ to the front of the store, let her out, and told her his fee for getting the matter quashed was a steak dinner and three beers, and that if he didn't call within an hour "everything was taken care of...." He never called.

After returning to her post, D______ S______ began to cry and reported the incident to her boss. The store's security officers were notified. That very night a female security officer of the store and a reserve deputy constable parked in a van in the same park acting as decoys. The appellant approached their van, and ordered them out. Appellant was arrested, placed in a lineup and identified by D______ S______ and her male companion of the previous evening.

G.B. Scott, Chief Deputy Constable for Precinct No. 3, testified that appellant had served as a reserve deputy constable for Precinct No. 3. Scott testified that on the date of the offense, July 6, 1977, appellant was "working under supervision" serving warrants. ⁵

Appellant testified he had been a reserve deputy constable for Precinct No. 3 for 10 years and had undergone training for the position. He related he was serving warrants on the night of July 5, and on July 6 when he went to the complainant's place of employment. He admitted he identified himself to the complaining witness as a "Harris County officer" and showed her a badge.

The question presented is one of constitutional, not statutory, interpretation for it is the meaning of "official misconduct" in Article V, § 8 of our state Constitution that controls.

Article V, § 8, Tex.Const., as adopted in 1876, provided in part:

"Sec. 8. The District Court shall have original jurisdiction in all criminal cases of the grade of felony; in all suits in behalf of the State to recover penalties, forfeitures and escheats; of all cases of divorce; of all misdemeanors involving official misconduct;...." (Emphasis supplied.)

This language has remained unchanged in the amendments of 1891 and 1973.

Article 4.05, V.A.C.C.P. (Jurisdiction of District Courts), provides:

"District courts and criminal district courts shall have original jurisdiction in criminal cases of the grade of felony, and of all misdemeanors involving official misconduct."

Article 4.05, supra, as well as its forerunners, is and was the legislative restatement of the constitutional command. In order to determine the meaning of "official misconduct," we must examine the derivation of the district court's jurisdiction.

The Constitution of 1845, the first charter drafted by Texas in the course of attaining statehood, made the district court a court of general jurisdiction, with "original jurisdiction of all criminal cases...." Article IV, § 10, Texas Constitution of 1845. This general grant of criminal jurisdiction was retained in the constitutions of 1861 (Article IV, § 10), 1866 (Article IV, § 6) and 1869 (Article V, § 7).

During the Constitutional Convention of 1875, the majority of the Judiciary Committee submitted a proposed judiciary article continuing the original jurisdiction of the district court in all criminal cases. County courts were also to be established, each with jurisdiction over criminal misdemeanors. Journal of the Constitutional Convention of 1875 (The "News" Office, Galveston, Texas), p. 408. In a minority report, however, great concern was voiced regarding the overcrowding of the dockets of the district courts with many "petty cases." Indeed, this was alleged to be one of the main concerns of the people of Texas in calling for a new Constitution. Id., at 413-414. The report noted that under the majority's proposal, the district courts would have concurrent jurisdiction with the county courts in misdemeanor cases and that very few cases would be transferred to the county courts. Id., 414.

The minority members proposed to limit the original criminal jurisdiction of the district courts to "criminal cases in the grade of felony" and "cases of misdemeanor involving official misconduct," as well as gambling cases and banking and insurance law violations. The gambling, banking and insurance provisions were deleted in the final form of Article V, § 8, but the minority's proposal otherwise prevailed. The generally accepted reason for the adoption of the minority's viewpoint was, "The Convention ... apparently felt that numerous petty cases in the district courts were causing unjust and unnecessary delay in trying more important cases." 1 G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis (1977), p. 411.

It thus appears that the framers of our 1876 Constitution intended to relieve the district courts of the burden of handling all but the most important class of misdemeanors, which class in their opinion consisted of "official misconduct" offenses. We cannot say, and the proceedings of the Constitutional Convention do not suggest, that it was intended that distinctions be made as to the type of official misdeed or the type of officer...