Garcia v. Laughlin

• Decision Date: 14 December 1955
• Docket Number: No. A-5524,A-5524
• Citation: 155 Tex. 261,285 S.W.2d 191
• Court: Texas Supreme Court
• Parties: Estella G. GARCIA et al., Relators, v. C. W. LAUGHLIN, District Judge, et al., Respondents.

Page 191

285 S.W.2d 191

155 Tex. 261

Estella G. GARCIA et al., Relators, v. C. W. LAUGHLIN, District Judge, et al., Respondents.

No. A-5524.

Supreme Court of Texas.

Dec. 14, 1955.

Rehearing Denied Jan. 18, 1956.

Gordon Gibson, Laredo, for relators.

Sam H. Burris, Dist. Atty., Alice, John Ben Shepperd, Atty. Gen., and Sidney P. Chandler and D. S. Meredith, Asst. Attys. Gen., for respondents.

GRIFFIN, Justice.

This is an original application for writ of mandamus and prohibition filed in this Court by relators, Estella G. Garcia and other citizens of Duval County, Texas. The facts in this case are as follows:

On October 26, 1955, the Attorney General of Texas, the District Attorney of the 79th Judicial District of Texas, which includes Duval County, Texas (Duval County had and has a regularly elected, qualified and acting county attorney who did not join in the suit at the time of the filing and the entry of the orders under attack in this proceeding), upon the relation of Frank A. Vaello, filed suit in the District Court of Duval County, asking the judge of said court to remove relator, Estella G. Garcia, from her office as County Commissioner, Precinct No. One, Duval County, Texas. In the petition seeking removal it was alleged that relator, Garcia, as a member of the Commissioners' Court had violated the provisions of the Nepotism Act, Vernon's Ann.P.C. art. 432 et seq., of our State and particularly in four separate instances by casting her vote to pay three claims for money against Duval County in favor of her son, and in the fourth instance in favor of relator's daughter, when relator well knew her daughter had been discharged and held no valid claim against the County. It was also alleged that by voting to pay her daughter funds of Duval County, relator was hiring, or attempting to hire said daughter in violation of the Nepotism Act. There was a further allegation that relator, in conjunction with certain other members of the Commissioners' Court of Duval County, had entered into an alleged illegal contract undertaking to employ an attorney to recover funds belonging to Duval County, and had agreed to pay such attorney 15% of all amounts so collected as result of suit or suits filed by such attorney. It was alleged that an appeal was taken from such order of employment to the District Court of Duval County; and that the District Court had rendered a judgment enjoining the execution of the contract because, in making this contract, the Commissioners' Court had 'acted without reason, arbitrarily and wrongfully, and constitute acts of bad faith and not being for the best interest of Duval County, Texas, and the public.' Certain other acts and statements of relator, Garcia, were alleged, and it was alleged her action and conduct in this regard rendered her incompetent to hold the Commissioner's office, and that she should be removed therefrom. It was further alleged that all of the acts charged against relator, Garcia, were wilfully and knowingly done by relator and constituted official misconduct, as well as incompetency. The prayer was (1) for an order directing the Clerk of the District Court to issue citation, accompanied by a certified copy of the petition, to Estella G. Garcia, the defendant in the suit; (2) to set a time for hearing of the cause; (3) the suspension of relator, Garcia, from her office, and the appointment by the court of a qualified person as Commissioner in relator's place, conditioned upon such appointee giving a proper and legal bond and (4) upon final hearing that Estella G. Garcia be permanently removed, and for general relief. The petition was duly sworn by Vaello, as one of the plaintiffs. After presentation of this petition on October 26, 1955 the District Judge directed the Clerk of the court to file same, and set the cause for hearing on November 25, 1955 at 10:00 a. m. at the courthouse of Duval County, and directed that proper citation and notice of setting be issued to Estella G. Garcia. On October 26, 1955 Vaello filed a motion that Mrs. Garcia be suspended from her office and some qualified person be appointed temporarily to fill her office, upon qualifying according to law. Thereafter, and on the same day, the District Judge suspended Mrs. Garcia from office and appointed T. H. Molina, a qualified person to fill her office, and required him to give bond as required by law for the protection of Mrs. Garcia, should she not be removed from office. Molina gave a bond which was approved by the District Judge in open court on October 26, 1955.

Mrs. Garcia and other citizens of Duval County filed this application for mandamus (1) commanding the District Judge to set aside his order removing Mrs. Garcia from office and appointing T. H. Molina in her stead; (2) prohibiting the District Judge from taking any action in this suit, 'unless and until the County Attorney of Duval County should join in the suit on behalf of the State of Texas,' and certain other orders relative to other litigation in counties other than Duval County.

It is the contention of relators that the district court and the judge thereof acquired no jurisdiction of this cause, for the reason that the county attorney of Duval County did not join in the same; therefore, the orders of the district judge were void. Unless the action taken by the district judge were void, relator can recover no relief in this proceeding.

The present suit was instituted under the provisions of Article 5, Section 24 of the State Constitution, Vernon's Ann.St., and Article 5970, Vernon's Annotated Civil Statutes, which gives to the district judge power to remove certain county officers, including commissioners, for '* * * incompetency, official misconduct, habitual drunkenness * * *.' In addition to the Constitutional provision covering the three above causes for removal, the article also provides: '* * * or other causes defined by law, upon the cause therefor being set forth in writing and the finding of its truth by a jury.' Under this provision of the Constitution it has been held that, pending a trial of the cause upon its merits, the district judge has the right and power to temporarily suspend such officer and appoint for the time being another to discharge the duties of the office. Article 5982, Vernon's Annotated Civil Statutes; Griner v. Thomas, 101 Tex. 36, 104 S.W. 1058, 16 Ann.Cas. 944; Poe v. State, 72 Tex. 625, 10 S.W. 737; Walker v. Walter, Tex.Civ.App.1922, 241 S.W. 524, no writ history.

In order that the district judge and the district court may have jurisdiction to hear and determine the cause, it is necessary that the parties bringing the action possess the legal capacity to institute and maintain the suit. Staples v. State ex rel. King, 112 Tex. 61, 245 S.W. 639; Maud v. Terrell, 109 Tex. 97, 200 S.W. 375. Individual citizens have no private interest distinguishable from the public as a whole and have no right to maintain an ouster suit without being joined by a proper state official. Staples v. State, supra; Maud v. Terrell, supra; State ex rel. Hancock v. Ennis, Tex.Civ.App.1946, 195 S.W.2d 151, ref. n. r. e.; Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731; State Board of Dental Examiners v. Bickham, Tex.Civ.App.1947, 203 S.W.2d 563, no writ history; State ex rel. Owen v. Starnes, Tex.Civ.App.1922, 246 S.W. 424, no writ history.

Relators rely upon Article 5, § 21, State Constitution, to sustain their position that only the county attorney is authorized to represent the state in an ouster proceeding brought under the provisions of Title 100, Vernon's Annotated Civil Statutes of which Articles 5972 and 5996 are a part; therefore, the county attorney not having joined in this suit, all proceedings had herein are void. Article 4, § 22, defines the duties and powers of the Attorney General to represent the State '* * * in all suits and pleas in the Supreme Court of the State in which the State may be a party * * * and perform such other duties as may be required by law. * * *' This article was also amended November 2, 1954, but the quoted language is substantially that existing prior to the amendment. The powers conferred by the Constitution upon the state officials are generally held to be exclusive, and except in the manner authorized by the Constitution, these powers cannot be enlarged or restricted. Maud v. Terrell, supra; Brady v. Brooks, 99 Tex. 366, 89 S.W. 1052; Harris County v. Stewart, 91 Tex. 133, 41 S.W. 650; State v. International & G. N. R. Co., 89 Tex. 562, 35 S.W. 1067; Staples v. State, supra.

In the case of State ex rel. Downs v. Harney, Tex.Civ.App.1942, 164 S.W.2d 55, 56, wr. ref., w. o. m., the Attorney General, not joined by the district or county attorney, upon the relation of certain citizens of Nueces County, brought ouster proceedings against the Sheriff of Nueces County. The State lost in the trial court upon a jury verdict, and the Attorney General appealed. The right of the Attorney General to bring and prosecute the suit was directly questioned and dealt with by the Court of Civil Appeals. Judgment was rendered and cause dismissed as being instituted without lawful authority. Although the application for writ of error was refused by this Court 'want of merit', such action by this Court, of necessity, approved the holding of the Court of Civil Appeals that the Attorney General was without authority to bring such suit under Articles 5970 et seq., because that issue was directly decided, and had such holding been incorrect we could not have failed to have granted the writ on such an important law question. In the course of that opinion, the Court said:

'As the powers and duties of the Attorney General are prescribed by the Constitution and Statutes, those powers must be limited to those so prescribed, and may not be enlarged by the courts.

'It is our considered judgment that, since there is no constitutional or statutory provision which vests in the Attorney General the...