Garcia v. Tobin

• Decision Date: 27 November 1957
• Docket Number: No. 13285,13285
• Citation: 307 S.W.2d 836
• Parties: Amando GARCIA, Jr., and George B. Parr, Appellants, v. Daniel TOBIN, Jr., et al., Appelles.
• Court: Texas Court of Appeals

Page 836

307 S.W.2d 836

Amando GARCIA, Jr., and George B. Parr, Appellants, v. Daniel TOBIN, Jr., et al., Appelles.

No. 13285.

Court of Civil Appeals of Texas, San Antonio.

Nov. 27, 1957.

Rehearing Denied Dec. 18, 1957.

Gerald Weatherly, Laredo, Werner A. Gohmert, Alice, for appellant.

Sidney T. Chandler, Sam H. Burris, Alice, Walter Purcell, San Diego, for appellees.

W. O. MURRAY, Chief Justice.

This is a consolidated case. Originally Amando Garcia, Jr., brought a suit against Daniel Tobin, Jr., County Judge of Duval County, and the then four County Commissioners of that County, seeking, among other things, a writ of mandamus requiring the defendants to issue to him a certificate showing that he was elected to the office of County Clerk of Duval County at the General Election in November 1956. On January 1, 1957, Rafael Garcia qualified as County Clerk of Duval County, under an appointment by the Commissioners' Court of that County, and thereafter this became a suit between Amando Garcia, Jr., and Rafael Garcia for the office of County Clerk of Duval County.

Likewise, George B. Parr originally brought a suit against Daniel Tobin, Jr., and the County Commissioners, seeking, among other things, a writ of mandamus requiring the defendants to issue to him a certificate showing that he was elected to the office of Sheriff of Duval County at the General Election in November, 1956. On January 1, 1957, J. P. Stockwell qualified as Sheriff of Duval County under an appointment by the Commissioners' Court of Duval County, and thereafter that cause became a suit between George B. Parr and J. P. Stockwell for the office of Sheriff of Duval County. These two cases were consolidated by the trial court with a third suit, filed by Felipe Valerio, Jr., against Daniel Tobin, Jr., and others. The Valerio case is not involved in this appeal and need not be further mentioned.

Ultimately, Amando Garcia, Jr., and George B. Parr filed motions for a summary judgment, and the defendants also filed a motion for a summary judgment.

On August 27, 1957, the trial court heard the motions, and denied the motions of Amando Garcia, Jr., and George B. Parr, but granted the motion of defendants, and rendered judgment that George B. Parr and Amando Garcia, Jr., take nothing, from which judgment they have prosecuted this appeal.

In the November, 1956, General Election in Duval County, Amando Garcia, Jr. received 4,758 votes for the office of County Clerk, while Rafael Garcia received only 7 write-in votes for that office. George B. Parr received 2,560 votes, while his opponent, J. P. Stockwell, received only 2,027, for the office of Sheriff. The Commissioners' Court as a canvassing board took the position that both Amando Garcia Jr., and George B. Parr were disqualified and ineligible to hold public office in Duval County, under the provisions of the Texas Constitution, Art. 3, Sec. 20, Vernon's Ann.St., and under the provisions of Art. 1.05 of Texas Election Code, V.A.T.S. refused to count any of the votes received by these two candidates, and under the provisions of Art. 1.06, Texas Election Code, the County Judge refused to issue to them certificates of election to the respective offices for which each had received a majority of the votes cast.

The Commissioners' Court then declared these two offices vacant, and appointed J. P. Stockwell to the office of Sheriff and Rafael Garcia to the office of County Clerk. The decision in this case turns upon the meaning of, and the interpretation to be given Sec. 20, Art. 3 of the Texas Constitution. Sec. 20 reads as follows:

'Collectors of taxes; persons entrusted with public money; ineligibility

'Sec. 20. No person who at any time may have been a collector of taxes, or who may have been otherwise entrusted with public money, shall be eligible to the Legislature, or to any office of profit or trust under the State government, until he shall have obtained a discharge for the amount of such collections, or for all public moneys with which he may have been entrusted.'

This section necessarily presupposes that there has been a judicial determination of the entrustment of public moneys, and a failure thereafter to obtain a discharge for the amount of such public moneys so entrusted, or perhaps in some some cases where such defalcation has been fully admitted. If any other meaning should be given to this section it would amount to a denial of due process of law and would be void. If a prior judicial determination of the defalcation would not be required, then each election judge and each canvassing board could hear and determine such matter without notice to the candidate, and without his having any opportunity to offier evidence or be heard in his own behalf. Such a proceeding would be a denial of due process of law, and would be a void proceeding under our 'Bill of Rights.'

The early Texas case of State ex rel. Clements v. Humphreys, 74 Tex. 466, 12 S.W. 99, 5 L.R.A. 217, sheds some light upon the situation here. There Humphreys was accused of offering a bribe to the voters if they would elect him to the office of County Clerk, in that he would serve without an ex-officio salary. The Court held that only in the event he was convicted of the offense of offering a bribe could he be declared to be ineligible to hold the office to which he had been elected.

In MeCrary on Elections, 4th Ed., p. 263, Sec. 345, we find the following statement:

'It may be stated as a well-settled proposition, that statutes and constitutional provisions making ineligible to office any persons who have been guilty of a crime or breach of trust, always presupposes that the fact of the commission of such a crime or breach of trust has been ascertained and adjudged by the judgment of a court of competent jurisdiction. Such a fact can only be established by trial and judgment in due course of law, in which the accused shall be entitled to a full and fair hearing.'

In support of this statement is cited, Cawley, v. People, 95 Ill. 249.

Again, in the same authority, in Sec. 122, starting at page 88, we find some very pertinent language. There the author was discussing the right of an election judge to deny a voter the right to vote because he was a deserter from the Army of the United States, where an act of Congress provided that such a deserter should...