Huntress v. State

• Decision Date: 20 November 1935
• Docket Number: No. 9855.,9855.
• Citation: 88 S.W.2d 636
• Parties: HUNTRESS, County Clerk, v. STATE ex rel. TODD et al.
• Court: Texas Court of Appeals

88 S.W.2d 636

HUNTRESS, County Clerk, v. STATE ex rel. TODD et al.

No. 9855.

Court of Civil Appeals of Texas. San Antonio.

November 20, 1935.

Rehearing Denied December 4, 1935.

Appeal from District Court, Bexar County; F. Stevens, Judge.

Proceedings by the State, by John R. Shook, Criminal District Attorney of Bexar County, on the relation of Dr. James M. Todd and others, against George W. Huntress, Jr., County Clerk. From a decree removing defendant from office, defendant appeals.

Affirmed.

Forrest Bennett, Leroy G. Denman, D. A. McAskill, Tom J. Newton, and Van Henry Archer, all of San Antonio, for appellant.

John R. Shook, Paul J. Kilday, L. J. Gittinger, and Leroy Jeffers, all of San Antonio, for appellees.

BOBBITT, Justice.

The respondent herein, George W. Huntress, Jr., prosecutes this appeal from an order and decree of the Seventy-Third district court of Bexar county, entered on the 1st day of May, 1935, adjudging him guilty of official misconduct and incompetency in public office, removing him from the office of county clerk of Bexar county, and declaring the office vacant. Such order and decree also continued in effect, pending the appeal of the case, an order of the trial court as entered in this cause on the 11th day of May, 1935, temporarily suspending the respondent from office and appointing B. F. Ladon, to discharge the duties of the office of county clerk of said county, for the time being and pending the final disposition of the case.

The proceedings herein against respondent were instituted by the state of Texas, acting through her criminal district attorney of Bexar county, John R. Shook, upon the relation of Dr. James M. Todd and five other citizens of Bexar county, under and pursuant to the provisions of title 100 of the Revised Civil Statutes of Texas (article 5961 et seq.), relating to the removal of officers from public office.

The parties, for convenience, will be designated as plaintiff and defendant, as in the trial court.

On February 4, 1935, the plaintiff, upon the relation of six citizens of Bexar county, Tex., filed with the court an application for permission to file a petition for the removal of defendant from the office of county clerk. On the same day the judge of said court granted permission to file such petition. Thereupon the original petition, duly signed and sworn to by the relators, was filed and docketed. On the same day application was made by plaintiff for an order directing the issuance of citation to the defendant; such application was granted, and the hearing of said petition was set for February 11, 1935. Citation was duly issued and served upon defendant. On such 11th day of February, the defendant having appeared and filed his answer, the court entered an order suspending the defendant from the office of county clerk, pending a trial of the case, and appointed B. F. Ladon as the person, for the time being, to discharge the duties of the office.

On the 22d day of April, 1935, having secured leave of the court so to do, plaintiff filed its "First Amended Original Petition"; defendant having appeared and answered in the case. On such date the defendant objected to proceeding to trial upon said amended petition on the ground, or contention, that he was not in court; that the court had no jurisdiction over him as to the new matters in said petition. The defendant then expressly informed the court, however, that he was not taken by surprise; that he was not asking for a continuance; that he was ready to and he did then file an answer to such amended petition. Thereupon the court informed counsel for the defendant that if the defendant was not ready on any of the matters set up in the amended petition, the court would entertain a motion for a continuance. The defendant then refused to present such motion and the case proceeded to trial.

The amended petition of plaintiff contained twenty-seven alleged "causes" for the removal of the defendant; each thereof being separately presented in the petition, and each being captioned: "Cause No. ___." The said causes alleged official misconduct, incompetency, and gross carelessness on the part of the defendant, and all were alleged to have occurred subsequent to November 6, 1934, the date upon which defendant was last "elected" to his office. Some of such causes alleged transactions or conduct which continued from November 6, through and after January 1, 1935, and others alleged transactions and conduct after January 1st. The defendant presented numerous demurrers and exceptions to said amended petition. The effect of the action of the court upon these demurrers was to hold that the defendant could be removed from office only for acts committed by him subsequent to January 1, 1935, the date upon which he "qualified' for his office subsequent to his last election thereto. The rulings of the court also had the effect of holding that certain alleged causes contained in said amended petition did not constitute grounds for removal from office. After such rulings by the court, there remained in the petition eighteen of the original twenty-seven alleged causes. The plaintiff proceeded to trial upon said amended petition by striking therefrom those causes eliminated by the ruling of the court, and after interlining certain other causes and striking therefrom the portions eliminated by such rulings. The petition contained the eighteen alleged causes remaining after such rulings, numbered as they had been when the amended petition was originally filed.

We will hereinafter state the substance of each of the alleged causes for removal in connection with the issues submitted to and found by the jury.

In addition to the demurrers and exceptions above mentioned, the answer of the defendant, upon which the case was tried, consisted only of a general denial, and a special answer, which special answer alleged:

First. That the office of county clerk of Bexar county requires a great amount of detail work and employs over fifty people; that no one person can keep familiar with the details of the office, and keep within his mind an understanding or knowledge of the duties performed by such a large number of people; that such employees perform acts separate and apart from each other; and that no person can be familiar with the records of that office in detail.

Second. That the state of Texas and the counties therein containing more than 190,000 population, and which includes Bexar county, have realized the enormous work incident to the duties and responsibilities of the county clerk's office, and have caused to be passed laws relieving the county clerk of controlling as to the work of receiving, recording, and accounting for finances of the office and the control over the finances of the office, as shown by articles 1674, 1675, and article 1656a (Acts 1933, c. 98, § 1), under title 34, subd. 2, and other articles of the Revised Civil Statutes.

It was shown upon the trial that under the provisions of article 1656a (as the same existed prior to its amendment effective May 1, 1935 [Vernon's Ann.Civ.St. art 1656a]), giving the county auditor power (in his discretion) to adopt and enforce such regulations, not inconsistent with the Constitution and law, as he might deem essential to the speedy and proper collection and checking of, and accounting for, the revenues and fees belonging to the county, such auditor had in fact required that all funds collected be deposited in the county depository bank in the name of the county clerk in his official capacity; but that the county auditor had never in fact exercised the discretionary power given him by such article 1656a, and had not required that all of the fees and moneys therein referred to should be turned over to the county treasurer by the officer as collected and thereafter drawn out by checks upon the county treasurer, etc.

The case was tried before a jury; and, in accordance with the provisions of article 5978 of the Revised Civil Statutes, by appropriate instructions and proper charge applicable to the facts of the case, the jury was instructed to find from the evidence whether the causes of removal set forth in the petition were true in point of fact or not; and, there being more than one distinct cause of removal alleged, the jury was instructed to say, by their verdict, which cause or causes they found were sustained by the evidence before them and which were not sustained. The eighteen alleged causes for removal, which were submitted to the jury, were numbered as in the amended petition and were, in substance, as follows:

No. 1. That during January, 1935, until January 17th, the defendant did fail and neglect to perform any duty in connection with his office and failed to supervise any of the records, books, reports, or accounts of the office, and failed to discharge any duty in connection with the funds of the office. That by reason of his gross carelessness in that regard, funds of the office in the sum of $817.28 were misapplied. (This amount appeared in the petition as $1,032.02, but was changed by trial amendment to $817.28.)

No. 4. That during the month of January $817.28 was converted out of the funds of said office, and that such conversion was rendered possible by reason of the incompetency and gross carelessness of the defendant in handling the business and affairs of said office.

No. 5. That the defendant was incompetent and guilty of gross carelessness in the discharge of the duties of his office for the reason that during the period from January 1 to 17, 1935, he did fail to promptly post and enter, or cause the same to be done, in the books of said office, the items which should have been posted and entered therein, but did permit all of such items to remain unposted and unentered over a long period of time.

No. 6. That the defendant was incompetent and guilty of gross carelessness in the discharge of the duties of his office for the reason that during...