In re Bazan

• Decision Date: 28 March 2008
• Docket Number: No. 06-0952.,06-0952.
• Citation: 251 S.W.3d 39
• Parties: In re Eduardo "WALO" Gracia BAZAN.
• Court: Texas Supreme Court

251 S.W.3d 39

In re Eduardo "WALO" Gracia BAZAN.

No. 06-0952.

Supreme Court of Texas.

Argued September 26, 2007.

Decided March 28, 2008.

Rehearing Denied May 16, 2008.

Kelly K. McKinnis, Adolfo "Al" Alvarez, Law Office of Adolfo Alvarez, McAllen, TX, for Relator.

Andrew L. Almaguer, Hidalgo County District Attorney's Office, Rene Guerra, Criminal District Atty., Cheryl Hole, Office of Criminal District Atty., Edinburg, TX, for Real Party In Interest.

Justice MEDINA delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice O'NEILL, Justice WAINWRIGHT, Justice BRISTER, Justice GREEN, and Justice JOHNSON joined.

In this original mandamus proceeding, we must decide whether Chapter 87 of the Local Government Code forbids a district court from removing a county officer, who has been convicted of a felony, when the conviction is based on acts that occurred before the officer's election. The question arises because one section in Chapter 87 provides for the officer's immediate removal upon conviction, while another seemingly prohibits removal for acts that predate an election.

We construed this statute in Talamantez v. Strauss, 774 S.W.2d 661 (Tex.1989) (per curiam), concluding that a county officer could not be removed from office for acts predating the officer's election. Although not mentioned in our per curiam opinion, the conviction in Talamantez involved a third degree felony similar to the conviction in this case and thus supports the relator's present claim. Because we conclude that Talamantez was wrongly decided, however, we overrule that decision and deny the present petition for writ of mandamus.

I

In this case, Hidalgo County Constable Eduardo "Walo" Gracia Bazan was convicted of a third degree felony for theft of property by a public servant, sentenced to seven years probation, and fined $3,000.00. See TEX. PENAL CODE § 31.03(f). In such situations, the Local Government Code provides for the immediate removal of the county officer upon conviction. TEX. LOCAL GOV'T CODE § 87.031.¹ If the officer appeals the conviction, which Bazan has done, the removal order is superseded, unless the trial court determines that the public interest requires the officer's suspension during the appeal. Id. § 87.032.² In this instance, the trial court ordered Bazan's suspension during his appeal.

Bazan sought mandamus relief in the court of appeals, complaining that the trial court's order was contrary to Talamantez. As in Talamantez, Bazan's felony conviction is based on acts that predate his election. Bazan contends that he cannot be removed for these acts because Local Government Code section 87.001 prohibits the removal of a county officer "for an act the officer committed before election to office." Id. § 87.001. The court of appeals nevertheless denied relief, and Bazan filed the present petition, repeating his arguments under Talamantez.

II

We had an opportunity to reconsider Talamantez shortly after our decision when another court of appeals refused to reinstate a county officer under similar circumstances. Minton v. Perez, 783 S.W.2d 803 (Tex.App.-San Antonio 1990, orig. proceeding). The Minton court was unsure from Talamantez's cursory analysis how section 87.001 was to be reconciled with the constitutional provision disqualifying persons convicted of high crimes from holding public office. See id. at 805 ("to the extent that section 87.001 conflicts with article XVI, section 2, the constitution must prevail"). The court speculated that perhaps some undisclosed fact distinguished Talamantez from its case. Id. We heard oral argument in a subsequent mandamus proceeding involving the same parties, but dismissed the petition as moot after Minton's successful criminal appeal resulted in his reinstatement. Minton v. Perez, 841 S.W.2d 854, 855 (Tex.1992). As in Minton, the Hidalgo County Criminal District Attorney, who is the real-party-in-interest to this proceeding, asks that we reexamine Talamantez in light of article XVI, section 2.

This constitutional provision states that: "Laws shall be made to exclude from office . . . [persons] who have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes." TEX. CONST. art. XVI, § 2. An individual convicted of a felony is thus ineligible to hold public office whether the conviction comes before or after the individual's election to office. See id.; TEX. ELEC.CODE § 141.001(4) (individual convicted of a felony ineligible to hold public office); TEX. LOCAL GOV'T CODE § 87.031 (felony conviction operates as an immediate removal from office); Op. Tex. Att'y Gen. No. H-20 (1973) ("The term `other high crimes' includes any offense of the same degree or grade as those specifically enumerated, namely felonies."). Section 87.001 of the Local Government Code, on the other hand, broadly states that an officer may not be removed from office for acts committed before the officer's election.

This section expresses what is sometimes called "the forgiveness doctrine," the idea being that pre-election conduct does not disqualify one from holding office the same way post-election conduct does. The doctrine's rationale is that the public has the authority "to forgive the misconduct of an elected official" following a campaign in which all the facts would presumably become known. In re Brown, 512 S.W.2d 317, 321 (Tex.1974). The public's power to forgive, however, is not without limits. It does not extend, for example, to felony convictions because a convicted felon is not qualified to hold public office, with or without the public's consent. TEX. ELEC. CODE § 141.001; Hayes v. Harris County Democratic Executive Committee, 563 S.W.2d 884, 885 (Tex.Civ.App.-Houston [1st Dist.] 1978, no writ). Thus, when the acts in question are themselves disqualifying under the constitution, they cannot be forgiven by the electorate. In re Bates, 555 S.W.2d 420, 428 (Tex.1977); In re Laughlin, 153 Tex. 183, 265 S.W.2d 805, 808 (1954); see also McInnis v. State, 603 S.W.2d 179, 180 n. 2 (Tex.1980).

Talamantez is not grounded on the forgiveness doctrine, but rather on the notion that section 87.001 is a general limitation on a court's authority to remove an officer under Chapter 87 of the Local Government Code. In expressing that limitation, however, Talamantez failed to consider the nature of the officer's prior acts or the nature of the proceeding resulting in the officer's removal. These considerations are important because a county officer may be removed for different types of misconduct that normally dictate the method of removal. Chapter 87 recognizes this by distinguishing between civil and criminal removal proceedings. The key to understanding the limitation expressed in section 87.001 lies in this distinction.

Chapter 87 explains civil prosecutions in subchapter B.³ TEX. LOCAL GOV'T CODE §§ 87.011-87.019. Under this subchapter, a county officer may be removed for a number of reasons that are not necessarily criminal, such as incompetency, official misconduct, intoxication, or the failure to execute a bond. Id. §§ 87.013-.014. Subchapter B details who may initiate the proceeding, the requisites of the petition and citation, the conduct of the trial, appeal, and other matters. Id. §§ 87.011-87.019. Unlike a criminal trial, the burden is proof by a preponderance of the evidence. See Huntress v. State, 88 S.W.2d 636, 643-44 (Tex.Civ.App.-San Antonio 1935, no writ) (civil removal proceeding not dependent on proof of criminal charges); cf. In re Brown, 512 S.W.2d at 319-20 (concerning removal of a district judge).

Subchapter C, on the other hand, connects its removal proceeding directly to the criminal prosecution. TEX. LOCAL GOV'T CODE §§ 87.031-.032. It does not incorporate subchapter B's procedural detail but rather simply directs the criminal court to include an order removing the county officer from office in the event of conviction. Id. § 87.031. Removal in this instance depends on proof beyond a reasonable doubt. See TEX. PENAL CODE § 2.01 ("no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt").

Section 87.001 is the only provision in subchapter A, the subchapter reserved for provisions of general applicability. Again, it provides that "[a]n officer may not be removed under this chapter for an act the officer committed before election to office." Id. § 87.001. Talamantez applied section 87.001 to a criminal removal proceeding, probably because of the provision's purported general application, but that was a mistake. The history of this section reveals that the Legislature intended it only as a limitation on a civil removal proceeding under subchapter B; it is not a limitation on the removal of a county officer incident to a criminal prosecution. To confirm this intent, we trace the statute back to its origin.

III

The removal provisions at issue were first enacted in 1879, only three years after the adoption of the current constitution. In that year, the Sixteenth Legislature adopted title 66, chapter 2 of the Revised Code providing for the "Removal of County and Certain District Officers."⁴ The removal provisions in the Local Government Code are substantively the same as this original legislation, but their organization has been changed. While the current statute begins with section 87.001's limitation for pre-election acts, the 1879 statute began with the two provisions relevant to criminal prosecution. TEX.REV.CIV. STAT. arts. 3388-3389 (1879). These provisions continue today as subchapter C, sections 87.031 and 87.032 of the Local Government Code, but have been moved from the statute's beginning.

After the two criminal provisions, the 1879 statute shifted to the civil proceeding, listing the grounds for such removal as incompetency, official misconduct, and drunkenness. Id. art. 3390. Two pages of definitions and procedures followed, most of which are...