Lipscomb v. Randall

• Decision Date: 07 January 1999
• Docket Number: No. 2-98-084-CV,2-98-084-CV
• Parties: Larry LIPSCOMB, Patricia Moore, Robert Peffer, Ted Reeves, William Carr, and Roy Marshall, Appellants, v. Rick RANDALL, Appellee.
• Court: Texas Court of Appeals

Page 601

985 S.W.2d 601

Larry LIPSCOMB, Patricia Moore, Robert Peffer, Ted Reeves William Carr, and Roy Marshall, Appellants, v. Rick RANDALL, Appellee.

No. 2-98-084-CV

Court of Appeals of Texas Fort Worth.

Jan. 7, 1999.

Rehearing Overruled March 18, 1999.

Taylor, Olson, Adkins, Sralla & Elam, L.L.P., E. Allen Taylor, Jr., Tim G.Sralla, Debra Drayovitch, Fort Worth, Griffin, Whitten & Jones, Mike Griffin, Denton, for appellants.

William Trantham, Farmers Branch, for appellee.

Before the court en banc.

OPINION

CAYCE, Chief Justice.

The council members of The Town of Flower Mound, Texas, appeal the district court's writ of mandamus ¹ reinstating a council member, Rick Randall, who automatically forfeited his office under the town charter when he was convicted of crimes of moral turpitude in municipal court. We reverse and render judgment vacating the trial court's judgment.

BACKGROUND

The Town of Flower Mound is a home-rule city governed by its town charter. Section 3.02 of Flower Mound's Home Rule Charter provides that "a Councilperson shall forfeit his office if he ... is convicted of a crime involving moral turpitude." Section 3.03 of the charter further provides that the town council shall "be judge of the election and qualifications of its own members, and other elected officials of the Town."

On September 27, 1997, Randall, a member of the town council, was arrested for assaulting his wife. Consequently, two Class C misdemeanor complaints, one for assault by contact and the other for assault by threat, ² were filed against Randall in Flower Mound Municipal Court.

The regular municipal judge, Ann Anderson, recused herself from hearing Randall's cases. Section 4.04.3 of the town charter provides that "[i]n case of the disability or absence of the Judge of the Municipal Court, the Council shall appoint a qualified person ... to act in his place." Because of Judge Anderson's recusal, the town council appointed Marion Mosely as a special visiting municipal court judge to preside over Randall's assault cases.

On December 22, 1997, Randall's cases were tried in municipal court to a jury. The jury found Randall guilty of assaulting his wife in both cases and Judge Mosely entered judgments of conviction. ³ Randall then appealed the convictions to Denton County Criminal Court No. One. ⁴ On July 23, 1998, in a trial de novo, he was again convicted by a jury of both crimes.

The minutes of the January 5, 1998 town council meeting reflect that upon observing that Randall had been convicted in municipal court of two crimes involving moral turpitude, the council found that Randall had forfeited his office. In accordance with the charter's requirements, the council then appointed Roy Marshall "to fill the vacancy created by Mr. Randall's conviction."

Randall sought a writ of mandamus from the 362 nd District Court ordering the town council to allow Randall to continue to vote and perform all of the functions of a council member. Randall also sought injunctive relief enjoining Marshall from participating in the council's business in Randall's place. The 362 nd District Court granted mandamus relief, ordering that Randall "be counted among the quorum of council members present at any council meeting he shall attend and be allowed to vote on all resolutions, ordinances or business of the Town Council, and to have such vote by ayes and nays counted in the official voting record...." The members of the town council, appearing individually, ⁵ appeal from this writ of mandamus.

ISSUES ON APPEAL

The town council asserts that the charter provision at issue authorizes automatic forfeiture of office upon conviction of a crime involving moral turpitude, and that the trial court's writ of mandamus erroneously interferes with the home-rule city's authority to provide for removal of its public officers. In response, Randall asserts three grounds in support of the writ permitting him to remain on the town council: (1) the municipal court convictions are void because the appointment by the council of the temporary municipal judge was in violation of the town's charter requirements; (2) the municipal court convictions do not support automatic forfeiture of office because Randall was entitled to a trial de novo in county court; and (3) Randall's office is not forfeited unless and until his convictions become final and unappealable. During oral argument, Randall also challenged his removal from office on the ground that his convictions were not for crimes involving moral turpitude.

DISCUSSION

Standard of Review

Texas has long adhered to the rule that courts of equity will not interfere to prevent removal of a person from office if the power of removal is given by law. See City of Alamo v. Garcia, 960 S.W.2d 221, 223 (Tex.App.--Corpus Christi 1997, no writ); Huntress v. McGrath, 946 S.W.2d 480, 484-85 (Tex.App.--Fort Worth 1997, orig. proceeding); Crouch v. Stanley, 348 S.W.2d 543, 545 (Tex.Civ.App.--Fort Worth 1961, no writ); Miles v. Logan, 265 S.W. 421, 424 (Tex.Civ.App.--Beaumont 1924, no writ); Callaghan v. Tobin, 40 Tex.Civ.App. 441, 90 S.W. 328, 330 (1905, writ ref'd); Riggins v. Thompson, 30 Tex.Civ.App. 242, 70 S.W. 578, 578 (1902, writ ref'd). When a home-rule charter vests power in a town council, the trial court has no right to substitute its judgment and discretion for the judgment and discretion of the council, and may only determine whether the council acted illegally, unreasonably, or arbitrarily. See Barrington v. Cokinos, 161 Tex. 136, 338 S.W.2d 133, 142 (1960); Riggins v. City of Waco, 100 Tex. 32, 93 S.W. 426, 427 (1906); see generally Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033, 1034 (1934); Barnett v. City of Plainview, 848 S.W.2d 334, 340 (Tex.App.--Amarillo 1993, no writ). This determination presents a question of law. See City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153, 157 (1960).

Authority of Flower Mound as a Home-Rule City to Provide for Automatic Forfeiture of Office Upon Conviction

As a home-rule city, Flower Mound has the full power of local self-government:

It was the purpose of the Home-Rule Amendment [to the Texas Constitution] ... to bestow upon accepting cities and towns of more than 5000 population full power of self-government, that is, full authority to do anything the legislature could theretofore have authorized them to do. The result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers.

Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282, 286 (Tex.1948) (citing TEX. CONST. art. XI, § 5); see also Dallas Merchant's & Concessionaire's Assoc. v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex.1993). The legislature has expressly authorized home-rule cities to "prescribe the qualifications, duties, and tenure of office for officers." TEX. LOC. GOV'T CODE ANN. § 26.041 (Vernon 1988); City of San Benito v. Cervantes, 595 S.W.2d 917, 918 (Tex.Civ.App.--Eastland 1980, writ ref'd n.r.e.). Beyond that authorization, the legislature has remained silent on the issues of removal from or forfeiture of office in home-rule cities. ⁶ Thus, it is generally recognized that the authority for a home-rule city council to remove one of its members must be found in the city's charter. See Garza v. Garcia, 785 S.W.2d 421, 422 (Tex.App.--Corpus Christi 1990, writ denied); City of San Benito, 595 S.W.2d at 918; 22 TEXAS PRACTICE, Municipal Law and Practice, § 99 (Supp.1998).

Flower Mound's charter provides that "[a] Councilperson shall forfeit his office if he ... [i]s convicted of a crime involving moral turpitude." It is undisputed that this provision is self-enacting. Thus, if applicable to Randall, the charter provision makes the forfeiture of office automatic upon conviction. See City of Alamo v. Garcia, 960 S.W.2d 221, 222 (Tex.App.--Corpus Christi 1997, no writ) (automatic forfeiture based on violation of absenteeism requirement); Harrison v. Chesshir, 316 S.W.2d 909, 914 (Tex.Civ.App.--Amarillo 1958) (automatic forfeiture when officeholder moved out of county), rev'd on other grounds, 159 Tex. 359, 320 S.W.2d 814 (1959).

Randall was Convicted of Crimes Involving Moral Turpitude

Randall was convicted in municipal court of assault by contact and assault by threat, both of which are class C misdemeanors. See TEX. PEN.CODE ANN. § 22.01(a)(2)-(3), (c). At oral argument, Randall's counsel opined that Randall's crimes were not serious enough to constitute crimes of moral turpitude. We disagree. "[M]isdemeanor assault, as defined by Penal Code § 22.01, by a man against a woman is a crime involving moral turpitude." Hardeman v. State, 868 S.W.2d 404, 405 (Tex.App.--Austin 1993), dism'd, 891 S.W.2d 960 (Tex.Crim.App.1995); see also Ludwig v. State, 969 S.W.2d 22, 30 (Tex.App.--Fort Worth 1998, pet. ref'd).

The Visiting Municipal Court Judge was Appointed in Accordance with the Town Charter

Randall next argues that the municipal court convictions are void and, therefore, do not support automatic forfeiture of his office, because the town council allegedly violated its charter requirement when it appointed Judge Mosely to serve as a "special visiting municipal court judge." The Texas Government Code authorizes home-rule cities to appoint "alternate" or "temporary" municipal judges in accordance with the city's charter:

The judge and alternate judges of the municipal court in a home-rule city are selected under the municipality's charter provisions relating to the election or appointment of judges. The judge shall be known as the "judge of the municipal court" unless the municipality by charter provides for another title.

TEX. GOV'T CODE ANN. § 29.004(a) (Vernon 1988) (emphasis added). Section 29.007 of the code specifically provides for the appointment of "temporary" judges:

The municipality may provide by charter or by ordinance for the appointment of one or more temporary judges to...