Meyer v. Tunks

• Decision Date: 03 October 1962
• Docket Number: No. A-9143,A-9143
• Citation: 360 S.W.2d 518
• Parties: Charles H. MEYER, Relator, v. The Honorable Bert TUNKS et al., Respondents.
• Court: Texas Supreme Court

Page 518

360 S.W.2d 518

Charles H. MEYER, Relator, v. The Honorable Bert TUNKS et al., Respondents.

No. A-9143.

Supreme Court of Texas.

Oct. 3, 1962.

Gilbert T. Adams, Beaumont, for relator.

W. C. Luindsey, Dist. Atty., W. G. Walley, Jr., Beaumont, Will Wilson, Atty. Gen., and Norman V. Suarez, Asst., Austin, for respondents.

CULVER, Justice.

In Jefferson County there is now pending a suit brought by the State of Texas on relation of certain citizens for the removal of Charles H. Meyer from the office of Sheriff of that county. The District Judge in that case overruled the motion filed in behalf of the defendant, Meyer, to quash the State's application and notice to take the defendant's oral deposition, without prejudice to his right to assert his constitutional privilege against answering any question which might tend to incriminate him.

This is an original petition for mandamus to require the District Judge to revoke his order overruling that motion.

The grounds alleged in the petition for the removal of this officer are: (1) that he accepted the sum of $200.00 on two separate occasions from the same person with the understanding that he would permit that person to operate gaming devices; (2) that Meyer was guilty of official misconduct in respect to the use of and duties assigned to prisoners entrusted to his care, appropriating their labor to private use, and permitting others to be at large and to escape; (3) that he knowingly permitted the open and notorious operation of public houses of prostitution and places to which people commonly resort for the purpose of gambling. At all times pertinent herein Meyer has been under five indictments, the first two charging bribery and the last three charging false statements made in his report of election campaign expenses and contributions.

Relator first contends that the notice of intention to take his oral depoition should be quashed because it violates his rights under Art. 3, Vernon's Ann.Code of Criminal Procedure, and Art. 1, § 10 of the State Constitution, Vernon's Ann.St. in that it is tantamount to requiring him to take the stand and testify in a criminal action against him since this removal action charges him with the willful commission of penal offenses. Further he represents that the attempt to take his deposition is in bad faith and for the purpose of obtaining evidence to be used in the criminal cases now pending against him.

He relies heavily on State ex rel. v. Alcorn, 78 Tex. 387, 14 S.W. 663, 665, which terms the removal statute as penal in character 'and must be construed as though it were one defining a crime and prescribing its punishment.' We quoted that statement with approval in State ex rel. Edwards v. Reyna, 160 Tex. 404, 333 S.W.2d 832, 835. Aside from any implications that might be drawn from this statement the court is saying only that to justify removal from office the allegations of the petition shall be specific and certain and the offical misconduct must be willful or in other words with evil intent or without reasonable grounds to believe the act lawful. But all of this is no more than is required by Arts. 5973 and 5977, Vernon's Civil Statutes.

County officials may be removed from office for incompetency or for official misconduct or for becoming intoxicated. Art. 5970. The State Constitution stipulates that: 'The Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution.' Art. 15, § 7. County officials fall into this category. Accordingly the Legislature has enacted the rules governing the trial and removal of those officials. ¹ The action may be brought by an individual citizen and must be conducted in the name of 'The State of Texas', upon the relation of that person. The verified petition is to be filed in the district court and shall set forth plainly the grounds of removal. The defendant is guaranteed the right of trial by jury. Appeals are given precedence over the ordinary business of the court. Art. 5981 provides that 'the trial and all proceedings connected therewith (removal actions) shall be conducted as far as it is possible in accordance with the rules and practice of the court in other civil cases.' The Legislature has thus in effect denominated the action as a civil proceeding. It is one triable in a civil court. An appeal lies to the Court of Civil Appeals. The prosecution has the right to appeal from an adverse judgment. The degree of proof necessary for a finding of a verdict of guilty or judgment of removal is by the preponderance of the evidence rather than 'beyond a reasonable doubt'. No question of former jeopardy is involved. The officer may be prosecuted criminally on the same charges either before or after the removal proceedings.

While the removal petition will ordinarily charge the officer with the violation of a criminal statute, yet the character of the action is to be determined by the object sought to be accomplished and the nature of the judgment to be entered. It reasonably appears from the constitutional and statutory provisions authorizing this proceeding that the object is not to punish the officer for his derelictions or for the violation of a criminal statute but to protect the public in removing from office by speedy and adequate means those who have been faithless and corrupt and have violated their trust. The law imposes no other penalty. It has been said that an officer has a property right in the office but that applies merely to the privilege of asserting his right to gain and hold the office in an election contest and in similar political affairs. The office belongs to the people and is given to him temporarily in trust. Even so an action to deprive him of this or any other property right would be essentially a civil action.

In McDaniel v. State, (1928) Tex.Civ.App., 9 S.W.2d 478, 481, wr. ref., the court, in pointing out that a removal action is essentially a civil suit altough the result may have a punitive effect, says:

'* * * Its determination constitutes no bar to the subsequent indictment and prosecution of the defendant for any criminal offense he may have committed in the misconduct with which he is here charged. While his removal from office may cause him an injury, the infliction of that injury is not the primary object of the proceeding. The principal purpose in such proceeding is to relieve the state of an unfit public official. If there were any informality in the manner in which the court in this instance presented the issues to the jury, the defect was not of a fundamental character, and was waived by the failure of the appellant to object at the proper time.'

In so far as the terminology applied to this character of proceeding is concerned, the courts of other jurisdictions are not in harmony, some classifying it as a civil action, others, as quasi criminal, and still others, as criminal. Actually the terminology is not altogether important or controlling for the results reached in ruling on the various questions are more uniform than the terminology used would seem to indicate. California in Thurston v. Clark, 107 Cal. 285, 40 P. 435, viewed the matter as equivalent to a criminal prosecution. In that case the removal action was said to be of such a criminal nature that the defendant officer was to be shielded from becoming an enforced witness against himself by reason of constitutional provisions both national and state. On the other hand in Cline v. Superior Court, 184 Cal. 331, 193 P. 929, the same court determined that in such cases the constitutional safeguards do not forbid the denial of a jury trial to the officer and that pronouncement is expressly made regardless of the holding in Thurston v. Clark and in other earlier cases that the proceeding is in effect a criminal prosecution. In fact the general rule seems to be that a public official has no constitutional right to a jury trial in a proceeding to remove him from office. See Gay v. District Court, 41 Nev. 330, 171 P. 156, 3 A.L.R. 224 and other cases annotated in 3 A.L.R. 1089. With that premise in mind it is hardly logical to contend that in a removal action the defendant officer cannot be called to the witness chair since the right of one charged with a criminal offense to a jury trial is basic in all jurisdictions.

In addition to California, Idaho and Montana are said to take the view that a removal action is criminal in nature while other Western states, namely, Nevada, New Mexico, North Dakota, Oklahoma and Utah consider the matter as a civil action. See 81 A.L.R. 1089.

In Skeen v. Craig (1906) 31 Utah 20, 86 P. 487, the court aligns itself with what it terms the great weight of authority and the better reasoned cases in expressly holding that such actions are civil. State v. Borstad (1914) 27 N.D. 533, 147 N.W. 380, held that the trial court did not err in permitting the...