Minton v. Perez, 04-89-00523-CV

• Decision Date: 17 January 1990
• Docket Number: No. 04-89-00523-CV,04-89-00523-CV
• Citation: 783 S.W.2d 803
• Parties: Luis S. MINTON, Relator, v. Honorable Rey PEREZ, Judge of the 293rd District Court of Maverick County, Respondent.
• Court: Texas Court of Appeals

Page 803

783 S.W.2d 803

Luis S. MINTON, Relator, v. Honorable Rey PEREZ, Judge of the 293rd District Court of

Maverick County, Respondent.

No. 04-89-00523-CV.

Court of Appeals of Texas,

San Antonio.

Jan. 17, 1990.

Nancy B. Barohn, San Antonio, for relator.

Rogelio Munoz, Asst. Dist. Atty., Uvalde, Alberto M. Ramon, Eagle Pass, Tim Cole, General Counsel, Austin, for respondent.

Before CADENA, C.J., and PEEPLES and BIERY, JJ.

OPINION

PER CURIAM.

This is an original mandamus proceeding. Relator Luis Minton, the duly elected County Commissioner of Precinct 4 in Maverick County, was removed from that office by order entered September 9, 1988, by Honorable Rey Perez, Judge of the 293rd Judicial District Court of Maverick County, respondent herein, pursuant to relator's criminal conviction for conspiracy to commit bribery. The acts for which relator was convicted occurred between January and July 1986, at a time when relator was already serving a term as county commissioner. He was re-elected to that office in November, 1986, and was sworn in on January 1, 1987. In January 1988, relator was indicted for the offense of conspiracy to commit bribery and was convicted in July 1988 by a jury in a trial transferred to Webb County. Relator seeks reinstatement to his former position, as well as all emoluments of that office accrued during the period of his removal.

Relator urges that the recent supreme court decision in Talamantez v. Strauss, 774 S.W.2d 661 (Tex.1989), is dispositive of his contention that respondent had no authority to remove him from office. In Talamantez the Supreme Court of Texas sought to reconcile the provisions of sections 87.001 and 87.031 of the Local Government Code. The Court's reconciling of these two provisions in its two-paragraph per curiam opinion followed a literal reading of the former section and disregarded the latter section in its entirety. Section 87.001 provides:

An officer may not be removed under this chapter for an act the officer committed before election to office.

TEX.LOCAL GOV'T CODE ANN. § 87.001 (Vernon 1988). Section 87.031 of the Code provides:

(a) The conviction of a county officer by a petit jury for any felony or for a misdemeanor involving official misconduct operates as an immediate removal from office of that officer.

(b) The court rendering judgment in such a case shall include an order removing the officer in the judgment.

TEX.LOCAL GOV'T CODE ANN. § 87.031 (Vernon 1988) (emphasis added). In holding that all the acts for which Talamantez (a county commissioner for Wilson County) was convicted were committed prior to his re-election, and finding that he could not be removed from office based on those acts, the supreme court nevertheless declined to explicitly overrule or otherwise qualify, or even to cite or discuss, longstanding precedent under the Texas Constitution and the predecessor statute to LOCAL GOV'T CODE § 87.031, which would mandate immediate removal of relator from office.

In Sullivan v. State, 572 S.W.2d 778 (Tex.Civ.App.--El Paso 1978, writ ref'd n.r.e.) and Trevino v. Barrera, 536 S.W.2d 75 (Tex.Civ.App.--San Antonio 1976, no writ) the courts held that former article 5968, TEX.REV.CIV.STAT.ANN., the predecessor statute to section 87.031, mandated automatic and immediate removal from the mere fact of conviction of a criminal offense. In other words, section 87.031 of the Local Government Code as well as article 5968, its predecessor, make the date of occurrence of the acts forming the basis of conviction irrelevant and immaterial. The issue becomes whether the officer is holding office at the time of conviction. If so, he is automatically removed. Section 87.031 is authorized under article XVI, section 2 of the Texas Constitution.

In In re Laughlin, 153 Tex. 183, 265 S.W.2d 805 (1954), the Supreme Court of Texas, in an original proceeding for removal of a district judge, refused to apply former article 5986, the statutory predecessor to section 87.001, and announced the "forgiveness doctrine." The court in Laughlin held:

Neither may removal be predicated upon acts antedating election not in themselves disqualifying under the Constitution and laws of the State, when such acts were a matter of public record or otherwise known to the electors and were sanctioned and approved or forgiven by them at election.

Id. 265 S.W.2d at 808. Implicit in the Laughlin rationale is the premise that acts which were "disqualifying under the Constitution and laws of this State" are not forgivable and would not give rise to the "forgiveness doctrine." See Matter of Bates, 555 S.W.2d 420, 428 (Tex.1977). In Bates, the supreme court distinguished forgivable acts, which would not disqualify an officeholder from holding office under the laws and constitution of Texas, from acts which would not only result in removal but also bar the official from holding the office in the first place.

To interpret section 87.001 in the manner relator advocates so as to override section 87.031 would give substantive effect to a recodification of prior law. When a conflict exists between a former statute and a revision made pursuant to the legislature's directive to the Texas Legislative Council to make a nonsubstantive revision of the statutory law, the former statute will control. Johnson v. City of Fort Worth, 774 S.W.2d 653, 654-55 (Tex.1989). With the recodification of the Local Government Code, the "forgiveness doctrine," derived entirely from article 5986, was recodified in this section, which applies to county officers. The change in location from article 5986 to section 87.001 did not and could not affect the substantive meaning of the statute. In fact the Legislative Council responsible for the codification process lacks the authority to change the substance of existing law. It may merely rearrange statutes into a more easily accessible format, which is the stated purpose of the recodification scheme, but without making substantive change in the statutes. See TEX.GOV'T CODE ANN. § 323.007 (Vernon 1989). Further, the Code Construction Act prohibits the Legislative Council...