Reeves v. State

• Decision Date: 20 December 1924
• Docket Number: (No. 4156.)
• Citation: 267 S.W. 666
• Parties: REEVES v. STATE ex rel. MASON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

267 S.W. 666

REEVES v. STATE ex rel. MASON et al.^*

(No. 4156.)

Supreme Court of Texas.

December 20, 1924.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Quo warranto by the State, on the relation of W. W. Mason and others, to remove John J. Reeves from the office of sheriff of Titus county. Defendant was removed, and on appeal the judgment of removal was by the Court of Civil Appeals affirmed (258 S. W. 577), and defendant brings error. Reversed and remanded.

I. M. Williams, J. F. Wilkinson, Hiram Brown, and J. A. Ward, all of Mt. Pleasant, for plaintiff in error.

J. H. Beavers, of Winnsboro, and T. C. Hutchings and Sam Williams, both of Mt. Pleasant, for defendants in error.

PIERSON, J.

John J. Reeves was elected sheriff of Titus county in November, 1920, and duly qualified for that office on December 1, 1920. He was elected to a second term in November, 1922, and duly qualified for that term on January 8, 1923. On June 20, 1923, this proceeding, in the nature of a quo warranto, was begun in the district court of Titus county, to remove from the office of sheriff the said John J. Reeves for official misconduct in office. The petition was drawn and filed in the name of the state of Texas by the district and county attorneys on the relation of W. W. Mason, W. P. Traylor, and 10 others, under title 98, c. 2, Revised Statutes. The petition was presented to Hon. R. T. Wilkinson, judge of the Seventy-Sixth judicial district in Titus county, Tex., under the provisions of Rev. St. art. 6044; whereupon he entered his order directing that citation and certified copy of the petition be served on the defendant John J. Reeves, and set the case down for hearing on June 29, 1923. He also entered an order suspending the defendant Reeves from the office of sheriff during the pendency of the proceeding. The defendant John J. Reeves was duly served with citation and copy of petition, and on June 27th filed an answer, consisting of demurrers and denials. The case came on for trial on June 29th, but by agreement was passed until July 2d, and again by agreement was passed to July 3d.

On this date the said John J. Reeves filed a motion in writing, calling attention to the fact that the district judge, Hon. R. T. Wilkinson, was related to W. P. Traylor, one of the relators plaintiff, within the third degree, and alleged that on account thereof the said judge was disqualified to try the case, and that all proceedings theretofore had were void and of no effect in law. The trial judge found it a fact that said W. P. Traylor being his second cousin, was related to him within the third degree. Thereupon Hon. T. C. Hutchings, district attorney, and Hon. Sam Williams, county attorney, asked and obtained permission of the court to file an amended petition in the case in the name of the state of Texas by themselves as relators and as representatives of the state of Texas, and praying that all the original relators be dismissed from the case. The trial judge granted this motion, and dismissed the prior relators, including W. P. Traylor, from the case, and said relators paid up all costs accrued to that time. The defendant John J. Reeves duly excepted to said action, and the case proceeded to trial without any additional order having been entered by the trial judge permitting the proceedings to be instituted and ordering service of new citation and certified copy upon defendant Reeves. Under the allegations the court admitted testimony as to acts of official misconduct occurring in the first term of office, as well as in the second term of office, of the defendant.

The defendant Reeves was duly convicted by the jury upon separate findings of acts of official misconduct in both terms of office, and judgment was entered permanently removing said Reeves from the office of sheriff of Titus county. This judgment was affirmed by the honorable Court of Civil Appeals for the Sixth Supreme Judicial District. The Court of Civil Appeals held that the state of Texas, only, is a party plaintiff in the cause and that relator Traylor and the other private relators, within the meaning of the law, could not be classed as parties to the cause, and that therefore the trial judge was not disqualified to hear the cause, but found further that if he was so disqualified on account of the relationship of W. P. Traylor, on account of his being named as a party and being liable for court costs, this objection was entirely removed by the subsequent proceedings in the cause, and that therefore the case properly proceeded to trial. It held further that John J. Reeves could not be ousted on testimony of acts committed in his first term of office, but inasmuch as the jury on separate findings found him guilty of official misconduct during both his first and second terms, the judgment of ouster could be sustained, and that the admission of testimony of acts committed in his first term was harmless and without injury to him, because of the fact that the jury found him guilty of acts committed during his second term.

The judgment will have to be reversed, first, because there was no valid order entered by the trial judge authorizing the service of citation and certified copy of the petition upon the defendant, and second, because of the admission in evidence of acts committed during his first term of office.

If no valid order authorizing the suit to be filed was entered by the trial judge, no further action in the case could be had. If W. P. Traylor was a party to the suit, such as would disqualify the trial judge to hear the case on account of his relationship to him, then the original and only order authorizing service of citation, etc., to be had upon the defendant would be void, and all subsequent action taken in the case would also be void under article 6044. This article reads as follows:

"After the filing of such petition, the person or persons so filing the same shall make a written application to the district judge for an order for a citation and a certified copy of the said petition to be served on the officer against whom the petition is filed, requiring him at a certain day named, which day shall be fixed by the judge, to appear and answer to the said petition; and until such order is granted and entered upon the minutes of the court (if application is made during term time) no action whatever shall be had thereon; and, if the judge shall refuse to issue the order so applied for, then the petition shall be dismissed at the cost of the relator, and no appeal or writ of error shall be allowed from such action of the judge."

If the judge was disqualified to try the case with W. P. Traylor as a party on account of his relationship, then he was disqualified to enter the order permitting the complaint to be filed and ordering citation and certified copy of petition to be served on the defendant, and also to enter the order dismissing Traylor and the other relators from the suit and adjudging costs against them. If this be true, there was no case pending against John J. Reeves, no valid order ever having been entered as required by article 6044, and all the proceedings in the case were void. This article is mandatory and is clear in its provisions. The Legislature fixed the public policy of the state in this regard that a public officer should not be disturbed in the discharge of his duties, and no suit to oust him from office for official misconduct could be filed and prosecuted, unless such proceedings are begun with the express consent of the district judge. We have concluded that W. P. Traylor was such a party to the suit as to disqualify the trial judge from taking any action whatever in the case.

Article 6041 provides that the proceedings "may be commenced * * * by first filing a petition * * * by a citizen" who has resided for six months in the county, and who is not himself under indictment. Article 6042 requires that the...