Schwenke v. State, 13-96-379-CV

• Decision Date: 26 November 1997
• Docket Number: No. 13-96-379-CV,13-96-379-CV
• Parties: Virgene SCHWENKE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 227

960 S.W.2d 227

Virgene SCHWENKE, Appellant, v. The STATE of Texas, Appellee.

No. 13-96-379-CV.

Court of Appeals of Texas,

Corpus Christi.

Nov. 26, 1997.

Nathan A. East, Portland, for appellant.

David Aken, Co. Atty., Sinton, for state.

Before DORSEY, YANEZ and RODRIGUEZ, JJ.

OPINION

DORSEY, Justice.

Virgene Schwenke, appellant, was removed from his elected office of constable for the sole reason that he failed to obtain certification as a law enforcement officer as required by section 415.053 of the Texas Government Code. He appeals the judgment removing him from office claiming the section is inapplicable to him, but if it is, it is unconstitutional. He also challenges the trial court's failure to submit his proposed question to the jury and exclusion of evidence. We affirm.

Appellant was elected Constable of Precinct 6, San Patricio County, in the general election of November, 1992, taking office January 1, 1993. During the next two years, Schwenke accomplished the training required by the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE). However, he did not pass all of the required tests and did not receive a license from the commission. On April 10, 1995, the State filed suit to remove him from office, alleging Schwenke had not obtained a license as a law enforcement officer from TCLEOSE and that such failure rendered him incompetent to hold his elected office. Section 415.053 of the Texas Government Code is the applicable paragraph the State relies on to remove appellant from office. It provides:

An officer, including a sheriff, elected under the Texas Constitution or a statute or appointed to fill a vacancy in an elective office must be licensed by the commission not later than two years after the date that the officer takes office. The commission shall establish requirements for licensing and for revocation, suspension, cancellation, or denial of a license of such an officer. It is incompetency and a ground for removal from office under Title 100, Revised Statutes, or any other removal statute if an officer to whom this section applies does not obtain the license by the required date or does not remain licensed.

Act of June 19, 1993, 73rd Leg., R.S., ch. 985, § 2, sec. 415.053, 1993 Tex. Gen. Laws 4261 (emphasis added).

I. APPLICABILITY OF THE STATUTE TO APPELLANT.

Appellant complains the State based its case against him on a government code provision that does not apply to him. He argues the Legislature did not grant authority to TCLEOSE over the licensing of constables. He claims the statute specifically exempts application of section 415.053 to constitutionally elected officers such as constables. Appellant points to what he describes as a conflict between sections 415.053 and 415.060 as proof of the legislature's intent to exclude constables from the dominion of TCLEOSE.

Constables are constitutional officers elected under the provisions of Article V, section 18 of the Texas Constitution. ¹ To remove a constable from office, the constitution provides: "... constables, and other county officers, may be removed by the Judges of the District Courts for incompetency, official misconduct, habitual drunkenness, or other causes defined by law, upon the cause therefor being set forth in writing and the finding of its truth by a jury." TEX. CONST. art. V, § 24 (emphasis added).

The State relies on section 415.053 of the government code to provide a statutory definition of incompetence. Schwenke, however, points to the predecessor of the current version of section 415.053, which is chapter 198 of the General and Special Laws of 1989. He claims that Act specifically exempts officers elected under the Texas Constitution, and that the exemption has not been repealed.

That chapter reads in its entirety ²:

CHAPTER 198

S.B. No. 691

AN ACT

relating to a requirement that certain persons serving in elective offices as peace officers be licensed by the Commission on Law Enforcement Officer Standards and Education.

Be it enacted by the Legislature of the State of Texas:

SECTION 1. Section 415.053, Government Code, is amended to read as follows:

Sec. 415.053. LICENSING OF CERTAIN LAW ENFORCEMENT OFFICERS ELECTED UNDER TEXAS CONSTITUTION OR STATUTE. An officer elected under the Texas Constitution or a statute or appointed to fill a vacancy in an elective office must be licensed by the commission not later than two years after the date that the officer takes office. The commission shall establish requirements for licensing[,] and [ for revocation, suspension, cancellation, or denial of a license[,] of such an officer. It is incompetency and a ground for removal from office under Title 100, Revised Statutes, or any other removal statute if an officer to whom this section applies does not obtain the license by the required date or does not remain licensed.

SECTION 2. This Act applies to officers, other than an officer elected under the Texas Constitution, who are elected reelected, or appointed on or after the effective date of this Act.

SECTION 3. The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended, and that this Act take effect and be in force from and after its passage, and it is so enacted.

Passed the Senate on April 6, 1989, by the following vote: Yeas 30, Nays 0; passed the House on May 2, 1989, by the following vote: Yeas 137, Nays 0.

Approved May 26, 1989.

Effective May 26, 1989.

Act of May 26, 1989, 71st Leg., R.S., ch. 198, §§ 1-3, 1989 Tex. Gen. Laws 846.

Appellant contends section 2 of the Act expressly exempts officers who are elected under the Texas Constitution, because it states the Act applies "to officers, other than an officer elected under the Texas Constitution." However, such a construction is directly contrary to the express language of the amendment of the government code stated in section 1, where an officer elected or appointed under the Texas Constitution is explicitly required to obtain a license by the commission.

We note at the outset that our primary concern when interpreting statutes is to comply with the intent of the legislature that passed them. Our first, best tool in ascertaining this intent is the language of the statute itself. Our quest can be guided, however, by the rules of statutory construction found in common law and as codified in the Texas Government Code chapters 311 and 312. When interpreting the intent and meaning of a statute, the court focuses on, and will follow, the plain language of the statute unless doing so leads to absurd and unintended consequences. Lundy v. State, 891 S.W.2d 727, 729 (Tex.App.--Houston [1st Dist.] 1994, no pet.). Words will be given their ordinary meanings unless otherwise defined in the statute. Dallas County v. Sweitzer, 881 S.W.2d 757, 763 (Tex.App.--Dallas 1994, writ denied). We must presume the entire statute is intended to be effective, and that a just and reasonable result is intended. Davis v. Zoning Bd. of Adjustment of La Porte, 853 S.W.2d 650, 652 (Tex.App.--Houston [14th Dist.] 1993), rev'd on other grounds, 865 S.W.2d 941 (1993). We further presume the legislature intended its act to be constitutional. Lo-Vaca Gathering Co. v. M-K-T R. Co., 476 S.W.2d 732, 739 (Tex.Civ.App.--Austin 1972, pet. ref'd n.r.e.). The court may consider legislative history as an indication of legislative intent. Collins v. Collins, 904 S.W.2d 792, 797 (Tex.App.--Houston [1st Dist.] 1995), writ denied per curiam, 923 S.W.2d 569 (1996).

Appellant's proposed construction, that section 2 provides a specific exemption for constitutionally elected officers, does not withstand analysis. Such a construction is directly contrary to the express language of section 1: "An officer elected under the Texas Constitution...." To explicitly include a class in section 1 and then to exempt it from coverage in the next paragraph is absurd. Appellant's interpretation overlooks that only section 1 amends section 415.053, while sections 2 and 3 of the amendatory act address the effective date of the amendment. We find it significant that section 1 is the only section of Senate Bill 691 addressing itself to section 415.053. Section 1 of the 1989 Act makes minor amendments to the existing law. Specifically, section 1 added officers elected under a statute or appointed to fill a vacancy in an elective office to the extant code provision governing constitutionally elected officers. No change regarding constitutionally elected officers was contemplated by the Act. The 1989 legislation, then, was not directed at changing the regulatory nature of TCLEOSE as related to constitutionally elected officers established by prior legislation. Before enactment of Senate Bill 691, TCLEOSE had been granted all authority necessary to regulate constables.

What, then, of section 2? Given that constitutionally elected officers were already governed by section 415.053 and the only changes contemplated by the 1989 amendment were to include statutorily elected officers and appointed officers to the sweep of TCLEOSE's governance, it is apparent the function of section 2 was to provide an effective date for application of the law to the newly regulated officers. Constitutionally elected officers, not being affected by the amendment, were specifically exempted from the date of its applicability in an attempt to avoid confusion. The legislature exempted statutorily elected officers who took office prior to the effective date of S.B. 691 from the requirement of certification. No such exemption was available to constables because they were already required to certify before passage of the bill. The clear purpose of section 415.053, both before and after the 1989 amendment, is the regulation of Texas law...