State ex rel. Angelini v. Hardberger

• Decision Date: 30 August 1996
• Docket Number: No. 96-0643,96-0643
• Citation: 932 S.W.2d 489
• Parties: 39 Tex. Sup. Ct. J. 1084 The STATE of Texas ex rel. Karen ANGELINI, Relator, v. The Honorable Phil HARDBERGER, Respondent.
• Court: Texas Supreme Court

Page 489

932 S.W.2d 489

39 Tex. Sup. Ct. J. 1084

The STATE of Texas ex rel. Karen ANGELINI, Relator, v. The Honorable Phil HARDBERGER, Respondent.

No. 96-0643.

Supreme Court of Texas.

Argued Aug. 13, 1996.

Decided Aug. 30, 1996.

Randall Buck Wood, Austin, Robert J. Myers, San Antonio, Doug W. Ray, Austin, for Relator.

Stuart W. Bowen, Stephen P. Koebele, Dan Morales, Austin, for Respondent.

ENOCH, Justice, delivered the opinion of the Court in which PHILLIPS, Chief Justice, and HECHT, CORNYN, OWEN and ABBOTT, Justices, join.

This is an original proceeding for writ of quo warranto. The State of Texas, on relation of the Governor's appointee, Karen Angelini, seeks a declaration that the Honorable Phil Hardberger has vacated his office as Justice of the Court of Appeals for the Fourth District of Texas. Because we conclude on constitutional grounds that Justice Hardberger has not yet vacated his office, and that there will be no vacancy in his office until the effective date of his resignation, we deny the writ of quo warranto.

By letter dated June 20, 1996, Justice Hardberger advised the Governor of his intention to resign his office effective January 1, 1997. The term of Justice Hardberger's office does not expire until December 31, 2000, but Justice Hardberger is a candidate for election to the office of Chief Justice of the Fourth Court of Appeals. Because he is unopposed, Justice Hardberger will be elected in the November general election and will be entitled to take office on January 1, 1997, for a full term of six years. Believing Justice Hardberger's resignation to be effective by statute eight days after the Governor received the resignation, or June 28, 1996, the Governor appointed Karen Angelini to fill the unexpired term of Justice Hardberger's office, until the next general election. See TEX.ELEC.CODE § 201.023. Justice Hardberger has refused to vacate his office. By writ of quo warranto, the State seeks to have the office declared vacant so that Angelini may assume the duties of the office.

I

A writ of quo warranto is an extraordinary remedy available to determine disputed questions about the proper person entitled to hold a public office and exercise its functions. State ex rel. R.C. Jennett v. Owens, 63 Tex. 261, 270 (1885). The Legislature has conferred original jurisdiction on this Court to issue writs of quo warranto. TEX.GOV'T CODE § 22.002(a); TEX. CONST. art. V, § 3. We have on two occasions in the past required parties seeking quo warranto to first pursue their claim in district court. See State ex rel. Todd v. Martineau, 141 Tex. 363, 171 S.W.2d 856 (1943) (dismissing quo warranto to determine whether individual was entitled to office of Special Judge of the 94th District Court); State ex rel. McCall v. Manry, 118 Tex. 449, 16 S.W.2d 809 (1929) (dismissing quo warranto to determine person entitled to hold office of district judge).

Here we are presented with compelling reasons to exercise our discretion to decide this matter without first requiring presentation to the district court. First, time is of the essence because two candidates for Justice Hardberger's unexpired term on the Fourth Court of Appeals have been placed on the ballot for the general election in November. The candidates should know their status as soon as possible. Second, the State contends that Justice Hardberger is improperly holding over in office and that his actions as Justice on the Fourth Court of Appeals are invalid. Finally, there are no disputed issues of fact. In such circumstances, it is not unusual for us to exercise our original jurisdiction to issue extraordinary writs without requiring that the issues first be determined by the lower courts. See LaRouche v. Hannah, 822 S.W.2d 632, 633-34 (Tex.1992) (exercising original jurisdiction in election mandamus); Sears v. Bayoud, 786 S.W.2d 248, 249-50 (Tex.1990) (same). To delay this case for presentation to the trial court and appeal to the court of appeals would be unfair to all concerned.

II

The Texas Constitution gives to the Governor the power to fill by appointment vacancies in higher judicial offices. Article V, Section 28 of the Constitution provides:

Vacancies in the office of judges of the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals ¹ and the District Courts shall be filled by the Governor until the next succeeding General Election; ...

TEX. CONST. art. V, § 28. See also TEX. CONST. art. V, § 2 (providing that a vacancy in the office of Chief Justice or Justice of the Supreme Court is to be filled by appointment by the Governor "until the next general election for state officers"); id. § 4 (providing that a vacancy in the office of Judge of the Court of Criminal Appeals is to be filled by appointment by the Governor "until the next succeeding general election"). Article IV, Section 12 also gives the Governor the power to fill by appointment vacancies in state or district offices:

Sec. 12. (a) All vacancies in State or district offices, except members of the Legislature, shall be filled unless otherwise provided by law by appointment of the Governor.

(b) An appointment of the Governor made during a session of the Senate shall be with the advice and consent of two-thirds of the Senate present.

....

(g) Appointments to vacancies in offices elective by the people shall only continue until the next general election.

(h) The Legislature by general law may limit the term to be served by a person appointed by the Governor to fill a vacancy in a state or district office to a period that ends before the vacant term otherwise expires or, for an elective office, before the next election at which the vacancy is to be filled, if the appointment is made on or after November 1 preceding the general election for the succeeding term of the office of Governor and the Governor is not elected at that election to the succeeding term.

(i) For purposes of this section, the expiration of a term of office or the creation of a new office constitutes a vacancy.

TEX. CONST. art. IV, § 12. As is plain from the text of Article V, Section 28, and Article IV, Section 12(g), the Constitution grants the Governor the power to make interim appointments to the next succeeding general election.

Justice Hardberger has indicated in his resignation letter to the Governor that he intends to remain in office and to fully discharge his duties until January 1, 1997. Barring some change in circumstances, Justice Hardberger's office will become vacant upon the effective date of his resignation, January 1, 1997.

A

The State claims that Justice Hardberger, whatever his expressed intent, cannot deliver his letter of resignation in June 1996, to be effective January 1, 1997, because the Texas Election Code creates a vacancy in his office no later than eight days after his letter of resignation is received by the Governor. The State points to section 201.023 of the Texas Election Code, which provides:

If an officer submits a resignation, whether to be effective immediately or at a future date, a vacancy occurs on the date the resignation is accepted by the appropriate authority or on the eighth day after the date of its receipt by the authority, whichever is earlier.

TEX.ELEC.CODE § 201.023 (emphasis added). In short, the State would have us read section 201.023 as ousting Justice Hardberger from his office months before he intends to vacate the office. Neither the statute nor the Texas Constitution permits such a construction.

Section 201.023 does not create an actual vacancy in office. That section and others in Subchapter 201(b) deeming vacancies for purposes of Title 12 of the Election Code are limited in application to that title. Section 201.021 specifically states:

For purposes of this title, a vacancy in office occurs at the time prescribed by this subchapter.

TEX.ELEC.CODE § 201.021. (emphasis added). On its face, section 201.023 expressly defines the time at which a vacancy occurs after resignation only for purposes of initiating the electoral process to fill that vacancy.

The dissent contends that section 201.023 could reasonably be read to oust Justice Hardberger from office because of his announced prospective resignation. However, under that reading, section 201.023 would unconstitutionally restrict the tenure of a duly elected officeholder. Having won election to the court in 1994, Justice Hardberger is entitled to serve for six years unless he dies, is constitutionally removed from office, or leaves of his own accord. While an appellate justice in this State may be constitutionally removed for several reasons, such as willful or persistent violation of rules promulgated by the Supreme Court, see TEX. CONST. art. V, § 1-a(6), incompetence in performing the duties of the office, id., willful violation of the Code of Judicial Conduct, id., or accepting another office of civil emolument, see TEX. CONST. art. XVI, § 40; Pruitt v. Glen Rose Indep. Sch. Dist., 126 Tex. 45, 84 S.W.2d 1004, 1006 (1935), submitting a future resignation is not one of them. If his service is ended by voluntary resignation, he controls the right to decide when he leaves. See State ex rel. Dosland v. Holm, 202 Minn. 500, 279 N.W. 218, 220 (1938). The Constitution permits his service to be extended, see TEX. CONST. art. XVI, § 17, but not truncated. Cf. Opinion of the Justices of the Supreme Judicial Court, 343 A.2d 196, 203 (Me.1975) ("When the Constitution fixes the tenure of a civil office, it is beyond the power of the Legislature to affect the tenure."); Fitzgerald v. Kuppinger, 163 Neb. 286, 79 N.W.2d 547, 552 (1956) (constitutional provision stating circumstances under which vacancy exists are exclusive and legislature has no power to add other or different grounds); State ex rel. Thompson v. Seigler, 230 S.C. 115, 94 S.E.2d 231, 233 (1956) (legislature cannot provide conditions for removal of constitutional officer unless authority for such action is found in ...