State ex rel. Driscoll v. Lindsay, 01-94-00283-CV

• Decision Date: 08 June 1994
• Docket Number: No. 01-94-00283-CV,01-94-00283-CV
• Citation: 877 S.W.2d 856
• Parties: STATE of Texas ex rel. Mike DRISCOLL, Appellant, v. Jon LINDSAY, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 856

877 S.W.2d 856

STATE of Texas ex rel. Mike DRISCOLL, Appellant, v. Jon LINDSAY, Appellee.

No. 01-94-00283-CV.

Court of Appeals of Texas Houston (1st Dist.).

June 8, 1994.

Rehearing Denied July 7, 1994.

Mike Driscoll, Frank Sanders, Michael P. Fleming, Sandra D. Hachem, Houston, for appellant.

Lynne Liberato, Alene Ross Levy, David H. Berg, Richard H. Kaplowitz, Houston, for appellee.

Before JOHN HILL, C.J., ¹ and BURGESS ² and BASS, ³ JJ.

OPINION

JOHN HILL, Chief Justice (Assigned).

The State of Texas ex rel. Mike Driscoll, the County Attorney of Harris County, appeals from the trial court's order dismissing the State's suit for the removal from office of Jon Lindsay, the County Judge of Harris County and the appellee in this appeal. The State urges in four points of error that the trial court erred in dismissing the State's suit for removal because there was no requirement for verification of its petition; and, if there were, any defect in the affidavit verifying its petition had been corrected by amendment; and that the trial court erred in granting Lindsay's motion for partial summary judgment relating to campaign officeholder funds because conversion of political contributions to personal use is official misconduct and grounds for removal from office.

We reverse the trial court's order dismissing this cause because we hold that the State properly corrected any defect in the verification of its petition prior to the dismissal. We further hold that we may not consider the State's points of error relating to a partial summary judgment because in the absence of the dismissal it is an interlocutory judgment that we have no authority to review.

The State contends in points of error numbers one and two that the trial court erred in dismissing its suit for removal of Lindsay because its petition need not have been sworn to; or, even if it did, the accompanying affidavit was properly sworn to; or, if not, the affidavit had been amended and was in proper form at the time of the dismissal.

We first address the State's argument that there is no requirement that its petition for removal be verified. Section 87.015(b) of the Texas Local Government Code provides that at least one of the parties who files a petition for the removal of an officer must swear to it at or before the filing. TEX. LOCAL GOV'T CODE ANN. § 87.015(b) (Vernon 1988). We decline to adopt the State's argument that this requirement does not apply when the petition is brought by the State's representative. We therefore conclude that the State's removal petition must be verified.

We next consider the State's claim that Mike Driscoll's affidavit reciting that the facts contained in the petition were true and correct "to the best of my knowledge and belief" was sufficient to support the petition and defeat Lindsay's motion to dismiss. "Unless authorized by statute, an affidavit is insufficient unless the allegations therein are direct and unequivocal and perjury can be assigned upon it." Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex.1975). Consequently, an affidavit sworn to as "true and correct to the best of his knowledge" is insufficient because it does not "positively and unqualifiedly represent the facts as disclosed in the accounting to be true and within the personal knowledge of the affiant." Id. This rule is applicable in removal actions. Johnson v. Mooney, 241 S.W. 308, 309 (Tex.Civ.App.--Beaumont 1922, no writ). We conclude that the original affidavit was insufficient to support this removal action.

As we have previously noted, the affidavit has been amended to provide that Driscoll has "read the Third Amended Original Petition for Removal From Office, and it is true and correct." The State contends that any defect in the original affidavit has been cured by this amendment.

The Texas Supreme Court, in original proceedings for removal filed before it, has allowed amendment in cases where there was insufficient verification to confer jurisdiction. In re Hampton, 775 S.W.2d 629, 632 (Tex.1989) (per curiam). Consequently, we conclude that the amendment of verification of the State's petition was sufficient to confer jurisdiction upon the trial court. Therefore, the trial court was in error in dismissing the State's removal action once it was amended with proper verification.

Lindsay urges that our reliance on presentment cases in the supreme court is misplaced because different procedural rules apply than those in removal actions. While this may be true, we hold that the case upon which we have relied does demonstrate that, contrary to Lindsay's contention, a pleading may be amended so as to confer jurisdiction upon the court even though the original pleading was insufficient to confer jurisdiction by virtue of insufficient verification.

Lindsay primarily relies on the case of State ex rel. Kelly v. Baker, 580 S.W.2d 611 (Tex.Civ.App.--Amarillo 1979, no writ), in arguing that the defective verification may not be amended. In Baker, the court held that a removal action should have been dismissed for want of jurisdiction where, although the original petition had been verified, the amended trial petition was unverified. Baker, 580 S.W.2d at 614. In this case, Driscoll's third amended pleading, filed before the order dismissing the case was signed, is properly verified. Consequently, we find Baker to be distinguishable.

Lindsay also...