State ex rel. Edwards v. Reyna

• Decision Date: 24 February 1960
• Docket Number: No. A-7141,A-7141
• Citation: 160 Tex. 404,333 S.W.2d 832
• Parties: STATE of Texas ex rel. Hamp EDWARDS et al., Petitioners, v. E. B. REYNA et al., Respondents.
• Court: Texas Supreme Court

Page 832

333 S.W.2d 832

160 Tex. 404

STATE of Texas ex rel. Hamp EDWARDS et al., Petitioners, v. E. B. REYNA et al., Respondents.

No. A-7141.

Supreme Court of Texas.

Feb. 24, 1960.

R. L. Lattimore, Dist. Atty., Edinburg, R. M. Bounds, Edward Idar, Jr., Magus F. Smith, McAllen, for petitioners.

Rankin, Cherry & Martinez, Kelley, Looney, McLean & Littleton, Edinburg, for respondents.

NORVELL, Justice.

This is an ouster suit based upon alleged official misconduct ¹ of school trustees growing out of an election held on April 5, 1958. The trial court ousted E.B.Reyna, Margarito Reyna and ramiro Cardenas from office ² but this judgment was reversed by the Court of Civil Appeals. Reyna v. State ex rel. Edwards, 319 S.W.2d 28.

This Court was of the tentative opinion that as the defendant trustees had assumed to prepare the official ballot for the election mentioned, they were subject to removal from office in failing to carry out such duty in a fair and impartial manner, and that the evidence in the case supported the jury's finding that the defendant trustees had acted wilfully and in disregard of the laws of the State of Texas and the rights of Mr. Hamp Edwards in failing to place his name upon the official ballot for the school trustee election of April 5, 1958. Accordingly, writ of error was granted. From the standpoint of preservation of democratic government, any wrongful action tending to thwart the public will by interfering with a free expression thereof through the medium of a public election is admittedly a matter of serious concern. However, the conduct of elections is primarily a matter for legislative regulation and control. In view of this principle and after plenary hearing, we have concluded that the Court of Civil Appeals' approach to and analysis of the controlling question in this case is correct and that its judgment should be affirmed.

The controlling facts may be briefly stated as follows:

On February 4, 1958, the Board of Trustees of Tabasco Consolidated Independent School District entered an order calling for an election to be held on April 5th for the purpose of electing three members to the Board of Trustees of said district. This order provided, 'That all requests by candidates to have their names placed upon the ballot for the above mentioned election shall be in writing and filed with A. Zamora at the office of the Secretary not later than March 5, 1958 at 5:00 P.M. * * * The manner of holding said election shall be governed, as near as may be, by the Election Code of this State, and this Board of Trustees will furnish all necessary ballots and other election supplies requisite to said election.'

We may here interpolate that there is no provision of the Election Code which specifically relates to a candidate's application for a place upon a ballot in a school trustee election. Applications for places upon a ballot in various elections generally require that the age, citizenship, length of residence in the county or state be stated and that the application be sworn to or acknowledged. ³

Mr. Hamp Edwards' application for a place on the ballot was in the form of a three-line letter addressed to the Secretary of the Board. It was not sworn to or acknowledged. Neither was it accompanied by a loyalty affidavit as required by Article 58 of the 1951 Election Code, Article 6.02, Vernon's Tex.Election Code. The application read as follows:

'Box 214

Mission, Texas

Feb. 14, 1958

'Mr. Alejandro Zamora

Sect. Board of Education Tabasco

Ind. School District

La Joya, Texas

'Dear Sir:

'I hereby make request that my name be placed on the ballot as a candidate for Trustee of said School Districts. Election to be held on April 5, 1958.

'Very cordially

'(Signed) Hamp Edwards

'Received on 2-15-58 at 9:51 A.M.'

The applications of the other candidates to have their names placed upon the ballot were upon substantially the same form as that used by Felix Flores (apparently a member of the same political faction as Edwards) which application was as follows:

'Tabasco Consolidated Independent School District

'La Joya, Texas

February 22, 1958

'To: Board of Trustees, Tabasco Consolidated Independent School District, La Joya, Texas.

'Gentlemen:

'I, Felix Flores, do hereby make application to have my name placed upon the Official Ballot of the Election for Trustees of Tabasco Consolidated Independent School District to be held in said District on April 5, 1958.

'I have been a Resident of the State of Texas for more than one year and of Tabasco Consolidated Independent School District for more than six months. I am a property taxpayer in said district and am otherwise a qualified voter in said district.

'My Loyalty affidavit as required by Article 58 of the Election Code (House Bill No. 6, 52nd Legislature, 1951) is attached hereto and made a part thereof.

'Felix Flores

'The State of Texas

'County of Hidalgo

'Before me, the undersigned authority, a Notary Public in and for Hidalgo County, Texas, on this day personally appeared Felix Flores who upon oath deposes and says:

'I, Felix Flores, of the County of Hidalgo, State of Texas, being a candidate for the office of Trustee of Tabasco Consolidated Independent School District, do solemnly swear that I believe in and approve of our present representative form of government, and if elected, I will support and defend our present representative form of government and will resist any effort or movement from any source which seeks to subvert or destroy the same or any part thereof, and I will support and defend the Constitution and the laws of the United States and of the State of Texas.

'Felix Flores

'Subscribed and sworn to before me, the undersigned authority, this 22nd day of February, 1958.

'Alejandro Zamora

'Alejandro Zamora, Notary Public in and for Hidalgo County, Texas.

'My Commission Expires June 1, 1959.

'Signed and filed at 11:58 A.M. on 2-22-58.'

The application of Armando mercado, who was also a member of the Edwards' party or faction, contained the additional statement that 'I read and write the English language understandably.'

On March 6th, Edwards filed a loyalty affidavit but made no further amendment of his application. In this connection see, McWaters v. Tucker, Tex.Civ.App., 249 S.W.2d 80, no writ history.

The Board held that Edwards' application was defective and refused to place his name upon the ballot, whereupon he secured a writ of mandamus from the 92nd District Court of Hidalgo County, Texas ordering the Board to place his name upon the ballot. The Board appealed from this order and filed a supersedeas bond. The election was held before the appeal could be heard by the appellate court and the mandamus action was dismissed as moot. Board of Trustees of Tabasco Consol. Independent School Dist. v. Edwards, Tex.Civ.App., 311 S.W.2d 872.

The issue in this case is not whether the district judge was correct in granting the writ of mandamus. The question is whether or not the respondent trustees were guilty of acts which under the law would work a forfeiture of the offices to which they were elected. The petitioners are without direct case authority supporting their assignments upon which the writ of error was granted. As pointed out by the Court of Civil Appeals, this Court held in 1890 that the ouster statute is 'penal in character, and must be construed as though it were one defining a crime and prescribing its punishment.' State ex rel. Hickman v. Alcorn, 78 Tex. 387, 14 S.W. 663, 665.

This rule seems to have been consistently followed. Considering the length of time the ouster statute has been on the books, resort thereto has been comparatively rare. The rule of strict construction may account for this circumstance. It appears from an examination of the reported cases that all those officials who have been ousted from office had clearly violated or disregarded some duty enjoined by law, generally a standard of conduct established by the legislative branch of government rather than some judicial notion of what is fair or impartial.

In Perry v. State ex rel. Horn, 44 Tex.Civ.App. 55, 98 S.W. 411, wr. ref., a county judge was removed from office upon being found guilty of conspiring to prevent the collection of state and county taxes. The county judge is a member of the Board of Equalization and a violation of a statutory duty was clearly involved.

In Reeves v. State, Tex.Civ.App., 258 S.W. 577, no writ history, a sheriff was charged with violation of the prohibition laws and removed from office. Again violations of statutory enactments were involved.

In McDaniel v. State, Tex.Civ.App., 9 S.W.2d 478, wr. ref., a sheriff was removed from office for violating the statutes relating to the collection of fees in felony cases.

In Jones v. State, Tex.Civ.App., 109 S.W.2d 244, no writ history, a constable was removed from office for the commission of acts contrary to legislative enactments and prohibited by both the constitution of Texas and that of the United States in that he was guilty of holding persons in arrest contrary to the provisions of the penal code and under circumstances which amounted to false imprisonment.

In State ex rel. Glenn v. Jordan, Tex.Civ.App., 28 S.W.2d 921, wr. dism., a final judgment of ouster was not shown. The Court of Civil Appeals reversed a judgment for a county judge based upon an instructed verdict. Here again, however, the breach of statutory regulations controlling the appointment of auditors and the paying out of county funds was involved.

Similarly in Cornutt v. State ex rel. Alexander, Tex.Civ.App., 55 S.W.2d 160, wr. dism., a judgment of ouster was reversed because of the giving of an incorrect charge to the jury. Here again the unlawful payment of county funds was involved. The manner and method of paying out such funds is regulated by statute.

See also, Fitzjarrald v. Panhandle Publishing Co., 149 Tex. 87, 228 S.W.2d 499; Garcia v. Laughlin, 155 Tex. 261, 285 S.W.2d 191; Lamb v. State...