State v. Ennis

• Decision Date: 01 May 1946
• Docket Number: No. 11623.,11623.
• Citation: 195 S.W.2d 151
• Parties: STATE ex rel. HANCOCK et al. v. ENNIS, Sheriff.
• Court: Texas Court of Appeals

195 S.W.2d 151

STATE ex rel. HANCOCK et al. v. ENNIS, Sheriff.

No. 11623.

Court of Civil Appeals of Texas. San Antonio.

May 1, 1946.

Rehearing Denied May 29, 1946.

Appeal from District Court, Thirty-Sixth District, Bee County; W. G. Gayle, Judge.

Ouster proceeding by the State of Texas, on the relation of J. M. Hancock and others, against R. V. Ennis, Sheriff of Bee County. From a judgment granting motion to dismiss filed by District Attorney, relators appeal.

Affirmed.

John R. Beasley, of Beeville, Morriss & Morriss, of San Antonio, and John M. Turner, of Beeville, for appellants.

Tarlton, Koch & Hale, of Corpus Christi, Reese Wade, of Beeville, and Jerry D'Unger, of Corpus Christi, for appellee.

PER CURIAM.

This is an appeal prosecuted from an order of the district court dismissing ouster proceedings brought against R. V. Ennis, the Sheriff of Bee County.

The suit was instituted by the State of Texas, acting by and through Alex F. Cox, the duly elected and qualified district attorney of the 36th Judicial District, which district includes Bee County. J. M. Hancock and nineteen other citizens of Bee County joined in the petition as relators.

Numerous charges of malfeasance in office were made against the sheriff. These charges if true would authorize the rendition of a judgment of ouster.

On November 24, 1945, the petition was filed and the district judge entered an order directing Ennis to appear on December 10, 1945, and show cause, if any he had, why the prayer of the petition should not be granted.

The sheriff answered and, after various amendments of pleadings and further proceedings, not necessary to mention here, the district attorney, on February 8, 1946, filed the following motion:

"Now comes Plaintiff, the State of Texas, by and through Alex F. Cox, District Attorney, and says that it will not further prosecute its said suit as against the defendant, R. V. Ennis.

"Wherefore, judgment of the court is prayed that said suit be dismissed.

                  "(Signed)  Alex F. Cox
                            "District Attorney, 36th
                             Judicial District of Texas
                             For the State."
                

This motion was resisted by the relators but granted by the court. The order of dismissal recites that "the Court is of the opinion that the District Attorney, by virtue of his office is constituted the leading counsel in said suit and is clothed with discretion either to prosecute or move to dismiss this suit, and the said District Attorney having moved to dismiss same, the Court is of the opinion that said Motion should be in all things granted."

The question presented relates to the right or authority to control the course of litigation of the character here involved. It was the desire of the district attorney to discontinue the suit. This was contrary to the wishes of the relators, who insisted that the suit should be prosecuted to final judgment.

This is a suit invoking a remedy which "belongs to the state, in its sovereign capacity, to protect the interests of the people as a whole and guard the public welfare by ousting incumbents of office who wrongfully hold to the injury of the public." State Railroad Commission v. People, 44 Colo. 345, 98 P. 7, 11, 22 L. R.A.,N.S., 810; Staples v. State, 112 Tex. 61, 245 S.W. 639. It is not alleged in the petition that the relators have suffered or are threatened with some damage peculiar to themselves as individuals, as a result of the alleged acts of the sheriff complained of. The right sought to be enforced by this suit is therefore a public right as distinguished from a private right. City of San Antonio v. Strumberg, 70 Tex. 366, 7 S.W. 754.

In Staples v. State ex rel. King, 112 Tex. 61, 245 S.W. 639, the Supreme Court discussed the prior case of Maud v. Terrell, 109 Tex. 97, 200 S.W. 375, 376, and pointed out that said decision was authority for the proposition that even the Legislature was without authority under the Constitution to restrict the exclusive powers of the county attorneys or district attorneys and the Attorney General to represent the State. The following excerpt from the opinion of Chief Justice Phillips in Maud v. Terrell was quoted with approval:

"That instrument (the Constitution), by Section 21 of Article 5, lodges with the county attorneys the duty of representing the State in all cases in the district and inferior courts, with the right in the Legislature to regulate by law the respective duties of district and county attorneys where a county is included in a district having a district attorney; and by Section 22 of Article 4 that duty as to suits and pleas in the Supreme Court is confided to the Attorney-General. With the limitation existing in the authority of the Legislature, under Section 22 of Article 4, to create additional causes of action in favor of the State and entrust their prosecution, whether in the trial or in the appellate courts solely to the Attorney-General, the powers thus conferred by the Constitution upon these officials are exclusive. The Legislature cannot devolve them upon others. Nor can it interfere with the right to exercise them. Brady v. Brooks, 99 Tex. 366, 89 S. W. 1052; Harris County v. Stewart, 91 Tex. 133, 41 S.W. 650; State v. International & G. N. R. Co., 89 Tex. 562, 35 S. W. 1067. It may provide assistance for the proper discharge by these officials of their duties, but since in the matter of prosecuting the pleas of the State in the courts the powers reposed in them are exclusive in their nature, it cannot, for the performance of that function, obtrude other persons upon them and compel the acceptance of their services. Wherever provision is made for the services of other persons for this express purpose, it is the constitutional right of the Attorney-General and the county and district attorneys to decline them or not at their discretion, and, if availed of, the services are to be rendered in subordination to their authority."

The appellants here, who were the relators below, do not rely upon a grant of statutory authority to maintain this suit, but insist that Article 5, § 24 of the Constitution, Vernon's Ann.St., vests such authority in them. We are unable to agree with this contention. Article 5, § 21, and Article 5, § 24, being parts of the same Constitution must of necessity be construed together.

In State ex rel. Downs v. Harney, Tex. Civ.App., 164 S.W.2d 55, this Court dismissed an ouster suit brought against the Sheriff of Nueces County by the Attorney General of Texas, upon the relation of certain citizens of Nueces County. The basis of the dismissal was the holding that the Attorney General was not authorized to maintain an ouster suit against a sheriff. It would seem to follow that if the Attorney General could not maintain the suit upon the relation of citizens of the county affected, then likewise such suit could not be maintained by private individuals alone appearing in the capacity of relators.

However, appellants point out that in the Harney case the Attorney General prosecuted...