State v. Harney, 11227.

• Citation: 164 S.W.2d 55
• Decision Date: 05 August 1942
• Docket Number: No. 11227.,11227.
• Parties: STATE ex rel. DOWNS et al. v. HARNEY, Sheriff.
• Court: Court of Appeals of Texas

164 S.W.2d 55

STATE ex rel. DOWNS et al. v. HARNEY, Sheriff.

No. 11227.

Court of Civil Appeals of Texas. San Antonio.

August 5, 1942.

Rehearing Denied August 8, 1942.

Appeal from District Court, Nueces County, Ninety-fourth District; Allen Wood, Judge.

Action by the State, on the relation of W. W. Downs and others, to remove John B. Harney from the office of sheriff of Nueces county. Judgment for defendant, and plaintiff appeals.

Cause dismissed.

Gerald C. Mann, Benjamin Woodall, Edgar Pfeil, Fred C. Chandler, Wm. J. Fanning, Geo. W. Barcus, and Ocie Speer, all of Austin, for appellant.

J. B. Hubbard, B. D. Tarlton, and Jerry D'Unger, all of Corpus Christi, for appellee.

SMITH, Chief Justice.

This action, for the removal from office of the Sheriff of Nueces County, was brought in the name of the State, by the Attorney General, in the 94th District Court of that County, on the relation of a group of citizens of that County.

On the trial of the action on its merits, a jury found for the Sheriff on each of the numerous charges set up by the Attorney General, and upon that verdict the trial court rendered judgment denying removal of the Sheriff. The Attorney General has prosecuted this appeal from that judgment.

At the outset this Court is presented with the question of whether the Attorney General had any power to bring the action on the relation of private citizens. It is contended by the Sheriff that such suit for removal from office of a county official may be brought only by the district or county attorney, and may not be instituted by the Attorney General alone, or at the instance of private citizens.

As the powers and duties of the Attorney General are prescribed by the Constitution and Statutes, those powers must be limited to those so prescribed, and may not be enlarged by the courts.

It may be said further that causes for removal of elective county officials are also prescribed by the Constitution and by such Statutes as are expressly or by necessary implication authorized in the Constitution; that causes for removal may not be extended by the courts or by statutes not expressly authorized by the Constitution. And where the Constitution or valid statutes authorized by the Constitution prescribe a method of procedure for such removal, such method is deemed exclusive so that the courts may not resort for such purpose to methods not so prescribed. With these elemental principles in mind we will consider the primary questions presented in the appeal.

It is provided in Art. 4, § 22, of the Constitution, Vernon's Ann.St., that the Attorney General shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party; that he shall inquire into charter rights of private corporations, and in the name of State take appropriate action in the regulation of private corporations, and "perform such other duties as may be required by law."

Under that authority the Legislature directed the Attorney General to "prosecute and defend all actions in the Supreme Court or the Courts of Civil Appeals in which the State may be interested." Art. 4395, R.S. 1925.

The causes of, and procedure for, removal of public officials are prescribed in "Title 100 — Officers — Removal Of."

Under that title it is provided in Art. 5961, that State officials and judges of appellate and district courts shall be removable by impeachment, and in Arts. 5962 and 5963 proceedings for impeachment are prescribed.

Art. 5964 provides for removal by the governor of judges of appellate and district courts, commissioners of agriculture and insurance and of banking, upon address by two-thirds of the Legislature, through the procedure therein prescribed.

In Art. 5965 removal by the Supreme Court of district judges is provided, and the procedure therefor is prescribed in Art. 5966.

In Art. 5967 provision is made for removal by the governor of appointive state officers, by the procedure therein prescribed.

In Art. 5968 it is provided that conviction for any felony or misdemeanor involving official misconduct shall work immediate removal from office of any officer so convicted, and the judgment of conviction shall include an order of removal.

In Art. 5969 it is provided that the convicted officer may appeal from and supersede the order of removal, subject to suspension by the trial judge pending such appeal.

We come, next, to the statutes applicable to the case in hand. Art. 5970, which provides for removal of county officers by a district judge, is directly applicable to this case, and is as follows: "All * * * county officers * * * may be removed from office by the judge of the district court for incompetency, official misconduct or becoming intoxicated by drinking intoxicating liquor, as a beverage, whether on duty or not; * * *."

This article is based on Art. 5, § 24, of the State Constitution, as follows: "Sec. 24. 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."

Procedure for suits for removal under § 24, Art. 5, of the Constitution, and Art. 5970, including definitions of "incompetency" and "official misconduct," are prescribed in detail in Arts. 5971 through 5983.

Arts. 5984 through 5995 relate to specific officers, offenses, remedies and procedure not pertinent to this inquiry.

Art. 5996 relates to the articles of the Penal Code denouncing and penalizing nepotism. In this article it is provided that persons violating the penal acts prohibiting nepotism "shall be removed from his office, clerkship, employment or duty," as therein (in the Penal Code) mentioned, and, further, "Such removal from office shall be made in conformity to the provisions of the Constitution of this State concerning removal from office in all cases to which they may be applicable. All other removals from office under the provisions of this law shall be by quo warranto proceedings. All removals from any such position, clerkship, employment or duty aforesaid shall be summarily made, forthwith, by the appointing power in the particular instance, whenever the judgment of conviction in a criminal prosecution in the particular case shall become final; provided, that, if such removal be not so made within thirty days after such judgment of conviction shall become final, the person holding such position, clerkship or employment, or performing such duty, may be removed therefrom as herein provided with reference to removal from office."

Title 100 concludes with Art. 5997, which is as follows: "All quo warranto proceedings mentioned shall be instituted by the Attorney General in any district court of Travis County or in the district court of the county in which the defendant resides; the district or county attorney of the county in which such suit may be filed shall assist the Attorney General therein whenever he shall so direct."

The Attorney General contends that the provision in the Nepotism Act that "all other removals from office under the provisions of this law shall be by quo warranto proceedings," includes all actions for removal under the provisions of Title 100. We overrule this contention, for, by its own language, the quoted provision relates only to actions arising under the Nepotism Act, or Art. 5996, in which the quoted clause is embraced.

We believe we have set forth all the constitutional and statutory provisions which purport to define the powers and duties of the Attorney General. Under § 22, Art. 4, of the Constitution it is provided that the Attorney General "shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party * * * and perform such other duties as may be required by law." Under that authority the Legislature, in 1846, provided that the Attorney General shall prosecute and defend all actions in the Supreme Court or the Courts of Civil Appeals in which the State may be interested. Art. 4395. Under the Nepotism Act (Art. 5996), passed in 1909, by the authority granted in § 22, Art. 5 of the Constitution, the Legislature provided removals for violation of the provisions of that Act "shall be made in conformity to the provisions of the Constitution of this State concerning removal from office in all cases to which they may be applicable," but that "all other removals from office under the provisions of this (Nepotism) law shall be by quo warranto." Art. 5996. There is no...