Stern v. State ex rel. Ansel

• Citation: 869 S.W.2d 614
• Decision Date: 06 January 1994
• Docket Number: No. C14-92-01362-CV,C14-92-01362-CV
• Parties: Jack R. STERN, Appellant, v. The STATE of Texas, ex rel Walter ANSEL and Oleva "Bo" Randall, Appellees. (14th Dist.)
• Court: Court of Appeals of Texas

Page 614

869 S.W.2d 614

Jack R. STERN, Appellant, v. The STATE of Texas, ex rel Walter ANSEL and Oleva "Bo" Randall, Appellees.

No. C14-92-01362-CV.

Court of Appeals of Texas Houston (14th Dist.).

Jan. 6, 1994.

Rehearing Denied Jan. 11, 1994.

Keith Hampton, David S. O'Neill, Lynne Liberato, Maria Teresa Arguindegui and Jeff Nobles, Houston, for appellant.

Rusty Hardin, Cathleen C. Herasimchuk, Houston, for appellees.

Before ROBERTSON and CANNON, JJ., and MORSE, J., sitting by designation.

OPINION

CANNON, Justice.

This is an appeal from a judgment removing Jack R. Stern from the office of District Attorney for Fort Bend County. Relators alleged incompetence and official misconduct under the Texas Removal Statute as grounds for Mr. Stern's removal. TEX.LOCAL GOV'T CODE ANN. § 87.013 (Vernon 1988). The crux of the complaint against Jack Stern is twofold: (1) he publicly released transcripts of grand jury testimony, and (2) he abused a grand jury witness. ¹ This combined conduct forms the bedrock upon which the removal action was founded. After trial, the jury returned a verdict removing Stern from office for official misconduct and incompetent behavior. Stern comes before this Court asserting thirteen points of error, variously grouped. We affirm.

In his first two points of error, Stern asserts that the court below erred in denying his Motion for Directed Verdict and Motion for Judgment non obstante veredicto because there was no evidence that he was guilty of either official misconduct or incompetence. In his second point, he alleges that the trial court erred by denying his Motion for a New Trial because the evidence was factually insufficient to show that he was guilty of either official misconduct or incompetence.

A directed verdict is proper (1) when a defect in the opponent's pleadings makes them insufficient to support a judgment, (2) when the evidence conclusively proves a fact that establishes a party's right to judgment as a matter of law, or, (3) when the evidence offered on a cause of action is insufficient to raise an issue of fact. M.N. Dannenbaum v. Brummerhop, 840 S.W.2d 624, 629 (Tex.App.--Houston [14th Dist.] 1992, writ denied). When determining whether the trial court's judgment non obstante veredicto is proper, the reviewing court must view the evidence admitted at trial in favor of the nonmovant and determine that there is no evidence upon which the jury could have made the findings relied upon. Id. at 628. Finally, when reviewing a challenge to the sufficiency of the evidence, this Court must first consider, weigh, and examine all of the evidence which supports and which is contrary to the jury's determination. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). This Court may set aside the verdict only if it is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong, or if the evidence standing alone is too weak to support the finding. Cain v. Bain, 709 S.W.2d 175 (Tex.1986) (per curiam ).

Section 87.013 of the Texas Local Government Code sets forth the exclusive grounds for removal of a public officer, which include (1) incompetency, and (2) official misconduct. Incompetency is defined as gross ignorance of official duties, gross carelessness in the discharge of those duties, or unfitness or inability to discharge those duties due to a serious physical or mental defect. Official misconduct means intentional, unlawful behavior relating to official duties by an officer entrusted with the administration of justice or execution of the law. It includes an intentional or corrupt failure, refusal, or neglect of an officer to perform a duty imposed on the officer by law. TEX.LOCAL GOV'T CODE ANN. § 87.011(2), (3) (Vernon 1988) (emphasis added). A trial court can remove an elected officer only for one of the causes enumerated in section 87.013. State of Texas ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex.Crim.App.1990). Furthermore, an elected officer can be removed for official misconduct only if he violates a specific statutory duty that amounts to unlawful conduct. State ex rel. Edwards v. Reyna, 160 Tex. 404, 333 S.W.2d 832 (1960).

Stern postulates that the jury could not remove him from office because there is no statute prohibiting a district attorney from making grand jury testimony public. Stern relies primarily upon article 20.02 of the Texas Code of Criminal Procedure for authority that only grand jury members and the bailiff are prohibited from divulging anything that transpires before the grand jury. Stern further relies on the language of that statute for the proposition that only the deliberations, e.g. discussions and voting, of the grand jurors are subject to the rule against disclosure, and that it does not apply to testimony given before the grand jury.

Appellant misapprehends the purpose of article 20.02. The goal of that article is not to limit the prohibition against disclosure to grand jurors and bailiffs alone. The specific purpose of article 20.02 is to penalize a grand juror or bailiff for making such a disclosure. Nothing in the article suggests that individuals such as witnesses, counsel for the accused, court reporters or state attorneys can publicly divulge events that take place before a grand jury.

District attorneys have a clearly defined statutory and a common law duty to keep grand jury testimony secret. We reach our decision after reviewing the specific articles of the Code of Criminal Procedure that govern grand jury conduct. ² We give these articles that reasonable and liberal construction which will result in the accomplishment of the purposes for which they were enacted. Huntress v. State ex rel. Todd, 88 S.W.2d 636, 643 (Tex.Civ.App.--San Antonio 1935, writ dism'd). We reject the argument that what is not expressly forbidden by statute is authorized. Cf., Morrison v. State, 845 S.W.2d 882, 889, 896 (Tex.Crim.App.1992) (Clinton, J., concurring).

Article 19.34 swears grand jurors to secrecy. ³ Article 19.36 swears bailiffs to secrecy. ⁴ Article 20.02 provides a penalty for grand jurors and bailiffs who reveal anything that transpires before them during the course of their official duties. ⁵ Article 20.16 swears witnesses to secrecy and imposes a penalty upon any witness who reveals the content of his testimony, or any other matter that occurs before the grand jury in his presence. ⁶ Article 20.03 permits an attorney for the state to appear. Article 20.04 also provides that only grand jurors and the state's attorney have a right to question witnesses. Thus, the attorney for the accused is not entitled to attend the sessions, he is not entitled to cross-examine witnesses, he is not even entitled to be present when the accused is being questioned. No one, other than a witness or the state's attorney may address the grand jury about a matter that is before it. The accused, or the attorney for the accused, may, on their own initiative, address the grand jury only if the state's attorney permits. The public is not allowed to attend grand jury sessions.

Viewing the scheme of the Code as a whole, grand jury proceedings, including the taking of testimony, are secret. Moreover, article 20.02 clearly proclaims that any grand juror or bailiff who divulges "anything transpiring before them in the course of their official duties" shall be in contempt of court (emphasis added). Not only "deliberations" are included within the ambit of the rule of secrecy, but anything that takes place before the bailiffs and grand jurors, including testimony. TEX.CODE CRIM.PROC.ANN. art. 20.02 (Vernon Supp.1993) (emphasis added). Texas courts have uniformly followed this rule. Any communication made to the grand jury in the regular performance of its duties is secret. Hott v. Yarborough, 112 Tex. 179, 245 S.W. 676, 678 (Comm.App.1922, opinion adopted); Gutgesell v. State, 43 S.W. 1016 (Tex.Crim.App.1898), overruled on other grounds by Addisson v. State, 85 Tex.Crim. 181, 211 S.W. 225 (1919) ("... it would appear to be the declared policy of our law to make secret all of the proceedings before the grand jury...."); see also, Ex parte Port, 674 S.W.2d 772, 779, n. 8 (Tex.Crim.App.1984), overruled on other grounds by Ex parte Edone, 740 S.W.2d 446 (Tex.Crim.App.1987); Quarles v. State, 385 S.W.2d 395, 397 (Tex.Crim.App.1964), cert. denied, 382 U.S. 829, 86 S.Ct. 65, 15 L.Ed.2d 73 (1965).

A prosecuting attorney is the servant of the grand jury. Among his many duties, the prosecuting attorney takes custody of evidence that is submitted for the grand jury's consideration. It must always be remembered, however, that evidence and testimony presented to the grand jury remains in the possession of that institution even though it is physically held by officials who take custody of such records and files. See, Tex.Att'y Gen. ORD-398 (1983); cf., Taylor v. State, 87 Tex.Crim. 330, 221 S.W. 611, 614 (1919). As such, these matters are not subject to public disclosure, and where the grand jury members have no authority to disclose, their servants have no authority to disclose.

The policy reasons for secrecy are compelling. It ensures the utmost freedom to the grand jury in its deliberations. It prevents other persons subject to indictment, or their friends, from importuning the grand jurors; no undue influence should be permitted to sway its counsels or govern its action. Moreover, grand jurors should be free from the apprehension that someone may disclose subsequently their opinions and votes. The requirement of confidentiality also prevents subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted. Further, secrecy encourages free and untrammeled disclosures by persons who have information with respect to the commission of crimes. Witnesses can give evidence without fear of reprisal from an accused or any other person. ...