Tarrant County v. Ashmore

• Decision Date: 23 June 1982
• Docket Number: No. C-985,C-985
• Citation: 635 S.W.2d 417
• Court: Texas Supreme Court
• Parties: TARRANT COUNTY et al., Petitioners, v. Bob ASHMORE et al., Respondents.

Page 417

635 S.W.2d 417

TARRANT COUNTY et al., Petitioners, v. Bob ASHMORE et al., Respondents.

No. C-985.

Supreme Court of Texas.

June 23, 1982.

Rehearing Denied July 21, 1982.

Tim Curry, Crim. Dist. Atty., Frederick M. Schattman, Asst. Dist. Atty., Fort Worth, for petitioners.

Farrar & Claunch, Jim Claunch and Roy Basham, Charles Dickens, Fort Worth, for respondents.

POPE, Justice.

Bob Ashmore and others, all Tarrant County justices of the peace and constables threatened with removal from office by the redrafting of precinct boundary lines, brought this action for damages and for declaratory and injunctive relief against the Tarrant County Commissioners Court. The claims asserted in the suit were based upon alleged violations of procedural due process, and upon the purported rights of duly elected officeholders to complete their full terms of office. In response to these claims, the commissioners argued that their actions were authorized by Tex.Rev.Civ.Stat.Ann. art. 2351 1/2, which then allowed commissioners courts to declare certain offices abolished or vacated when precinct lines were redrawn. ¹ The trial court held that, while article 2351 1/2(c) was a constitutional means of removing officers from their positions, the procedures used by the Tarrant County Commissioners to accomplish that purpose in the present case were inconsistent with the officers' property rights and rights of due process. As a result, the court held, the officers were entitled to recover from the county the salaries and benefits they would have earned had they been allowed to remain in office for their full terms. The court of appeals affirmed the judgment of the trial court. 624 S.W.2d 740. We reverse the judgments of the courts below.

In the spring of 1980, the Commissioners Court of Tarrant County began the process of examining the justice and constable precincts in the county with a view toward complying with a federal district court redistricting order. See Bagsby v. Moncrief, No. CA-4-79-24k (N.D.Tex.1979). The last redistricting of Tarrant County had taken place in 1876, and a wide disparity between precinct populations existed. ² After receiving a proposed redistricting plan prepared by a demographic expert hired to study population trends in the county, the commissioners held five public hearings on consecutive nights in early August 1980 in order to solicit public comment. On August 25, the commissioners adopted the proposed plan, and concurrently ordered that all justice and constable precincts and each of the offices located therein be abolished effective January 1, 1981, so that the newly defined offices could be filled by appointment.

The present action was filed on December 16, 1980, by three justices of the peace and one constable seeking damages and injunctive and declaratory relief. Thereafter, on December 19, the trial court ordered the joinder of all other justices and constables in the county as involuntary plaintiffs. ³ Trial was held on December 30 and 31. While it was clear to the participants during trial that all justice and constable positions had been vacated, it was not certain at that time whether any incumbent or recently elected officer would be appointed to serve in any of the newly drawn precincts, since the commissioners court planned to make the appointments on the evening of December 31.

The trial court ruled on January 9, 1981, that article 2351 1/2 was constitutional, that the commissioners court had the power to redistrict and declare the offices of the justices and constables vacant, and that the vacancies could be filled by appointment. Notwithstanding the finding of validity of article 2351 1/2, however, the court held that the officers had property rights in their offices and were deprived of such property rights by the commissioners court without just compensation or regard for due process. As a result, the court held, the justices and constables were entitled to full salary and benefits, including any future cost of living increases afforded other county officials, for the remainder of their elected terms. ⁴

The court of appeals affirmed the judgment of the trial court. In so doing, the court agreed that the precinct officers had a property right in their offices and held that the redrafting of precinct boundaries must in all cases accord due process to the incumbents whose elective offices may be abolished. The court also held that, even if article 2351 1/2 was a valid and constitutional statute, it should not be construed as providing for the loss of a valuable property right-the right to complete an elected term of office-without just compensation. Recovery for lost salaries and benefits for the unexpired terms was therefore affirmed.

Taking of Property

We are aware that article I, section 17, of the Texas Constitution provides that "(n)o person's property shall be taken ... without adequate compensation ...." Additionally, the fifth amendment to the United States Constitution, made applicable to the states by way of the fourteenth amendment, concludes with the words: "nor shall private property be taken for public use, without compensation." We agree that these provisions stand as a shield between the exercise of governmental power and the rights of all citizens to own and enjoy property. We do not agree with the court of appeals, however, that the public officers in the present case had a "property" interest in their positions such that vacating the offices prior to the end of their terms resulted in a constitutionally recognizable "taking" of property without compensation.

The nature of public office has long been a point of analysis and discussion in Texas. Early courts described the elected and appointed position as "the right, authority, and duty created and conferred by law by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public." Kimbrough v. Barnett, 93 Tex. 301, 310, 55 S.W. 120, 122 (1900), quoted in Commissioners' Court of Limestone County v. Garrett, 236 S.W. 970, 972 (Tex.Comm'n App.1922, judgmt adopted). As the foregoing passage indicates, public offices began to be described properly by Texas courts not in terms of a "contract," "employment," "ownership," or "possession," but rather as a "trust," "duty," and "public benefit." In other words, stated briefly, public office came to be seen in Texas not as a right, but as a responsibility. In State ex rel. Maxwell v. Crumbaugh, 63 S.W. 925, 927 (Tex.Civ.App. San Antonio 1901, writ ref'd), for example, the court stated:

A public office is not "property," within the meaning of the constitutional provision that "no person shall be deprived of life, liberty or property without due process of law." It is a mere public agency, revocable according to the will and appointment of the people, as exercised in the constitution and the laws enacted in conformity therewith. Moore v. Strickling (W.Va.) (46 W.Va. 515), 33 S.E. 274, 50 L.R.A. 279. In the case cited the court in its opinion makes ... the following quotation: "It is impossible to conceive how, under our form of government, a person can own or have a title to a governmental office. Offices are created for the administration of public affairs. When a person is inducted into an office he thereby becomes empowered to exercise its powers and perform its duties, not for his, but for the public, benefit. It would be a misnomer and a perversion of terms to say that an incumbent owned an office or had any title to it."

It may be concluded, therefore, that a fundamental principle associated with our republican form of government is that every public officeholder remains in his position at the sufferance and for the benefit of the public, subject to removal from office by edict of the ballot box at the time of the next election, or before that time by any other constitutionally permissible means.

The decision in State ex rel. Maxwell v. Crumbaugh, supra, in declining to identify a public office as the "property" of the officeholder, is in line with the majority rule in other jurisdictions. See Annot., 172 A.L.R. 1366 (1948); 99 A.L.R. 336 (1935); 4 A.L.R. 205 (1919). In the early case of Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187 (1900), the United States Supreme Court was asked to settle a contest over the offices of governor and lieutenant governor of the State of Kentucky. The defendant officeholders in that suit, who were the losers of an election contest conducted in the state's general assembly, sought to retain their positions by asserting a property right to the office and the benefits attached thereto. The Supreme Court responded negatively to this contention by stating:

The view that public office is not property has been generally entertained in this country.

The decisions are numerous to the effect that public offices are mere agencies or trusts, and not property as such. Nor are the salary and emoluments property, secured by contract, but compensation for services actually rendered. Nor does the fact that a constitution may forbid the legislature from abolishing a public office or diminishing the salary thereof during the term of the incumbent change its character or make it property. True, the restrictions limit the power of the legislature to deal with the office, but even such restrictions may be removed by constitutional amendment. In short, generally speaking, the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right.

Id. at 576-77, 20 S.Ct. at 900-901. The holding of the Court in Taylor was subsequently reaffirmed in the case of Cave v. Missouri ex rel. Newell, 246 U.S. 650, 38 S.Ct. 334, 62 L.Ed. 921 (1918) (per curiam), and again in Snowden v. Hughes, 321 U.S. 1, 7, 64 S.Ct....