Tarrant County v. Ashmore

• Decision Date: 05 November 1981
• Docket Number: No. 18555,18555
• Citation: 624 S.W.2d 740
• Parties: TARRANT COUNTY, Texas, et al., Appellants, v. Bob ASHMORE, et al., Appellees.
• Court: Texas Court of Appeals

Page 740

624 S.W.2d 740

TARRANT COUNTY, Texas, et al., Appellants, v. Bob ASHMORE, et al., Appellees.

No. 18555.

Court of Appeals of Texas, Fort Worth.

Nov. 5, 1981.

Rehearing Denied Dec. 10, 1981.

Frederick M. Schattman, Fort Worth, for appellants.

Farrar & Claunch, Jim Claunch, Dickens & Paddock, Charles Dickens, Fort Worth, for appellees.

Before MASSEY, C. J., and SPURLOCK and HOLMAN, JJ.

OPINION

HOLMAN, Justice.

This is an appeal from a judgment that (1) a redistricting plan ordered by the county commissioners court deprived incumbent justices of the peace and constables of their terms of office without due process of law; and (2) the dispossessed officeholders are entitled to receive salaries and benefits for the remainder of their original terms of office.

We affirm.

Appellees were Tarrant County justices of the peace and constables who had been duly elected and were serving terms of office ending on either December 31, 1982, or December 31, 1984.

Using the redistricting powers vested in them by Tex.Const. art. 5 § 18 (1971) and Tex.Rev.Civ.Stat.Ann. art. 23511/2(c), the appellant commissioners court held hearings to redefine the precincts then being served by the appellees.

Following six public hearings, the commissioners court abolished the existing precincts and declared the appellees' offices vacant, effective January 1, 1981.

Appellees sued for a declaration as to whether the commissioners' action is valid; whether art. 23511/2(c) is constitutional; and for damages equal to the salaries and benefits of their respective offices for the remainder of their original terms.

The trial court judgment held art. 23511/2 to be constitutional and that the Tarrant County commissioners court has the power to redistrict and declare vacancies and to fill those vacancies.

The court also held that each appellee has a property right in his office and may not be deprived of that right without due process of law and just compensation. The county was ordered to pay salary, benefits and emoluments of office to each appellee for the unexpired portion of their respective terms.

Appellees present no cross-point now challenging the constitutionality of art. 23511/2, so we do not entertain that question. Acts of the legislature are presumed constitutional, and the courts will not anticipate a constitutional issue. Bush v. State of Texas, 372 U.S. 586, 83 S.Ct. 922, 9 L.Ed.2d 958 (1963); Vernon v. State, 406 S.W.2d 236 (Tex.Civ.App.-Corpus Christi 1966, writ ref'd n.r.e.).

Both the appellants and appellees rely upon language in Tex.Const. art. 5 § 18. It states that an elected justice of the peace or constable "shall hold his office for four years and until his successor shall be elected and qualified."

The same section vests the commissioners court with authority to divide the county into precincts and to revise those precincts "from time to time, for the convenience of the people."

Once those revisions are made, they are governed by art. 23511/2(c), which states:

"(c) When boundaries of justice of the peace precincts are changed, so that existing precincts are altered, new precincts are formed, or former precincts are abolished, if only one previously elected or appointed justice of the peace or constable resides within a precinct as so changed, he shall continue in office as justice or constable of that precinct for the remainder of the term to which he was elected or appointed. If more than one justice or constable resides within a precinct as so changed, or if none resides therein, the office shall become vacant and the vacancy shall be filled as other vacancies; provided, however, that in precincts having two justices, if two reside therein, both shall continue in office, and if more than two reside therein, both offices shall become vacant."

The appellees were evicted from office pursuant to art. 23511/2(c). Some were reappointed; some were not.

The appellees suit challenged the commissioners redistricting order denying appellees the right to complete their terms of office as being a deprivation of their property in violation of Tex.Const. art. 1 § 19, which provides:

"No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."

Our initial inquiry then is whether any constitutionally cognizable property interest is involved. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977).

Public office in this state is property, and a duly elected incumbent has a vested right to the possession of the office and enjoyment of its rights and emoluments. Such rights are protected by the constitution and will be enforced by the courts. Taylor v. Nealon, 132 Tex. 60, 120 S.W.2d 586 (1938); McGuire v. Hughes, 452 S.W.2d 29 (Tex.Civ.App.-Dallas 1970, no writ).

Appellants contend that their redistricting actions were accomplished in accord with due process. In their first point of error, appellants alternately assert that there was no evidence, and insufficient evidence, to support the court's finding that due process was denied.

Thus our next inquiry is to determine exactly what process is due under the facts of this case and whether the appellees were accorded less than the degree of procedural protection required. Ingraham v. Wright, supra.

The scope of due process was concisely reviewed in Cantu v. Parr, 338 S.W.2d 182 (Tex.Civ.App.-San Antonio 1960, writ dism'd w.o.j., 340 S.W.2d 481, Tex. 1960), at 185, 186:

"Since the famous case of Trustees of Dartmouth College v. Woodward, 4 Wheat 518, 4 L.Ed. 629, it has generally been conceded that the due process of law is 'A law which hears before it condemns, which proceeds upon inquiry and renders judgment only afterwards.'

" 'Due process of law' is required by both our Federal and State Constitution. The fourteenth amendment of our Federal Constitution provides, among other things, that:

" 'Nor shall any State deprive any person of life, liberty, or property, without due process of law.'

"Texas Constitution, Art. 1, § 19, Vernon's Ann.St. provides (see verbatim quote, supra). This applies to the legislature as well as the judicial branch of our State government. In 12 Am.Jur. p. 283, § 586 it is stated:

'The requirements of due process of law extend to every case of the exercise of governmental power. The limitations inherent in the requirements as to due process of law are binding equally on the United States and on the several states.

" 'A state may not by any of its agencies, legislative, judicial, or executive, disregard the constitutional prohibition. The inhibition includes all functionaries of state government, judicial as well as political.' ..."

Judicial courts have noted the mixture of powers possessed by Texas commissioners courts. Some of those powers are legislative, while others are executive, administrative, or judicial. Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968).

In its own opinion in Avery, 406 S.W.2d 422 (1966), the Texas Supreme Court observes, at 426:

"The county is a subordinate and derivative branch of state government .... The appellation 'court' is a misnomer in the accepted meaning .... The primary function of the commissioners court is the administration of the business affairs of the county .... Its legislative functions are negligible and county government is not otherwise comparable to the legislature of a state or to the federal Congress ...."

We conclude that while art. 5 § 18 of the Constitution empowers the commissioners court to redistrict the county, the execution of that authority must accord due process to the incumbents whose elective offices may be abolished.

Every arm of government having the authority and power to implement its decisions by taking away vested property rights must adhere to a fundamental principle of justice. That is, those rights may not be prejudiced without first giving the owner of those rights due notice and an opportunity to defend his rights. Masonic Grand Chap. of Order of East. Star v. Sweatt, 329 S.W.2d 334 (Tex.Civ.App.-Fort Worth 1959, writ ref'd n.r.e.).

Basic fairness and due process in this case would dictate notice to each duly elected and vested incumbent in advance of the hearings, informing of (a) the time, place and location of each hearing, (b) the specific subject matter to be considered, (c) the possibility that their vested offices may be terminated prematurely, (d) the absence of assurance that any incumbent would be allowed to retain office, (e) the possibility that none of the incumbents would be appointed to fill vacancies in offices for the new precincts, (f) the possibility that each would be denied the salary and benefits of office for the unexpired portion of his original term, and (g) the right to appear and defend their vested rights and to show cause why their offices should not be abolished prematurely without compensation. There is no evidence that such notice was given, either before or during any of the hearings.

A review of the evidence shows that the district attorney's office mailed letters to the appellees, informing them that the commissioners court had scheduled public meetings at certain times and places to consider redistricting the appellees' precincts.

Testimony also shows that notice of each meeting's agenda was posted as required by Tex.Rev.Civ.Stat.Ann. art. 6252-17 § 3A (1970), commonly called the Open Meetings Act.

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