Tobin v. Garcia

• Decision Date: 30 April 1958
• Docket Number: No. A-6632,A-6632
• Citation: 316 S.W.2d 396,159 Tex. 58
• Court: Texas Supreme Court
• Parties: Daniel TOBIN, Jr., et al. v. Amando GARCIA, Jr., and George B. Parr.

Page 396

316 S.W.2d 396

159 Tex. 58

Daniel TOBIN, Jr., et al. v. Amando GARCIA, Jr., and George B. Parr.

No. A-6632.

Supreme Court of Texas.

April 30, 1958.

Rehearing Denied Oct. 1, 1958.

Concurring Opinion Oct. 16, 1958.

Gerald Weatherly, Laredo, Werner A. Gohmert, Alice, for petitioners.

Sidney P. Chandler, Corpus Christi, Sam H. Burris, Alice, Walter Purcell, San Diego, for respondents.

HICKMAN, Chief Justice.

Our statement of this case will be substantially in the language of the opinion of the Court of Civil Appeals.

This is a consolidated case. Originally Amando Garcia, Jr., brought a suit against Daniel Tobin, Jr., County Judge of Duval County, and the then four County Commissioners of that County, seeking, among other things, a writ of mandamus requiring the defendants to issue to him a certificate showing that he was elected to the office of County Clerk of Duval County at the General Election in November, 1956, at which election he received practically all the votes. On January 1, 1957, Rafael Garcia qualified as County Clerk of Duval County, under an appointment by the Commissioners' Court of that County, which had declared the office vacant, and thereafter this became a suit between Amando Garcia, Jr., and Rafael Garcia for the office of County Clerk of Duval County.

Likewise, George B. Parr originally brought a suit against Daniel Tobin, Jr., and the County Commissioners, seeking, among other things, a writ of mandamus requiring the defendants to issue to him a certificate showing that he was elected to the office of Sheriff of Duval County at the General Election in November, 1956, at which he received a substantial majority of the votes. On January 1, 1957, J. P. Stockwell qualified as Sheriff of Duval County under an appointment by the Commissioners' Court of Duval County, which had declared the office vacant, and thereafter that cause became a suit between George B. Parr and J. P. Stockwell for the office of Sheriff of Duval County. These two cases were consolidated by the trial court with a third suit filed by Felipe Valerio, Jr., against Daniel Tobin, Jr., and others. The Valerio case (Tobin v. Valerio, Tex.Civ.App., 309 S.W.2d 479) is not involved in this appeal and need not be further mentioned.

Ultimately, Amando Garcia, Jr., and George B. Parr filed motions for summary judgment, and the defendants also filed a motion for summary judgment. The trial court denied the motions of Amando Garcia, Jr., and George B. Parr, but granted the motion of defendants, and rendered judgment that George B. Parr and Amando Garcia, Jr., take nothing, from which judgment they prosecuted an appeal.

The Court of Civil Appeals reversed the judgment of the trial court, and remanded the case thereto. 307 S.W.2d 836. The parties will be sometimes referred to herein as they were designated in the trial court, wherein Amando Garcia, Jr., and George B. Parr were designated as plaintiffs and the other parties as defendants.

Both the plaintiffs and defendants filed applications for writs of error. We consider first the application of the defendants. The ground upon which they were awarded a summary judgment in the trial court is that Amando Garcia, Jr., and George B. Parr were ineligible to hold the offices of County Clerk and Sheriff, respectively, under the provisions of Article III, Section 20, of our State Constitution, Vernon's Ann.St. That section reads as follows:

'No person who at any time may have been a collector of taxes, or who may have been otherwise entrusted with public money, shall be eligible to the Legislature, or to any office of profit or trust under the State government, until he shall have obtained a discharge for the amount of such collections, or for all public moneys with which he may have been entrusted.'

The Court of Civil Appeals reversed the trial court's judgment on the ground that the constitutional provision presupposes that there has been a prior judicial determination or admission of the entrustment of public money and a failure to obtain a discharge therefor. Assuming that the Commissioners' Court exceeded its authority in refusing to issue certificates of election to the plaintiffs, that is not determinative of this case. As the case developed, it was a suit by Amando Garcia, Jr., and George B. Parr against Rafael Garcia and J. P. Stockwell for the title to the offices of County Clerk and Sheriff, respectively, and in order to prevail in that suit it was incumbent upon them to show themselves to be duly elected, qualified and eligible to hold the offices which they sought. If it is shown on the trial that they have failed to be discharged of money entrusted to them, they will not have shown themselves eligible and entitled to the offices. We do not agree with the ground upon which the Court of Civil Appeals based its decision.

Before considering the motion upon which the trial court rendered a summary judgment for defendants, we turn to a construction of the constitutional provision above quoted. The provision is narrow in its application. It deals only with persons with whom public money has been entrusted. One who, for example, steals public money would be morally unfit for public office, but the provision has no application in that case. Its meaning is to be determined by the definition of 'entrusted.' That term has a well-defined meaning. It is defined in Black's Law Dictionary as:

'To confer a trust upon; to deliver to another something in trust or to commit something to another with a certain confidence regarding his care, use or disposal of it.'

Ballentine's Law Dictionary defines it as follows:

'To transfer or deliver property to another to hold as trustee.'

In effect, the same definition is given in 48 C.J.S. p. 754, and Webster's New International Dictionary. In order to render judgment against the plaintiffs it must be determined that public money was entrusted with them in the meaning of the above definition, and they have failed to obtain a discharge therefor.

The motion for summary judgment was not verified. It referred for identification to a number of exhibits attached to the motion, explained a portion of the exhibits, and incorporated all of the movant's pleadings.

With respect to Amando Garcia, Jr., the charge is that he collected certain fees of office which were not paid into the treasury of the county as required by law. In support of the charge, movants attached purported copies of summary accounts of total fees collected and purported copies of schedules of fees of office paid into the treasury for the same years, plus photostatic copies of 194 checks payable to cash or to Garcia and signed by him. The only proof of these documents is this statement in the affidavit of the attorney for defendants: 'All of the copies of the instruments described in the defendants' motion for summary judgment, Exhibits A to T, inclusive, are true copies of said instruments or the records from which they were taken.' The summary judgment rule, Rule 166-A, Texas Rules of Civil Procedure, provides that affidavits must be made by competent affiants with personal knowledge of the statements in them, which statements must be so worded that if given on the witness stand they would be admissible as evidence. Obviously, the statement of the attorney, if given on the witness stand, would not be competent to identify public documents, nor would it establish that Garcia himself had signed the checks or for what purpose they were executed. The trial court erred in rendering summary judgment against Garcia.

With reference to George B. Parr, the motion for summary judgment was based upon several grounds. One ground was that the Texas State Bank of Alice was the depository of the funds of Duval County and the Benevides Independent School District; that Parr was a stockholder, director and officer of the bank; that he took money from the bank, charged it to the county and the school district, and applied same in a manner not authorized by the county or the school district, and not permitted by law. As noted above, the motion is not verified, and what has been held regarding the checks of Garcia is applicable to the deposit slips and checks attached in support of this allegation. Even if the checks were identified, that would not establish that Parr was in default with money entrusted to him by the county and the school district. When the moneys were deposited in the bank, a relationship was created between the bank and the depositors, and no relationship of trust was created between the depositors and Parr. The summary judgment cannot be sustained on the ground of Parr's dealings with the bank, however wrongful they may have been.

Another ground of the motion was that Parr had borrowed money from the county and had not repaid it. Parr admitted at the hearing on the motion that he owed money to Duval County, but he did not admit that it was money entrusted to him. So far as the record discloses, it may have been owing for taxes. In support of the allegation that Parr borrowed money from Duval County which had not been repaid, the defendants in one of their verified pleadings quote from an alleged deposition of Parr and alleged pleading of Parr in other cases, but no copy of the alleged deposition or pleading was attached as required by Rule 166-A. The state of the proof on this charge would not warrant the rendition of a summary judgment.

Another ground in the motion was that if Parr's present suit were in good faith 'he would repay to Duval County all funds that while County Judge of Duval County he illegally took, received, concealed, converted, and paid to persons such as Dan U. Garcia, whom Parr paid $20,000.00 on or about April 1, 1952, of Duval County funds to induce said Dan U. Garcia to resign as Sheriff of Duval County so said Parr could be appointed to said office upon his resigning as County...