Untitled Texas Attorney General Opinion ( 1952 )

PRICE DANIEL
.uT”RNEY
GENERAL
Hon. C. E. Patterson Opinion Ho. V-15052
County Attorney
Brewster County Re : Offlclal statue of a
Alpine, Texas county oommlssioner fol-
lowing hle convlctlon In
tedcral court for unlaw-
fully lmortlng oattle
Into the United States;!
wbre exeoution or ren-
DMr Slrl teme Is sumpended.
Your request ror our opl~lo~ reads in pnrt
as follower
“On the 7th day,of July, 1952, one of
*ho oaunty oomlrsloner6 0r .Br6wster Corulty
was oonvlated In the United States Dlstrlot
Court or Western District of Texes for lm-
porting oattle into United State0 unlawrullg.
It was ordered in the dudgment in said Court,’
same being upon a plea of guilty, and without
a juq, at9follows: 'It Is the order and oen-
tence of the Court that the defendant, . . . ,
for the offense by him committed, be imprisoned
for the period of ONE “1” YBAR and OHI (1) DAY
In en Institution to be derlgnated by the At-
torney Oeneral of the United States.’ Said
,judgment further provided: ‘And It appearing
to the Court th@ ~trheends of justloe and the
.best interests of the public, 86 well ae the
defendant, will be eubrerved thereby, It Is
further ordered th8t the*exeoutlon Of the
,eentenoe herein imposed be, and it is hereby
SUSPENDED and eald derendant released upon
.probatloa rOr a period or TWO (2) YEAR8 and
oommlttod to the oustody, oontrol amd ruper-
vision of Jerse J. Saxon, United Staten Pro-
bation Offlaer ror the Western DIE&riot of
Texao, upm, conditions provided in the orde?
M&his CouTt tradeand ,eAtered on Maroh P6th,
f . . .
‘.
Hon. C. E. Patterson, page 2 (V-1505)
u~UgSTION: Does this conviction In Federal
Court, whiah was suspended, bar and suspend this
County Commlsuloner rrom ,or?ice?
“Thla Commlarloner wa6 oonvloted under
Seatlon 545 or Title 18, USCA ror Illegal lm-
portatlon. This carries with It a msxinwp
pmalty or $5,000 and/or rive years."
Section 5 0r the Texas Election Code (V.A.T.~.
Election Code,.Art. ,1.05,)
prescriber the conditions on
which a perBOA shall be eligible to hold the office of
county c~lssloner. This statute reads, In part:
“No peruon shall be eligible to any State,
county, preolnct or munlclpal orrioe in this
State unless he shall be eligible to hold of-
floe under the Comstltutlon.of th1.r.State,...”
Section 2 or Article XV& C~omstltutlonor Texas,
provides :
“Laws shall be made to exclude from office,
aenlng on juries, and rrom the right of sur-
frage, those who may have been or ehall here-
arter be oonvloted of brlbary, perjury, forgery,
or other high orlmer. i..”
$%I8 constitutional provision contemplates that
persons convicted of “high crlmea” shall be lnellglble to
hold.orrlce In this State. Snodgrass v. State, 67 Tex.
Grim. 615, 150 S.W. 162, 177m12). In regard to the,
meaning ~of “other hi h crimes,” it was stated in Att’y
Oen. Op. O-2698 (1948):
“There would seem to’be no doubt that the
expresslon ‘other high crlmen’ would include
the erlme or burglary., Certainly any orlme of
the’same grade as the enumerated one@, namely,
felonler, Is comprehended by this provl6ioA of
the Constitution.”
The Legislature has Interpreted these words to
Include all’felonies, In the enaotment of Article 5968,
V.C.S., uhlch reads :
Hon. C. E. Patterson, page 3 (V-1505)
"All convictions by a petit jury of any
county officers for any felony, or ror any
misdemeanor Involving official m18oonduat,
shall work an immediate removal from office
or the officer so convicted. Naoh such judg-
ment of,ooaviction shall emb$y wItlIlaIt 8n
order remcxvlngsuch officer.
While Article 5968 may have been directed only
toward the Qrobedure to be followed In removing the ln-
dlvidual from public office when he is convioted In a
court of this State, It nevertheleee reflects the legls-
latlve Interpretation of the oon8tltutlonal provision.
A felony Is derlned ln Article 47, V.P.C.c':
*An orrense whloh may - not m8t - be
punishable by death or by aonflnmnt IA the
penitentiary 18 a felony; every other Offense
Is a misdemeanor."
Section 2 of Article XVI does not axpresely
confine the dl8quallfloatlon to otiviotionrrunder.the
law8 or this State, and It Is our 091~1on that it wan
not intended,to do 80. The same uonrrlderatlonsor Qub-
110 policy exist with respect to oonvlations obtained
IA ot@er jurlsdlctlon8 a8 with respect to convictions
under oursown laws. The fast that the Offen8e for Whleh
the person wa8 convicted did not fall wlthln the jurls-
diction or the courts or this State doe8 not leesen Its
gravity or render the guilty Individual any more fit to
uerve as a public orrioer.
An analogy 1s round In dl8quallfleatlon ror
Jury service and surfrage. Pursuant to the requirement
of this constitutional provision, the Legislature ha8
enacted laws excluding from jury semloe all persons con-
victed or a relony. Art. 213 v.c.s.~ Art@. 616, 619,
V.G.C.P. In Amaya v. State, iY7 Tex. Crlm. 160, 220 S.W.
98 (1920), the oourt rejeoted the contention that the
conviction murt have been obtalmed In a oourt of this
State, In the followlng language:
" The reason' whloh umderllea 8uae
or tM;e'&es la that Tie
t jUdglwAt la a orlm-
lnal ca8e oanaot br enforced 18 sllotherjurlr-
diction. This prlmclple eeemn AOt ooatrolllng
In thir state, In that the object of the Legls-
lature appears to be not the Qunlahment of the
Hon. C. E. Patterson, page 4 (V-1505)
oonvloted Juror, but the protection of sooletp
against the pollution of the jury system by
oommlttlng Its execution to persona whose moral
status has been judicially ertabll8hed as orim-
lnal. . . .*
The dlsquallrlchtlon results even though the uraagful
act would not have aonst1tuted.a felomy,under the laws
0r Texas. Hu es v. State, 105 Tex. Crlm. 57, 284 S.W.
952 (1926).A+ so see eer v. State 109 S.W.2d 1150,
1154 (Tex.Clv.App. 193 , error dl8n.j; CisAeros v..State,
147 Tex. Crlm. 123, 179 S.W.2d 31 (194~1 Slmll-lY*
In Rarwell v. Norris, 143 S.W.2d ilOg (Tax: Clv. APQ.
194bl It h ld chat a person oonvloted or am orrense
whlch*waq 2.L "Brelony by federal statute was dl8qUfIll-
fled to vote.
The federal statute under which the county com-
&sslone~ was convicted (18 U.S.C.A. 0 545) provider In.
,,part:
“Whoever lrnowlnglyand willfully, with IA-
tent to derraud the United States, smuggles, or
clandestinely Introduces Into the United States
any merchandlee which should have been lnvoloed,
or makes Out or passes, or attempts tO.Qa88,
through the ourtomhouse any ralse, rorged, or
fraudulent invoice, or ‘other dooument or Paper;
or
"Whoever fraudulently or knowingly imports
or brings Into the United States, any merchandise
aontrary to law, or receives, conceals, buys,
sells; or in any manner facllltates the trans-
portation, concealment, or sale of rruchmerchan-
dise after wortatlon, knowing the s8me to have
been Imported or brought Into the Unlted States
contrary to law -
"Shall,be rined not more than $5,000 or Ins-
prl8oAed AOt more than two years, or both.”
It 18 provided IA 18 'U.S.C.A.@lthat "any o?-
renae punishable by death or pprloonment for a term ex-
ceeding one year’Is & felony. Clearly the orrense aom-
mltted was a felony as detlned by both.the state 8aad the
rederal statute@.
Hon. C. E. Pattereon, page 5 (v-1505)
Passing next to the question of the effect or
the stipensloa or the exeoutlon of rentenoe, in Att’p
Oen. Og. O-2698 (1940) It was held that the word “con-
victed In Seation 2 of Article XVI *eabra.oesthe status
resulting from the application of the suspended.sentenoe
law of Texas to a verdict aecertalning and Qubll8hlng
the ilt or 8 person charged with a orlmlaal orrense.m
Under the Texas law a convletlon Is not a final one
where the sentenoe is SuSpended. Art. 778, V.C.C.P.;
Blerman v. State, 73 Tex. Crln. 284, 164 S.W. 840 (1914).
yet this ovlnlon held that the defendant nevertheless
has been "~onrloted" and le thereby rendered Ineligible
to hold orrice. However, It Is not necessary to rest
our answer on the reasoning of that opinion. Under fed-
eral law, a m&ment of convlotlon Is final where -sen-
tence 18.lmp&e&, even though th8 exeoutlon of the sen-
tence Is suspended. Berman v. Unflbed States, 302 U.S.
211 (1937). IA OUT Oij binion, unquestionably there has
been a convlctloa In the present cane within the meaning
of Section 2, Article XVI or the Constitution.
Slnoe It is our conolualon that a rlnal con-
vlotlon of a relonqiin a tederal oourt renders a person
InelIgIble for public orrloe under Section 2, Article
XVI of the Cormtltutlon, you are advlsed that the county
commlrsloner Is now dlsquallflad to hold that office.
It remains for us to oonslder whether the con-
viction resulted In an automatlo removal from orfloe.
Here, the offloer was contilctedupon a plea of guilty
without the Intervention of a jury. The an8wer to this
question turn8 on the aQQliCabillty of Article 5968,
V.C.S., quoted above. Thls,statute provide8 that "all
convlations by a petit jury of any county offloers for
any felony . . . shall work an immediate removal from
office of the orficer so convlated.” It further pro-
vides that the judgment ot aonvlctlon shall embody within
It an order or removal.
As, we have stated, this statute may have been
lntended,to operate only In cases of oonvlotlon by a
06ul'tOr this State, SIAM it 18 ObviOuS that the COm-
mand for lnoluslon In the judgment of 8m order removing
the officer could not be Imposed on cOurt8 Of other
$U'iSdiOti~S. Be that as it may, In Att'y Gen. Op. O-
2619 (1940) It was he~ld t&t a oonvlctlar In a 8tate
court upon 8 plea 0r guilt7 where a Jury *a8 wtived did
not autoratlcally remove the oriloer. IA 0oa0tru1ng
Article 5968, this oplnlOn stated:
Hon. C. E. Pattereon, page 6 (V-1505)
“The above statute speaks only oi con-
victions by pe$it juries, perhaps because when
It beceme law there could be no oonvlatlon of
a felony except upon a jury trial. Article lOa,
C.C.Pi, glvlng’to the defendant the right to
,walve a jury In a felony case lesr than oapltal,
upon a plea or guilty and with the aoaeent or
the Dlstrlat Attorney and of the Court, was”not
enaoted until 1931. We are more inclined to
think, however, that in passing Article 5968,
with lta requirement of a jury convlctlon, the
Legislature had in mind Section 24, of Artlole
Thw;r the State Constitution, reading au rol-
:
” ‘County Judges, county attorneys, clerks
or the Dletrlct and County Courts, juetlcee or
the peace, constables, and other county orricers,
>may be removed by the Judges or the District
Couds for incompetency, official mieconduct,
habitual drunkenness, or other causes defined
iby: law, upon the.cause thereror being set forth
IA writing and the finding or ite truth by a
jury. I”
While we think there Is argument for reach1 a conalu-
slon that neither Article 5968 nor Seotlon “$
2 , Article V,
of the Constitution makes a jury verdict neoessary where
the defendant has elected to waive a jury, we are not
strongly enough convinced or the correctness of that
view to warrant overruling this opinion. We therefore
hold that the orrlcer wae not automatloally removed rrom
drrlce by the conviction in federal court without a jury,
but that he 18 subject to removal through f’urtherpro-
ceedings in a dlatrlot court of this State, aa ret out
In Section 24 or Article V or the Constitution.
Article 6253, V.C.S., provide8 that a quo war-
ranto proceeding may,be Instituted for ousting any public
officer who unlawrully holds any orr’iaeor who “shall
have done or surfered any act which by law works a for-
feiture or hi6 orrice.” We are or the opinion that this
procedure Is available in the prerent aane, We~,iwealeo
0r the opinlcn that a proaeetllngror removal c0usa likely
be had under Article 5970 et rreq.,V.C.S. In this con-
nection your attention Is directed to the fact that Artl-
Cle 5970 enumerates certain apeclric oauser,ror removal,
which a0 not inalude “other oauses aerinea by law," a8
HOA. c. E. PatterBOn, Page 7 (v-1505)
rtat&$in~Art%cle V, Section 24 or the Constitution.
However, we think It likely that a court would hold
this proaulure available; by virtue of the oomtitu-
tlonal provision, where the judepaent0r aoavlotlon ala
not itseli remove the crricer.
SUMMARY
.
iiCo&~ OOA8li88iOn& who 18 OOWiO$ed’ ”
or a felony In rederal aourt ana.a88esseu.a
sentence, the execution or which IS 8u8Pende4,
la ui8qUaliried to 8erve a8 oounty commls8lanar
ma i8,8UbjeCt to reroval from orriae by quo
warrant0 proc&eUings under Article 6W, V.C.S.
APPRCVRDr Your8 very truly,
.
B. Jacobson PRICB DAR=
Reviewing Ji88~18iant Attormey General
Char108 Q. Nathewr
b&'Et A88i8tWit Aa8lUtaWt
m:rrt
:
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