Untitled Texas Attorney General Opinion ( 1962 )

April 2, 1962
Xi. Frank J. Baughman
District Attornev Cuinion No. WW-1299
47th District "
Amarillo, Texas Re: If Justices of the Peace
and City Judges fail to
report all traffic con-
victions to the Department
of Public Safety, what
procedure should be
followed in enforcing
Section 152 of Article
6701d, Vernon's Civil
Statutes, and related
Dear Mr. Baughman: question.
By letter you request our opinion on the following
subjects: What procedure should be followed in enforcing
Section 152 of Article @Old, Vernon's Civil Statutes, which
requires all justices of the peace and city judges to report
all traffic convictions to the Department of Public Safety;
and what state or county office is charged with responsibility
for enforcing this section?
Section 152 of Article 670ld, Vernon's Civil Statutes,
in part,reads as follows:
"(a) Every magistrate or judge of a
court not of record and every clerk of a
court of record shall keep a full record of
every case In which a person is charged with
any violation of this Act or of any other law
regulating the operation of vehicles on high-
ways.
"(b) Within ten (10) days after con-
viction of fiflforfelture of bail of a person
upon a charge of violating any provision of
thi.sAct or other law regulating the operation
of vehicles on highways, every said magistrate
of the court or clerk of the court of record
in which such conviction was had or bail was
Mr. Frank J. Baughman, page 2 (WW-1299)
forfeited shall pre are and immediately forward
to the department PDepartment of Public Safetg
an abstract of the record of said court covering
the case in which said person was so convicted
or forfeited bail, which abstract must be cer-
tified by the person so required to prepare the
same to be true and correct.
"(c) Said abstract must be made upon a
form furnished by the Department fif Public
Safetg . . .
II
. . .
"(e) The failure, refusal, or neglect of
any such judicial officer to comply with any of
the requirements of this Section shall constitute
misconduct in office and shall be grounds for
removal therefrom."
Pursuant to Article 5970:
"All district and county attorneys, . . .
justice of the peace and all county officers
now or hereafter existing by authority either
of the Constitution or laws, may be removed
from office by the judge of the district court
for incompetency, official misconduct or
becoming intoxicated by drinking intoxicating
liquor, as a beverage, whether on duty or
not; . . .'
Article 5973 defines "official misconduct" with
reference to county officers as:
1, .any unlawful behavior in relation to
the du&& of his office, willful In its character,
of any officer Intrusted in any manner with the
administration of justice, or the execution of
the law; and includes any willful or corrupt
failure, refusal or neglect of an officer to
perform any duty enjoined on him by law."
The word "willful" as used in this statute was defined in
Reeves v. State, 258 S.W. 577, 582.(civ. App. 1924, reversed
on other grounds, 267 S.W. 666), as follows:
. -
Mr. Frank J. Baughman, Page 3 (WW-1299)
9,
. . .The word 'willful' is used in the
sense of a conscious and intentional failure
or refusal to perform or keep inviolate any
duty imposed upon the officer by law. . . ."
By virtue of this statute and Section 152 (e) of
Article 6701d, failure or refusal to report traffic convictions
required by Section 152 would constitute misconduct of office
and subject a justice of the peace to an action for removal
from office.
Articles 5976-5986 relate the procedure to be
utilized in a removal suit. This procedure for removal of
elective county officials is exclusive. State v. Harney,
164 S.W.2d 55 (Civ. App. 1942, error ref. w.o.m.).
In State v. Starnes,246 S.W. 424 (Clv. App. 1922)
the Court, referring to Article 5970, held that sLnce Article
5977 provides for removal proceedings to be conducted in the
name of the state, consent or assistance of the county or
district attorney of the particular jurisdiction is required
by virtue of the requirements of Section 21, Article V of the
Constitution of Texas. The Court cited Staples v. State, 112
Tex. 61, 245 S.W. 639 (1922), as controlling on this point and
as supporting its opinion.
Section 7, Article XV, Constitution of Texas, which
declares that the Legislature shall provide for the trial and
removal of all officers of the State, does not apply to muni-
cipal officers. 30 Tex. Jur. Sec. 119, p. 223; see Bonner v.
p;"er-;;;f, 104 Tex. 432, 138 S.W. 571 (lgll), affirming 13.f
Grants of power of removal from office are to be
strtctly construed, and whatever is not given in unequivocal
terms is withheld. This 1s especially true In the case of
cities incorporated by special Act of the Legislature. Diffle
v. Cowan, 56 S.W.2d 1097 (Civ. App. 1932).
Volume 30 of Texas Jurisprudence, pages 22X-233,
discusses this problem in some detail. These pages stress
that the particular law or charter provision of the city or
town involved controls the removal of municipal officers.
Since no particular municipality is mentioned in the request
for opinion, no further opinion is here given as to what re-
moval procedure, if any, may be utilized where a corporation
court judge fails or refuses to provide the information required
by Section 152 of Article 6701d.
Mr. Frank J. Baughman, page 4 (WW-1299)
SUMMARY
Failure or refusal of a justice of the peace
or corporation court judge to report traffic
convictions, as required by Section 152 of
Article 6701d, Vernon's Civil Statutes, con-
stitutes misconduct in office. An action to
remove a justice of the peace for misconduct
in office may be brought pursuant to Article
5970 et. seq., Vernon's Civil Statutes.
Very truly yours,
WILL WILSON
Attorney General of Texas
By Assistant
F...R~.
Booth .~
FRB:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Henry Braswell
Bill Pool
Bob Shannon
Leon Pesek
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.