Untitled Texas Attorney General Opinion ( 2012 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 18,2012
The Honorable John Whitmire Opinion No. GA-0933
Chair, Committee on Criminal Justice
Texas State Senate Re: Whether a constable who was convicted of a
Post Office Box 12068 felony but whose conviction was finalized only
Austin, Texas 78711-2068 after he was reelected to a new term automatically
vacates his office (RQ-I0 16-GA)
Dear Senator Whitmire:
You write to ask several questions regarding the removal from office of a constable finally
convicted of a felony.! You state that the Precinct Five Hidalgo County Constable (the "Constable")
was convicted of a third degree felony in 2006. See Request Letter at 1. You indicate that the trial
court's judgment ordered that the Constable "be removed from ... [0 ]ffice" under section 87.031
of the Local Government Code. [d. (quoting Judgment of Conviction by Jury and Order of
Community Supervision). You also tell us the trial court suspended the Constable during the
pendency of his appeal pursuant to section 87.032 of the Local Government Code. See id.; see also
TEX. Lac. GOV'T CODE ANN. § 87.032 (West Supp. 2011) (providing that the "appeal supersedes
the order of removal unless the court that renders the judgment finds that it is in the public interest
to suspend the officer pending the appeal"). You tell us further that the Constable appealed his
conviction all the way to the Supreme Court of the United States. See Request Letter at 1.
You note in your request letter that during his appeals the Constable retired from his position
and that an interim constable was appointed by the Hidalgo County Commissioners Court. See id.
You also note that during his appeals the Constable successfully ran for reelection in 2008 to a new
term commencing January 1,2009. See id. You recite that the Constable submitted a new oath of
office and the required bond but that the Hidalgo County Commissioners Court did not and has not
approved the bond. 2 See id. Finally, you state that the "Supreme Court of the United States denied
the Constable's [petition for] writ of certiorari on February 22, 2011 thus finalizing the Original
Judgment and felony conviction." [d.; see Bazan v. Tex., 131 S. Ct. 1482 (2011).
! See Letter from Honorable John Whitmire, Chair, Senate Comm. on Criminal Justice, to Honorable Greg
Abbott, Tex. Att'y Gen. at 2 (Nov. 10, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").
2See TEX. CONST. art. XVI, § 1 (requiring oath of office); TEX. Loc. GOV'TCODE ANN. § 86.002 (West 2008)
(requiring constable to take constitutional oath of office and to execute a bond).
The Honorable John Whitmire - Page 2 (GA-0933)
You ask several questions regarding the possible vacancy in the Precinct Five constable
office. See Request Letter at 2. You first ask:
Does the finalization of a conviction, a conviction which was
originally rendered prior to a Constable's re-election for the office,
remove the Constable from the office to which he was re-elected as
a matter of law, requiring no official action and thus creating a
vacancy for such public office?
Id. 3 Section 87.031 of the Local Government Code provides that "[t]he conviction of a county
officer by a petit jury for any felony ... operates as an immediate removal from office of that
officer." TEX. Loc. GOy'T CODE ANN. § 87.031(a) (West 2008). At the same time, section 87.001
provides that "[a]n officer may not be removed under this chapter for an act the officer committed
before election to office." Id. § 87.001. With the Constable now in a new term, your question asks
us to determine whether section 87.001 prohibits the removal of the Constable under section 87.031
for a conviction arising from an illegal act committed prior to the new term. The Texas Supreme
Court, considering this very Constable's case, has held that section 87.001 does not prohibit the
Constable's removal under section 87.031. See In re Bazan, 251 S.W.3d 39, 44-45 (Tex. 2008)
(construing section 87.001' s limitation to pre-election acts to apply to only the civil removal
proceedings in chapter 87). The Court in Bazan noted the different constitutional sources behind
section 87.001 and section 87.031: It observed that section 87.001 derives from article V, section
24, and that section 87.031 stems from article XVI, section 2. See id. The court distinguished article
V, section 24, which provides for the removal of specified officers for official misconduct, from
article XVI, section 2, which excludes persons convicted of high crimes from holding office. See
id. It concluded that because "the constitution makes no allowance for high crimes that predate an
officer's election, section 87.001' s limitation for prior acts can only refer to official misfeasance that
is, itself, not disqualifying and thus is prosecuted in a civil removal proceeding." Id. at 44.
Absent the limitation of section 87.001, we consider whether the removal of a convicted
officer after all appeals have been exhausted is automatic as a matter of law. By its plain language,
section 87.031 states that the conviction of a county officer by a petit jury for any felony operates
as an immediate removal from office of that officer. See TEX. Loc. GOy'T CODE ANN. § 87.031(a)
(West 2008). Though various Texas courts of appeals have issued differing decisions about the
formal requisites of a removal under subsection 87.031(a), the courts do not disagree that in the
event there is a final judgment of conviction, the removal from office after conviction is automatic.
See Trevino v. Barrera, 536 S.W.2d 75, 77 (Tex. Civ. App.-San Antonio 1976, orig. proceeding)
("The removal, according to the statute, results automatically from the fact of conviction, and not
from the recital in the judgment which merely reflects the effect of such conviction."), Eckels v. Gist,
743 S.W.2d 330,332 (Tex. App.-Houston [1st Dist.] 1987, orig. proceeding) (concluding that the
word conviction in subsection 87.031(a) requires a final judgment entered on the verdict of guilty);
see also Leo v. Mancias, 885 S.W.2d 268, 270 (Tex. App.-Corpus Christi 1994, orig. proceeding)
(construing section 201.024 of the Election Code to require a final judgment before an office is
considered vacant). Further, the Election Code provision governing the time a vacancy in office
3We assume that by "finalization of a conviction," you mean judgment of conviction followed by the exhaustion
of all available appeals.
The Honorable John Whitmire - Page 3 (GA-0933)
occurs provides that "[i]f an officer is removed from office by a court or other tribunal, a vacancy
occurs on the date the judgment becomes final." TEX. ELEC. CODE ANN. § 201.024 (West 2003).
While a final judgment of conviction from the trial court is normally sufficient to trigger an
automatic vacancy, section 87.032 provides that an appeal of the conviction supersedes the removal
unless the trial court orders otherwise. See TEX. Loc. Gov'T CODE ANN. § 87.032 (West Supp.
2011). Because you tell us that the Constable has exhausted all available appeals, that provision no
longer applies. Accordingly, an officer's removal due to a final felony criminal judgment of
conviction is automatic and effective as a matter of law, thus creating a vacancy for the office
without need offurther official action. 4 Because of our conclusion here, we do not address your last
question, which involves an alternative avenue to remove the Constable. See Request Letter at 2.
Your remaining question involves the constitutional holdover provision. See id. at 2 (citing
article XVI, section 17, Texas Constitution). Article XVI, section 17, provides that "[a]ll officers
within this State shall continue to perform the duties of their offices until their successors shall be
duly qualified." TEX. CONST. art. XVI, § 17. You suggest that the failure of the commissioners
court to accept the Constable's bond after his election to a new term in 2008 means that the
Constable was not a "duly qualified" successor such that the interim constable, as the "person
appointed to complete the term prior to 2008 election, [holds] over to the new term." Request Letter
at 2. The issue concerning the commissioners court's acceptance of the Constable's proffered bond
is not dispositive. This office has recognized that if a person who is elected to an office does not
complete a step necessary to qualify for the office, the person may still be a de facto officer. Tex.
Att'y Gen. LO-96-056, at 2. A de facto officer is "one who acts under color of a known and valid
appointment, but has failed to conform to some precedent requirement, as to take the oath, give a
bond, or the like." See id. (citing Williams v. State, 588 S.W.2d 593,595 (Tex. Crim. App. [Panel
Op.] 1979». "Determining that someone is a de facto officer requires the resolution offact questions
.... " Id. (citing Henry v. State, 828 S.W.2d 312, 314-15 (Tex. App.-Fort Worth 1992, writ
ref' d». To the extent the Constable may have been the de facto officer upon his election in 2008,
there would have been no open office to which the interim constable could hold over. Because the
determination about the Constable's de facto officer status involves fact issues that we cannot
resolve, we cannot answer your question. See id. at 3 ("Whether the de facto doctrine will apply in
a given case is a fact question that cannot be resolved in an attorney general opinion."). Moreover,
we believe the question is now moot because the person who had been appointed interim constable
was recently appointed constable5 in his own right for the remainder of the term ending December
31,2012. See Tex. Att'y Gen. Op. Nos. GA-0334 (2005) at 11 (declining to address moot
questions), GA-0159 (2004) at 5 (same).
4Under the Election Code, such a felony conviction also serves to disqualify the person from holding future
public elective office. See TEX. ELEC. CODE ANN. § 141.001(a)(4) (West 2010) ("To be eligible to be a candidate for,
or elected or appointed to, a public elective office in this state, a person must: . . . (4) have not been finally convicted
of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities .... ").
5See Press Release, The County of Hidalgo, Texas, Daniel Marichalar Sworn in as Pet. 5 Constable (Nov. 17,
2011) (on file with the Opinion Committee). We also understand that the Precinct Five constable's office has been
abolished with the newly appointed constable serving until December 31,2012. See Brieffrom Honorable Rene Guerra,
Hidalgo Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 3 (Dec. 9, 2011) (on file with the Op.
Comm.).
The Honorable John Whitmire - Page 4 (GA-0933)
SUMMARY
Under the Texas Supreme Court opinion In re Bazan, a
constable who was convicted of a felony but whose appeals were
exhausted only after he was reelected to a new term is removed from
office pursuant to subsection 87.031(a) of the Local Government
Code.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee