Untitled Texas Attorney General Opinion ( 1974 )

TWEA~TORNEYGENERAL
OF TEXAS
Auwrx~. T- 78711
February 13, 1974
The Honorable Ted Butler Opinion No. H- 227
Criminal District Attorney
Bexar County Re: Whether Justice of the Peace,
San Antonio, Texas 78204 convicted of felony and suspended
pending appeal, under Article 5969,
is entitled to emoluments of office
during appeal.
Dear Mr. Butler:
Your letter requesting our opinion advises that a Justice of the Peace has
been found guilty of a felony involving official misconduct and was “removed”
from office on that date by the district judge presiding over the trial. The
conviction is now on appeal.
Essentially, you ask two questions:
(1) Is a Justice of the Peace, convicted of a felony
and “removed” from, office pending appeal of said
convictions pursuant to Article 5969, V. T. C. S. ,
entitled to the emoluments of office while the appeal
is pending?
(2) #I[Slhould the criminal case be reversed upon
appeal, would the county then be obligated to pay
the withheld salary to the Justice of the Peace?”
The office of Justice of the Peace is a constitutional one with a constitu-
tionally prescribed term of four years. Article 5, $18, Constitution of Texas.
As such its holder may be removed from office only in accordance with consti-
tutional provisions. Attorney General Opinions H-72 (1973), H-220 (1974).
Article 5, Section 24 of the Constitution provides that:
p. 1059
The Honorable Ted Butler, page 2 (H-227)
I,
. . [ Jlustices of the peace. . . and other county
officers, may be removed by Judges of the District
Courts for incompetency, official misconduct, habit-
ual drunkenness, or other causes defined by law,
upon the cause therefor being set forth in writing and
the finding of its truth by a jury. ”
The applicable statutes are Articles 5968 and 5969, V. T. C. S.
Article 5968, V. T. C. S., provides in part:
“All convictions by a petit jury of any county
officers for any felony. . . shall work an immediate
removal from office of the officer so convicted. Each
such judgment of conviction shall embody within it an
order removing such officer. ”
The “immediate removal” of Article 5968, however, is qualified by
Article 5969, V. T. C. S., which provides:
“When an appeal is taken from such judgment
by the officer removed, such appeal shall have the effect
of superseding such judgment, unless the court rendering
such judgment shall deem it to the public interest to
suspend such officer from the office pending such appeal;
and in that case the court shall proceed as in other cases
of the suspension of officers from office as provided
herein. ”
Pursuant to Article 5969, Texas Courts of Civil Appeals have held in
several instances that the appeal of a conviction effectuates a suspension of
removal. In Leonard v. Spkkr, 48 S.W.2d 474 (Tex. Civ. App. Galveston
1932 err. dism. ), the court held that, pending the appeal, the convicted officer
is permitted to continue to perform the duties of his office unless the convicting
court makes the finding of public interest required by Article 5969. The Court
stated:
p. 1060
The Honorable Ted Butler, page 3 (H-227)
“It is evident that the court rendering the
judgment of suspension of the convicted officer pending
the appeal is authorized to do so by the prov,isions of
article 5969 only. and then only for the protection of
the public interest against the menace of a convict.ed
officer in performance of the duties of a public office.
It is also evident, we think, that such was the purpose
and intent of the Legislature in the enactment of Article
5969, conferring upon a court power to suspend the
officer referred to in said article. ” (48 S. W. 2d at
476)
Similarly, the Court of Civil Appeals held in Garcia v. Tobin, 307 S.W.2d
836 (Tex. Civ. App., San Antonio, 1957) affm’d, 316
S. W. 2d 396, t~hat an
officer, convicted in federal court of a felony, who had appealed his conviction,
was not rendered ineligible to hold public office pending the outcome of the
appeal.
Unless an appealing officer. has been suspended in accordance with Article
5969, he is entitled to the emoluments of office. “To entitle a person to recover
the emoluments of an office, he should show that he is an officer de jure, that
the office has been legally created and is in existence, and that he has been
legally placed therein and has a legal right thereto. ” 47 Tex. Jur. 2d, Public
Officers, § 163, p. 207. And see Attorney General Opinion WW-1064 (1961).
Pursuant to Article 5969, conviction of a felony, without more, does not
remove the legal right of an officer to his office and its emoluments if an appeal
has been taken and if the additional steps have not been t.aken by the court to
suspend such officer pending his appeal. It makes no difference that he has
failed to perform the duties of office since his conviction.. because il[t]he salary
or emoluments are incident to the title to the office and not to its occupation or
the performance of official duties, ” 47 Tex. Jur. 2d, Public Officers, $163,
p. 208; Beard v. Decatur, 64 Tex. 7 (1885); City of Houston v. Estes, 79 S.W.
848 (Tex. Civ. App. 1904, error ref’d).
The statutes are silent as to the answer to your second question which
concerns automatic removal upon conviction of a felony and a suspension,from
po 1061
The Honorable Ted Butler, page 4 (H-227)
office under Article 5969. However provision is made in Article 5982-b V. T.
C: S. for the compensation of an officer, removed by judcial proceeding under
Article 5970 and later found on appeal to be entitled to his office.
In our opinion, if the conviction is reversed on appeal--having the effect
of no conviction at all--the officer removed automatically by the conviction in
the first place and later reinstated when the conviction was set aside, should
be entitled to the emoluments of his office as if he had never been removed,
unless during the intervening period something else had occurred to deny him
the right thereto.
SUMMARY
A Justice of the Peace, convicted of a felony
involving official misconduct, who appeals the conviction.
is entitled to the emoluments of office pending the appeal,
unless the convicting court finds that it is in the best
interest of the public to suspend him, in which case he
gets nothing.:.;Inthe latter situation, if the conviction of ~: c
the Justice ,oftbe. Peace is set aside on appeal, he will j :.~
be entitled to be compensated for the period of suspension
assuming there is no other reason why he should not be
paid.
Yours very truly,
Attorney General of Texas
Opinion Committee
p. 1062