Terry Ross v. N. Lane Akin ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00128-CV
TERRY ROSS APPELLANT
V.
N. LANE AKIN APPELLEE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
TRIAL COURT NO. CV12-06-414
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MEMORANDUM OPINION1
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I. INTRODUCTION AND FACTUAL BACKGROUND
This is a summary-judgment appeal. Appellant Terry Ross, who was
County Commissioner of Precinct Four in Wise County, was indicted for and
pleaded guilty to the Class B misdemeanor offense of “Abuse of Official
Capacity.” See Tex. Penal Code Ann. § 39.02 (West 2011). Subsequently,
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See Tex. R. App. P. 47.4.
pursuant to the provisions of subchapter C of chapter 87 of the Texas Local
Government Code, Appellee N. Lane Akin filed a petition seeking Ross’s removal
from office. See Tex. Loc. Gov’t Code Ann. §§ 87.031–.032 (West 2008 & Supp.
2014); accord In re Evans, 401 S.W.3d 921, 923–24 (Tex. App.—Dallas 2013,
orig. proceeding) (explaining that subchapter B of chapter 87 provides for
removal of certain government officials from office by petition and trial on non-
criminal grounds while subchapter C addresses removal by criminal conviction
involving official misconduct). In due course, Akin filed a motion for summary
judgment, claiming that he had conclusively established facts—Ross’s
misdemeanor conviction of the offense of abuse of official capacity—that
triggered Ross’s automatic and immediate removal from office under local
government code section 87.031(a). See Tex. Loc. Gov’t Code Ann.
§ 87.031(a). Following a hearing on the motion for summary judgment, the trial
court granted summary judgment for Akin and also signed a separate order
removing Ross from office. See id. § 87.031(b) (requiring court rendering
judgment of removal based on misdemeanor conviction involving official
misconduct to include an order removing the officer from office in its judgment).
Ross perfected this appeal and raises three issues.
II. ROSS’S MISDEMEANOR CONVICTION FOR ABUSE OF OFFICIAL CAPACITY
IS A MISDEMEANOR INVOLVING OFFICIAL MISCONDUCT
In his first issue, Ross argues that his conviction for abuse of official
capacity did not require an intent on his part to violate the law so that the
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conviction cannot qualify as “official misconduct” under section 87.031(a) or
trigger that section’s automatic removal provision. In his second issue, Ross
alternatively argues that he at least raised a fact issue on whether his conviction
for abuse of official capacity involved “official misconduct” so that summary
judgment was not proper.
We examine the terms of the statutes at issue to determine whether
Ross’s conviction for abuse of official capacity meets the definition of “official
misconduct” under chapter 87. The Texas Penal Code provides that a public
servant commits the offense of abuse of official capacity if, with intent to obtain a
benefit or with intent to harm or defraud another, he intentionally or knowingly (1)
violates a law relating to the public servant’s office or employment or (2) misuses
government property, services, personnel, or any other thing of value belonging
to the government that has come into the public servant’s custody or possession
by virtue of the public servant’s office or employment. Tex. Penal Code Ann.
§ 39.02. A person acts intentionally when it is his conscious objective or desire
to engage in the conduct. Id. § 6.03(a) (West 2011). A person acts knowingly
when he is aware of the nature of his conduct or that the circumstances exist. Id.
§ 6.03(b). The offense of abuse of official capacity is a Class B misdemeanor if
the value of the thing misused is $20 or more but less than $500. Id.
§ 39.02(c)(2).
Texas Local Government Code section 87.031 provides:
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(a) The conviction of a county officer by a petit jury for any
felony or for a misdemeanor involving official misconduct operates
as an immediate removal from office of that officer.
(b) The court rendering judgment in such a case shall include
an order removing the officer in the judgment.
Tex. Loc. Gov’t Code Ann. § 87.031. “Official misconduct” is defined as
“intentional, unlawful behavior relating to official duties by an officer entrusted
with the administration of justice or the execution of the law. The term includes
an intentional or corrupt failure, refusal, or neglect of an officer to perform a duty
imposed on the officer by law.” Id. § 87.011(3) (West 2008).
Ross argues that the offense of abuse of official capacity simply does not
qualify as “official misconduct” under section 87.031(a) of the local government
code because section 87.011’s definition of “official misconduct” requires
intentional, unlawful behavior; Ross asserts that the behavior forming the basis of
his abuse-of-official-capacity conviction was not intentional. In resolving Ross’s
first issue, we limit our analysis to the words of these statutes, and we apply the
plain meaning of the words unless a different meaning is supplied by legislative
definition or is apparent from the context or unless the plain meaning leads to
absurd results. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011); Tex.
Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.
2010).
In connection with his abuse-of-official-capacity plea agreement, Ross
signed a judicial confession. The judicial confession was included as summary-
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judgment evidence attached to Akin’s motion for summary judgment. The judicial
confession states that Ross committed each and every act alleged in the
indictment. Thus, Ross confessed––as set forth in the indictment that was also
attached to Akin’s summary judgment motion––that Ross did
then and there, with intent to obtain a benefit or with intent to
harm or defraud another, intentionally or knowingly misuse
government property, services or personnel or any other thing of
value belonging to the government that had come into his custody or
possession by virtue of his office or employment, by building a
playhouse for his grandchildren on public property, or by utilizing
public employees being paid by public funds to help build a
playhouse for his grandchildren during the employee’s paid working
hours, or by using building supplies or electrical components
purchased with public funds to build a playhouse for his
grandchildren, and the value of the said property, services,
personnel time or any other thing of value misused by the Defendant
was $20 or more but less than $500, and the said Defendant was a
public servant.
As set forth above, Ross judicially confessed that he acted intentionally or
knowingly in the commission of the abuse-of-official-capacity offense when he
misused government property with the intent to obtain a benefit. Applying the
penal code definitions of intentionally and knowingly, Ross judicially confessed
that it was his conscious objective or desire to engage in the conduct of misuse
of government property or that he was aware of the nature of his conduct when
he misused government property. See Tex. Penal Code Ann. § 6.03(a), (b).
Ross likewise judicially confessed that the property he had misused had come
into his custody or possession by virtue of the office he held. Ross’s admitted
intentional or knowing misuse of government property that he possessed or had
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custody of as a result of his office as County Commissioner of Precinct Four in
Wise County with the intent to obtain a benefit for himself is—applying the
definition of “official misconduct” provided in chapter 87 of the local government
code—behavior that is “intentional, unlawful behavior relating to official duties by
an officer entrusted with the administration of justice or the execution of the law.”
Tex. Loc. Gov’t Code Ann. § 87.011(3). Juxtaposing the definition of “official
misconduct” provided by the legislature in section 87.011(3) to the facts judicially
confessed by Ross—including Ross’s mental state as defined in the penal code,
we hold that Ross’s misdemeanor abuse-of-official-capacity conviction
constitutes a misdemeanor conviction involving official misconduct that operates
as an immediate removal from office under section 87.031(a) of the local
government code. See id. We overrule Ross’s first issue.2
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Citing article XVI, section 2 of the Texas constitution and In re Bazan, 251
S.W.3d 39, 41–42 (Tex. 2008) (orig. proceeding), Ross also asserts under his
first issue that a person may be excluded from office only if convicted of bribery,
perjury, forgery, or other high crimes. As pointed out by Akin, however, a
distinction exists between eligibility to hold office and removal from office. An
individual convicted of a felony (a high crime) is ineligible to hold public office
whether the conviction comes before or after the individual’s election to office.
Bazan, 251 S.W.3d at 41. A county officer convicted of a misdemeanor is
automatically and immediately removed from office only when the misdemeanor
involves official misconduct. Tex. Loc. Gov’t Code Ann. § 87.031(a). Because
Akin’s petition sought Ross’s removal based on Ross’s conviction for a
misdemeanor offense, which we have held involved official misconduct, we do
not further address Ross’s assertion that only the commission of high crimes
excludes a person from office.
To the extent that Ross’s argument under his first issue may be construed
as asserting that article XVI, section 2 of the Texas constitution authorizes the
passing only of laws removing officials from office for the commission of felonies
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In his second issue, Ross asserts that a genuine issue of material fact
exists concerning whether his abuse-of-official-capacity conviction qualifies as
“official misconduct” under sections 87.011(3) and 87.031(a) of the local
government code. As set forth above, Akin’s summary-judgment evidence—
which included the indictment, plea agreement, judicial confession, judgment,
and other papers concerning Ross’s abuse-of-official-capacity conviction—
conclusively established as a matter of law that Ross’s abuse-of-official-capacity
conviction qualified as “official misconduct” under section 87.011(3) and section
87.031(a). See Tex. Loc. Gov’t Code Ann. §§ 87.011(3), .031(a). We overrule
Ross’s second issue.
III. ROSS’S THIRD ISSUE
In his third issue, Ross claims that he was entitled to a jury trial in the
removal case. Ross relies upon article V, section 24 of the Texas constitution
and upon Trevino v. Barrera, 536 S.W.2d 75 (Tex. Civ. App.––San Antonio 1976,
no writ). Ross may or may not be correct in his assertion that a county official
may be entitled to a jury trial in a removal case under subchapter C of chapter
and precludes the passage of laws removing officials from office for the
commission of misdemeanors, he did not raise a constitutional challenge to
chapter 87’s removal-for-misdemeanors-involving-official-misconduct provision in
the trial court, so it is not preserved for our review. See, e.g., Wood v. Wood,
159 Tex. 350, 358–59, 320 S.W.2d 807, 813 (1959) (explaining that the
“constitutionality of a statute will be considered only when the question is
properly raised and a decision becomes necessary and appropriate to the
disposal of the case and no statute should be overruled without careful and
mature consideration”).
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87; however, we need not decide that issue here because even if Ross was
entitled to trial by a jury on the removal issue, Akin was still entitled to file a
motion for summary judgment, and the trial court was still entitled to grant a
summary judgment if no genuine issues of material fact existed and if Akin
established his right to judgment as a matter of law. See Tex. R. Civ. P. 166a
(providing that the judgment sought shall be rendered if there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter of
law on the issues expressly set out in the motion). Because we have held in our
disposition of Ross’s first two issues that no genuine issues of material fact exist
concerning whether Ross’s abuse-of-official-capacity conviction qualifies as a
misdemeanor involving “official misconduct” under local government code section
87.011(3) and that therefore Akin established his right to a judgment of removal
as a matter of law under local government code sections 87.031(a) and
87.031(b), Ross is no longer entitled to a jury trial in any event. We overrule
Ross’s third issue.
IV. CONCLUSION
Having overruled Ross’s three issues, we affirm the trial court’s judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.
DELIVERED: December 23, 2014
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