Michael Beals Ellis v. State ( 1998 )

Michael Beals Ellis v. The State of Texas

WITHDRAWN 1-20-99

IN THE

TENTH COURT OF APPEALS

No. 10-98-073-CR

&

No. 10-98-074-CR

     MICHAEL BEALS ELLIS,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the County Court at Law No. 2

McLennan County, Texas

Trial Court Nos. 974560 CR2 & 974561 CR1

MEMORANDUM OPINION

      Michael Ellis was convicted of six traffic violations in the Hewitt Municipal Court. He appealed the convictions and was tried de novo in the County Court at Law No. 2 of McLennan County. This appeal covers two of those convictions. Ellis appeals on four points.

      His first point asserts that both the Hewitt Municipal Court and the County Court at Law No. 2 “lack personam jurisdiction of the State.” Ellis argues that the State should have been represented by the McLennan County District Attorney rather than the Hewitt city attorney.

      Ellis argues that article V, section 21, of the Texas Constitution mandates that a county or district attorney represent the State in all criminal cases. Tex. Const. art. V, § 21. That constitutional provision states: “if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature.” Id.

      The Legislature has provided for prosecutions in municipal courts:

All prosecutions in a municipal court shall be conducted by the city attorney of such city, town or village, or by his deputy. . . . With the consent of the county attorney, appeals from municipal court to a county court, county court at law, or any appellate court may be prosecuted by the city attorney or his deputy.

Tex. Code Crim. Proc. Ann. art. 45.03 (Vernon Supp. 1998). We agree with the Fort Worth Court which has already visited this question in Naff v. State, 946 S.W.2d 529, 532 (Tex. App.—Fort Worth 1997, no pet.). A city attorney's representation for the State does not violate the Texas Constitution nor Ellis' due process rights. We overrule point one.

      Ellis' second point asserts “improperly set forum.” He argues that the City of Hewitt controls both the municipal prosecutor and the municipal judge in violation of due process. He further states that the municipal court has been “transformed into a forum where all officers are illegally controlled by the city council, (for the purpose of illicit revenue raising).”

      The State responds that the convictions before us are from the County Court at Law No. 2; that the presiding judge of that court is paid by McLennan County; and that therefore there is no issue of judicial influence or partiality. We agree with the State and overrule point two.

      Ellis' third point asserts that the Hewitt City Court is “subverted to produce convictions and illegal revenue to cities and city attorneys.” He reiterates some of his arguments under points one and two.

      The Legislature has provided for proceedings in municipal courts. Tex. Code Crim. Proc. Ann. arts. 45.01-.56 (Vernon 1979 & Supp. 1998). Incorporated cities may pass ordinances and collect fines imposed by municipal courts. Id. art. 45.06. We do not find that these statutory provisions violate Ellis' due process. We overrule point three.

      Ellis' final point asserts that Kathleen Dow acted as the Hewitt City Attorney but is also the Municipal Judge of Bellmead. He asserts that by holding both offices, Dow is in violation of the Texas Constitution. Tex. Const. art. XVI, § 40. Article XVI, section 40, prohibits a person from holding more than one civil office at a time. Id. Amendments have been made to this provision over the years. Most recently, section 40 has been amended to allow a municipal judge to hold that position in more than one municipality. Section 40 also provides: “[A] nonelective State officer may hold other nonelective offices under the State . . . if the other office is of benefit to the State of Texas . . . and there is no conflict with the original office for which he receives salary or compensation.” Id.   

      A municipal judge, whether elected or appointed, full or part-time, holds a “public office.” Op. Tex. Att'y Gen. No. DM-428 (1996). However, an assistant district attorney does not hold office. Id. (citing State ex rel., Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994). If Dow is an assistant prosecutor, she is not prohibited by section 40. Furthermore, even if both positions are “offices,” Dow may hold both if it benefits the State and there is no conflict. Id.; Tex. Const. art. XVI, § 40. We do not find the type of conflicting loyalties which would prohibit Dow from prosecuting for the City of Hewitt.  

      We overrule point four and affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed December 23, 1998

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(WITHDRAWN 1-20-99)

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