in Re: Derick Dewayne Evans , 2013 Tex. App. LEXIS 6804 ( 2013 )

DENIED; and Opinion Filed May 31, 2013.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00022-CV
IN RE: DERICK DEWAYNE EVANS, Relator
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-10-01193-W
OPINION
Before Justices Moseley, Francis, and Fillmore
Opinion by Justice Moseley
We deny relator’s motion for reconsideration. On the Court’s own motion, we withdraw
our opinion of February 13, 2013, and vacate our order of the same date. The following is now
the opinion of the Court.
Derick Dewayne Evans served as a Dallas County constable until he was removed from
office after a jury convicted him of a felony offense. He seeks a writ of mandamus ordering the
trial court to vacate three orders whereby it suspended him from office during the course of the
appeal of his conviction, appointed another person to perform his duties, and denied a motion for
rehearing. We deny Evans’s petition for mandamus, and we deny his motion for rehearing.
STANDARD OF REVIEW
Mandamus is appropriate if Evans establishes a clear abuse of discretion for which there
is no adequate remedy by appeal. See In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422
(Tex. 2010) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails
to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382
(Tex. 2005) (orig. proceeding).
APPLICABLE LAW
Before we address the issues presented, we review the law generally applicable to the
removal proceedings involved here. Chapter 87 governs the removal or suspension of certain
government officials from office; subchapter B of chapter 87 provides for removal of an officer
by petition and trial on non-criminal grounds, see TEX. LOC. GOV’T CODE §§ 87.011-87.019
(West Supp. 2012), while subchapter C addresses removal by criminal conviction involving
official misconduct, see id. §§ 87.031-.032. 1 Section 87.031, located in subchapter C, provides
that a felony or misdemeanor conviction involving official misconduct “operates as an
immediate removal from office for that officer.” Id. § 87.031(a). In that event, the trial court
“shall include an order removing the officer in the judgment.” Id. § 87.031(b). However, if the
officer appeals his conviction,
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. If the court finds that the public interest requires suspension, the court
shall suspend the officer as provided by this chapter.
Id. § 87.032 (emphasis added).
The only other suspension provision “provided by this chapter” is that found section
87.017, dealing with the suspension of an officer pending trial for removal based on non-
criminal grounds. Section 87.017 states:
1
We note Subchapter A, entitled General Provisions, applies only to petition and trial on non-criminal grounds. See In re Bazan, 251
S.W.3d 39, 43 (Tex. 2008).
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Suspension Pending Trial; Temporary Appointee
(a) After the issuance of the order requiring citation of the officer, the district judge
may temporarily suspend the officer and may appoint another person to perform
the duties of the office.
(b) The judge may not suspend the officer until the person appointed to serve
executes a bond, with at least two good and sufficient sureties, in an amount fixed
by the judge and conditioned as required by the judge. The bond shall be used to
pay damages and costs to the suspended officer if the grounds for removal are
found at trial to be insufficient or untrue. In an action to recover on the bond it is
necessary to allege and prove that the temporary appointee actively aided and
instigated the filing and prosecution of the removal action. . . .
(c) If the final judgment establishes the officer’s right to the office, the county shall
pay the officer from the general fund of the county an amount equal to the
compensation received by the temporary appointee.
Id. § 87.017 (emphasis added).
The pre-trial suspension procedures under section 87.017 do not fit seamlessly with the
provisions in subchapter C—including section 87.032—requiring an officer’s suspension from
office after conviction for a criminal offense involving official misconduct. For example, section
87.017(b) mandates the bond to “be used to pay damages and costs . . . if the grounds for
removal are found at trial are to be insufficient or untrue.” Id. § 87.017(b). But if an officer has
been removed pursuant to section 87.032 based on a criminal conviction, as Evans was here, the
grounds for his removal have already been “found at trial” to be sufficient or true. Thus, as
discussed further below, despite the “suspend . . . as provided by this chapter” language in
section 87.032, we have some question of whether the bond required for a temporary
replacement of an officer pending trial in a civil removal proceeding applies to the replacement
of an officer after the officer has been convicted of a criminal offense involving official
misconduct.
PROCEEDINGS BELOW
The trial court’s judgment of conviction removed Evans from office pursuant to sections
87.031 and 87.032. After Evans filed a notice of appeal, the State petitioned the trial court to
find that Evans’s suspension from office pending his appeal was in the public interest. The trial
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court held an evidentiary hearing on the motion, at which the State re-offered—and the trial court
admitted without objection—all the evidence admitted at the guilt/innocence stage of Evans’s
criminal trial.
After the hearing, the trial court signed an order, dated August 6, 2012, stating that after
considering the evidence presented, counsels’ arguments, the Texas Local Government Code,
and applicable statutes, it was in the public interest to suspend Evans pending the appeal of his
criminal conviction. On August 13, 2012, the trial court issued a second order appointing
Cleophus R. Steele, Jr. to perform the duties of Evans’s former office for the remainder of the
term or until Evans is returned to office following a successful appeal of his conviction. The
August 13 Order states a bond “in the amount of $5,000” shall be posted “in compliance with
Local Government Code § 87.017.”
Evans filed a “Motion for New Trial or Motion for Reconsideration of Order on
Suspension from Office and Order on Appointment of Constable for Precinct 1, or alternatively,
Motion for Order Establishing Supersedeas.” In his motion (and at the hearing), Evans argued
his suspension was improper for several reasons, including that there was no evidence to support
the amount of the bond set by the August 13 Order and that the trial court was required to set
supersedeas. The parties argued the motion at the hearing but did not present any evidence to the
trial court, except that upon Evans’s motion, the trial court took judicial notice of a County
Commissioners’ order setting the maximum salary for the office of constable. At the conclusion
of the hearing, the trial court signed an order, dated October 8, 2012, denying the motion.
Evans filed a petition for writ of mandamus with this Court challenging the August 6
Order, the August 13 Order, and the October 8 Order. He asserts the trial court abused its
discretion by: denying Evans an appropriate supersedeas; failing to comply with section 87.017;
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and suspending Evans without following constitutional requirements and without proper jury
findings.
EVANS’S OWN RIGHT TO SUPERSEDE THE JUDGMENT
Evans first argues he has an “absolute” right to supersede the “judgment of removal”
during his appeal, and that the trial court abused its discretion by denying him that right. Citing
sections 87.031 and 87.032 and In re Bazan, he argues that although his removal is ancillary to a
criminal conviction, the appeal of his removal is necessarily a civil proceeding. Otherwise, the
Texas Supreme Court would have lacked jurisdiction to decide such matters in In re Bazan. He
then argues that it is “well-settled” that the right to supersedeas is absolute and that a trial court
has no discretion to deny supersedeas, citing a long list of cases that generally stand for that
proposition.
We need not dwell on the precise “civil versus criminal” demarcation relevant to the
removal. Although generally supersedeas is available in an appeal of a civil judgment, none of
Evans’s cases address removing an officer after a criminal conviction involving official
misconduct under subchapter C. Initially chapter 87 allowed Evans to supersede his conviction
by appealing it, which he did. See TEX. LOC. GOV’T CODE § 87.032. However, once the trial
court found “it [was] in the public interest to suspend” Evans pending the appeal of his criminal
conviction, Evans had no further right to supersede the trial court’s order. See generally id.; In
re Bazan, 251 S.W.3d at 41 (“If the officer appeals the conviction . . . the removal order is
superseded, unless the trial court determines that the public interest requires the officer’s
suspension during the appeal.”).
The statutory framework for the removal of an official under chapter 87 controls over the
law applicable to civil cases in general. Requiring the trial court to grant Evans’s request for
supersedeas, thereby allowing Evans to remain in office pending the appeal of his criminal
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conviction, effectively would eviscerate the statute’s provision that a convicted public official
shall be suspended from office if the court finds it is in the public interest to do so. See
Fireman’s Fund Cnty. Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex. 2000) (interpret
statutes to give effect to Legislature’s intent). Accordingly, we conclude the trial court did not
abuse its discretion by denying Evans’s request to supersede the order removing Evans from
office.
FAILURE TO COMPLY WITH SECTION 87.017
Evans argues the trial court abused its discretion by failing to comply with section
87.017. Evans first complains the August 13 Order did not require Steele to execute a bond
before Evans’s suspension became effective. However, by the time Evans filed this petition for
mandamus, the bond was filed; thus, there is nothing for us to consider with respect to Evans’s
first complaint.
Evans next complains the August 13 Order did not require the bond be backed by two or
more good and sufficient sureties. Because the August 13 Order states the bond must be posted
“in compliance with Local Government Code § 87.017”—which requires it be executed with two
good and sufficient sureties—we cannot say the trial court abused its discretion by failing to
specifically recite the requirement of section 87.017 that a bond be executed with at least two
good and sufficient sureties.
Evans next contends the trial court abused its discretion by failing to specify the basis for
its finding that it was in the public interest to suspend Evans pending the appeal of his
conviction. See TEX. LOC. GOV’T CODE § 87.032. The statute does not require the trial court to
state the basis for its determination. See id. And we cannot say that the trial court lacked
evidence to reach this conclusion; at the suspension hearing, all of the evidence admitted at the
guilt/innocence phase of Evans’s criminal trial was admitted without objection. We decline to
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conclude the trial court abused its discretion by failing to specify its factual basis for invoking
the public interest provision in section 87.032.
Finally, Evans complains the August 13 Order lacks required conditioning language—
specifically, Evans argues the bond should be payable to him upon the condition that the grounds
for his removal are found to be insufficient or untrue—and the August 13 Order “arbitrarily” set
a bond amount at $5,000.
The bond required by section 87.017 is to pay damages and costs to the suspended officer
“if the grounds for removal are found at trial to be insufficient or untrue.” Id. § 87.017(b)
(emphasis added). As stated earlier, the statute does not require the trial court to state this as a
condition or otherwise require that the bond be payable to Evans if his conviction is reversed, as
Evans urges us to conclude. See id. Moreover, the statute does not speak to whether the bond is
available to pay for damages and costs if the grounds for removal are found on appeal to be
insufficient or untrue. In this case, Evans has been tried, the grounds for removal were found to
be sufficient and true, and Evans was convicted. 2 This clause in section 87.017 simply does not
apply to the facts of Evans’s request for mandamus and the trial court did not abuse its discretion
by failing to order the bond payable to Evans or imposing other conditioning language.
Similarly, we cannot conclude the trial court abused its discretion by setting the amount
of the bond at $5,000. As Evans notes in his brief, the bond is to be used to pay damages and
costs to the suspended officer. See id. Although Evans asserts he presented evidence to the trial
court that the amount of $5,000 is not sufficient to cover his damages and costs if this Court
reverses his conviction, we disagree.
2
Additionally, the bond would only be paid to Evans if he could prove that Steele “actively aided and instigated the filing and prosecution
of the removal action.” TEX. LOC. GOV’T CODE § 87.017(b). Evans does not allege, and there is no evidence indicating, Steele aided and
instigated the filing and prosecution of the removal action against Evans.
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Evans relies on a document––which the trial court judicially noted at the October 8
hearing—titled “Elected Official FY2013 Maximum Proposed Monthly Salary and Auto
Allowance with 4% Salary Increase and an 0% Auto Allowance Increase.” This is evidence of
the maximum proposed monthly salary and auto allowance of someone in Evans’s position, not
proof his salary.
Moreover, by statute, if Evans’s conviction is reversed and a subsequent final judgment
establishes his right to the constable’s office, then the county could be required to pay him an
amount equal to the compensation received by Steele. See id. § 87.017(c). Any damages in the
form of unpaid salary to which Evans may be entitled may be reduced by the amount of
compensation received by Steele—and there is no evidence of the amount of compensation to be
received by Steele. Without evidence that Evans’s damages and costs would be more than, less
than, or equal to $5,000, we cannot say that the trial court abused its discretion by setting the
amount of the bond at $5,000.
COMPLIANCE WITH REMOVAL PROCEDURES
Evans also argues the August 6 Order, the order of removal, and the suspension, are
invalid. Evans asserts the State was required to file a pleading advising him that it would seek
his removal. The case Evans cites to support this proposition, Ormes v. Quinn, 113 S.W.2d 242
(Tex. Civ. App.—El Paso 1938, no writ), is not applicable. In Ormes, the appellant, a constable,
was charged with offenses and misconduct. The State sought to remove the appellant from
office “during the pendency of the ouster proceedings and so long as there is [an] indictment
pending against him charging a felony.” Ormes, 113 S.W.2d at 242. The district court
suspended the appellant pending the outcome of his criminal case. The removal suit
subsequently was dismissed; by the time of the dismissal, the appellant’s term in office had
expired. Appellant sued to recover damages against the substitute constable’s official bond. See
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id. at 243. Ormes is not applicable to the facts before us because Ormes was removed from
office before he was convicted of any crime while Evans was removed after a felony conviction.
Additionally, the Ormes court did not state a pleading is required before the State can seek to
remove a convicted felon from office. The notice to Evans that he would be suspended from
office was his indictment and conviction. Neither chapter 87 nor the Ormes case requires any
additional notice to be given.
Evans also argues that article 5, section 24 of the Texas constitution required the State to
file a pleading advising Evans that the State intended to suspend him and to obtain a finding of
removability from the jury. Because the State did not do so, Evans argues, the suspension is not
proper. Article 5, section 24 states that a judge may remove a constable for “incompetency,
official misconduct, habitual 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.” TEX. CONST. art. V, §24.
We do not read this constitutional provision to require the trial court to submit a question on
removability to the jury. Rather, we understand this provision to require the cause of the
removal—the felony—to have been set forth in writing and found true by the jury. This
occurred in Evans’s case when he was indicted and subsequently convicted by a jury.
We do not conclude the trial court’s order of suspension is “constitutionally infirm or
invalid.”
CONCLUSION
We deny Evans’s petition for writ of mandamus and motion for rehearing.
130022F.P05 /Jim Moseley/
JIM MOSELEY
JUSTICE
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