C. Scott Brumley
Get out. I’m tellin’ you now.
Do you catch my drift?
What could be plainer than this?
Nothin’ more to be said.
Write me a letter instead.
I don’t mean to be cruel,
But I’m finished with you.
—Tubes, Talk to Ya Later (1981)
Some people just can’t take a hint that they’ve worn out their welcome. If it’s a visiting family member, you fold up the sleeper sofa and put away the linens while they’re making a long distance call on your phone. You padlock the pantry and the refrigerator. You fill their car up with gas and start it for them. If it’s an elected official gone rogue, you have deputies or Texas Rangers hover around their office with listening devices and cameras, but they still won’t leave. Does this sound familiar? Whether it’s families or counties, at least one dysfunction is common to the group dynamic: the black sheep who cannot or will not recognize it’s time to hit the road.
With that in mind, what happens when your county’s own little Teapot Dome Scandal unfolds? Whether it involves large-scale kickbacks or bribes (as in some of the more spectacular cases), the recurrent scenario of road and bridge resources being used for private benefit, or some other mischief, the first misconception to dispel is that it’s unique to any particular locale. Unfortunately, the concept of official wrongdoing is familiar enough to find itself addressed in the Texas Constitution. In particular, it provides:
County judges, county attorneys, clerks of the District and County Courts, justices of the peace, constables, and other county officers, may be removed by the Judges of the District Courts for incompetency, official misconduct, habitual drunkenness, or other causes defined by law, upon the cause therefore being set forth in writing and the finding of its truth by a jury.1
So, habitually drunken elected officials should beware. Beyond that, the picture painted in the Constitution is abstract. It is true that article 15, §7 of the Constitution requires the legislature to “provide by law for the trial and removal from office of all officers of this State ….” While this provision by its own terms applies to state officials, its scope has been judicially interpreted to include county and municipal officers too.2 And it isn’t just misconduct while in office that concerned the Constitution’s framers. Run-ins with the law before taking office also bear upon the ability to occupy elected office. Specifically, the Constitution prompts the legislature to address the issue by stating:
Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes.3
What “high crimes” are within this provision has not been addressed by our two high courts in any unified sense. On the one hand, the Court of Criminal Appeals has opined that “high crimes” are limited to criminal conduct which demonstrates the same type of moral corruption and dishonesty inherent in the offenses that are explicitly named in its language.4 On the other, the Supreme Court has indicated that any felony conviction triggers the constitutional bar to officeholding.5 At a minimum, then, the caricature of the duplicitous politician with a hand in the cookie jar to the tune of $1,500 or more suggests a removable “high crime.”6
Conviction of a “high crime,” whatever that may ultimately mean, isn’t the only way to wind up in the ejection seat. There’s also civil removal for official misconduct, incompetency, intoxication from drinking an alcoholic beverage,7 or failure to satisfy an official bond requirement.8 All told, the missteps that can get folks kicked out of office are many. In fact, I’ve written some fairly hefty papers on the subject that I’ll be glad to send to you if you’re nervous about the addictive potential of prescription sleep aids. Meanwhile, it’s no safe assumption that your office will never be cast into the fray. Stuff happens, and your office may land in the quagmire because only county and district attorneys are authorized under Texas law to litigate a removal action.9 Moreover, your office is joined by the Attorney General as the lone litigators of quo warranto actions to oust unqualified or usurping occupants of public office.10
Disqualification or recusal
Given that status, sooner or later you’re likely to hear scandalous tales about other county officers. This is acutely possible because your office generally will qualify as an “appropriate law enforcement authority” under the Whistleblower Act.11 At the same time, the discomfort you’re likely to feel when treated to these reports will be more than just the product of a “lowest and best bid” county HVAC system cobbled together in MacGyver fashion. As you chew on an antacid and ponder the relative merits of personal injury law or landscaping work, several issues are likely to present themselves to you. Of course, the primary consideration is whether the facts make out a substantial case for some sort of ouster suit. Even if they do, there is no escaping the intensely political and polemic pressures that will be brought to bear. They may or may not be alliterative, but they will give you serious and creative thought as to whether your office and, more importantly, you can foist the case on someone else. Let’s consider that, shall we?
Neither the removal provisions nor the quo warranto statutes provide much guidance in resolving disqualification or recusal issues.12 Nonetheless, it was long ago observed that, in the context of official duties, the State—like nature—“abhors a vacuum.”13 Where the “vacuum” develops in a quo warranto case, the void may be filled by the attorney general’s office.14 Further, it may be argued, based on older Supreme Court authority, that the district attorney may step in for the county attorney, and vice versa, where one faces a potential conflict.15 Failing that option, it is worthy of note that a prosecutor is responsible for removal suits because of his status as an attorney for the State.16 Indeed, the State may not be represented “in district or inferior courts by any person other than the county or district attorney, unless such officer joins them.”17 For that reason, it is instructional, at least initially, to consider basic principles applicable when a criminal prosecutor is confronted with disqualification or recusal issues.
When a prosecutor is disqualified because of absence, recusal, or other inability to perform the duties of office in a case, a court may appoint “any competent attorney” (called an “attorney pro tem”) to perform them.18 An attorney pro tem “is not subject to the direction of the district [or county] attorney as is a subordinate, but, for that case, he is the district [or county] attorney.”19 An attorney pro tem is required to take the constitutional oath of office and may perform the office’s germane functions for purposes contemplated by the appointment.20 The Waco Court of Appeals recently assumed, arguendo, that the Code of Criminal Procedure’s attorney pro tem provisions might not apply to a civil removal suit but found that the trial court could appoint an attorney pro tem under its inherent authority to fill a prosecutorial void.21 This authority may be a helpful patch if your office is currently prosecuting the elected official or faced with a similarly vexing situation that seems to favor recusal.22
Sticking it out
That an escape hatch exists doesn’t answer whether you should use it. At the risk of oversimplification, discomfort does not equal disqualification. You will still need to articulate a reason for recusal or disqualification. The judge will probably want to know, and the news media will definitely ask about it. In any event, and I speak from experience, the temptation to abandon ship when removal or quo warranto becomes a possibility can be strong. Whatever the case may be, there are several folks within the association, including me, who can provide you with procedural help and guidelines on removal and quo warranto suits in general and recusal and disqualification in those suits in particular. But you still will have to determine whether the facts present a valid reason to pawn the case off on someone else. When you consider these prospects, remember two things. First, when evidence of official misbehavior becomes known, someone has to address it. Second, if you figure out a way to ensure that the “someone” isn’t you, bear in mind that what comes around goes around. Handing off an ouster case to a neighbor invariably creates the risk that your neighbor will call in the favor somewhere down the road.
Conversely, it may be that your office doesn’t have a real reason to bow out but needs help from an experienced hand in litigating the matter. Where that situation arises, consider bringing in a special prosecutor. As you probably know, a “special prosecutor” is an attorney, not a part of the prosecutor’s staff, who is enlisted to assist the prosecutor in a particular case.23 She is permitted by the elected district or county attorney to participate in a particular case to the extent allowed by the prosecuting attorney, without being required to take the constitutional oath of office.24 The district or county attorney need not be absent, disqualified, recused, or otherwise unable to perform, and approval by the trial court of the special prosecutor is not required.25 Use of an adjunct assistant in the nature of a “special prosecutor” now appears to be sanctioned in removal suits.26
With all of that said, I hope you never have use for any of these principles. Ideally, when the folks in your county join hands to sing, let it be “Kumbaya,” not “Thank God and Greyhound You’re Gone.” If official misconduct does rear its ugly head in your jurisdiction, however, remember that someone has to show the unwelcome one to the door. If you are convinced that you’re not the one to do it, remember also the aphorism generally attributed to P.T. Barnum: “There’s a sucker born every minute.” Just recall, as well, that they generally don’t work in prosecution.
1 Tex. Const. art. V, § 24.
2 See Meyer v. Tunks, 360 S.W.2d 518, 520 (Tex. 1962) (provision applies to county officers, specifically including sheriffs); State ex rel. White v. Bradley, 956 S.W.2d 725, 736 (Tex. App.—Fort Worth 1997), rev’d on other grounds, 990 S.W.2d 245 (Tex. 1999) (provision applies to officers of general-law municipality).
3 Tex. Const. art. XVI, §2.
4 Perez v. State, 11 S.W.3d 218, 221 (Tex. Crim. App. 2000) (holding that felony driving while intoxicated conviction was not “high crime” so as to disqualify juror).
5 In re Bazan, 251 S.W.3d 39, 41-42 (Tex. 2008) (art. XVI, §2 forbids eligibility for public office of those convicted of “other high crimes,” which are those offenses of same degree or grade as enumerated offenses, namely felonies) (citing Op. Tex. Att’y Gen. No. H-20 (1973)); cf. id. at 45 n. 1 (Willett, J., concurring) (opining that Supreme Court should distinguishing Court of Criminal Appeals’ Perez interpretation or adopt it outright).
6 See Tex. Pen. Code Ann. §39.02(a)(2), (b)(4)-(7) (Vernon Supp. 2009); see also Talamantez v. State, 829 S.W.2d 174, 180-82 (Tex. Crim. App. 1992) (concluding that predecessor to current Abuse of Official Capacity statute constituted official misconduct supporting removal).
7 There is a defense to removal based on intoxication if a licensed Texas physician prescribed the alcoholic beverage. See Tex. Loc. Gov’t Code Ann. §87.013(b) (Vernon 2008). Who would’ve thought one might need a doctor’s note to go honky tonkin’?
8 See Tex. Loc. Gov’t Code Ann. §§87.013(a), 87.014(1), (2) (Vernon 2008).
9 See Garcia v. Laughlin, 155 Tex. 261, 285 S.W.2d 191, 194-95, 197 (1956) (explaining that constitutional conferral of power upon state officials is generally exclusive, and such powers cannot be enlarged or restricted; thus, Tex. Const. art. V, §21 restricts representation of state in removal suit to county or district attorney and excludes attorney general).
10 See Tex. Civ. Prac. & Rem. Code Ann. §66.002(a), (c) (Vernon 2008) (granting attorney general, as well as district and county attorneys, authority to petition court for quo warranto relief); accord Op. Tex. Att’y Gen. No. JC-0514 (2002), at 4-5 (noting authority of attorney general, county or district attorney to initiate quo warranto proceedings).
11 See Tex. Gov’t Code Ann. §554.002(b)(2) (Vernon 2004) (authority is “appropriate law enforcement authority” if reporting employee in good faith believes authority is authorized to investigate or prosecute violation of criminal law); see also Town of Flower Mound v. Teague, 111 S.W.3d 742, 755 n. 9 (Tex. App.—Fort Worth 2003, pet. denied) (“… district attorneys are appropriate law enforcement authorities because they are authorized to investigate or prosecute violations of criminal law.”) (internal citations omitted).
12 Chapter 87 does provide that, where the defendant is the county attorney, the district attorney will represent the State. Tex. Loc. Gov’t Code Ann. §87.018(e) (Vernon 2008). Further, where the attorney who ordinarily would represent the State in a removal suit is also a subject of a pending removal suit, the county attorney from an adjoining county, as selected by the commissioners court of the county in which the removal suit is pending, will represent the State. Id. at (f). Beyond that, however, conflict of interest and designation of appropriate substitute counsel are not addressed.
13 McGhee v. Dickey, 4 Tex. Civ. App. 104, 23 S.W. 404, 404 (1893).
14 See Op. Tex. Att’y Gen. No. JC-0514 (2002), at 3 (“The attorney general or the district attorney may petition the district court for leave to file an information in the nature of quo warranto proceeding if the county attorney is precluded from doing so because of a conflict of interest.”).
15 See Garcia, 285 S.W.2d 191. The district court is empowered to resolve any conflict between the district attorney and the county attorney, should such differences develop over a removal suit. Id. at 197.
16 See n. 10, supra.
17 State Bd. of Dental Exam’rs v. Bickham, 203 S.W.2d 563, 566 (Tex. Civ. App.—Dallas 1947, no writ).
18 Mai v. State, 189 S.W.2d 316, 319 (Tex. App.—Fort Worth 2006, pet. ref’d); cf. Tex. Code Crim. Proc. Ann. art. 2.07(a) (Vernon 2005).
19 State v. Ford, 158 S.W.3d 574, 577 (Tex. App.—San Antonio 2005, pet. dism’d) (quoting State v. Rosenbaum, 852 S.W.2d 525, 528 (Tex. Crim. App. 1993)) (emphasis by the court).
21 See In re Murray, 268 S.W.3d 279, 286-87 (Tex. App.—Waco 2008, orig. proceeding [mand. denied]).
22 In Murray, the district attorney’s office had successfully sought recusal based on its pending prosecution of a drug charge against the defendant. 268 S.W.3d at 281. Thus, the Criminal Justice Division of the Attorney General’s Office was appointed in its stead. Id.
23 Mai, 189 S.W.3d at 319.
24 Ford, 158 S.W.3d at 577.
25 Mai, 189 S.W.3d at 319.
26 See Teal v. State, 230 S.W.3d 427, 432 (Tex. App.—San Antonio 2007, pet. denied) (approving outside counsel’s assistance to county attorney where record indicated county attorney appeared at trial and outside counsel did not usurp county attorney’s duties).