IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
DECEMBER 16, 2002
______________________________
DAVID CRAWFORD, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 89,331-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________
Before QUINN and JOHNSON, JJ., and BOYD, SJ. (1)
ORDER ON APPELLANT'S MOTION FOR WAIVER OF FILING FEEAND TIME EXTENSION
Although the record of the underlying suit is not before us, from statements of counsel, it is undisputed that this appeal arises from an order in an underlying quo warranto suit. In that suit, so we are informed, the State seeks to remove appellant David Crawford (Crawford) from the office of Constable, Precinct 3, Potter County because of his failure to comply with certain legal requirements not material to this motion. We are informed Crawford attempted to resign his office but for the purpose of its suit, the State recognized Crawford continued to hold the office until a successor is qualified.
The Potter County Attorney's office, counsel for the State (the County) in this proceeding, has attached a copy of the trial court's judgment to its response to Crawford's motion, and Crawford has not disputed the veracity of that copy. In its order, the trial court renders summary judgment in favor of the State removing Crawford from his office and assessing a monetary penalty "for usurping and for unlawfully holding and executing" the Constable's office.
Crawford has filed this motion asking us to order the Potter County District Clerk to file the clerk's record in the underlying suit without the payment of the clerk's fee. See Tex. R. App. P. 35.3(a)(2). He has also asked for an extension of time within which to file the clerk's record. The State does not oppose an extension of time within which to file the record, but it does oppose the furnishing of the clerk's record without the payment of a fee.
A political subdivision of this state or governmental entity is exempt from filing an appeal bond or from payment of the clerk's fee. Tex. Civ. Prac. & Rem. Code Ann. § 6.001 (Vernon 2002); Dallas County Appraisal Dist. v. Institute for Aerobics Research, 751 S.W.2d 860, 861-62 (Tex. 1988). Counties are expressly entitled to the benefit of the section 6.001 exemption. Enriquez v. Hooten, 857 S.W.2d 153, 154 (Tex.App.-El Paso 1993, no writ). As the County recognizes, it is established that a suit against a county officer in the officer's official capacity is "just another way of pleading a suit against the County. . . ." Battin v. Samaniego, 23 S.W.3d 183, 186 (Tex.App.-El Paso 2000, pet. denied); accord Vincent v. West Texas State University, 895 S.W.2d 469, 472 (Tex. App.-Amarillo 1995, no pet.) (suit against state university employees in their official capacities was suit against the State of Texas).
Thus, again as the County recognizes, a suit against a county officer in the officer's official capacity is actually a suit against the county, and the county's fee exemption applies to such a suit. See In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (suit against district clerk in official capacity, as county official, triggered section 6.001(b)(4)). Although recognizing that rule, the County argues it is not applicable here. In doing so, it reasons that quo warranto lies against an individual who is alleged to be a usurper and an unlawful holder of an office created by authority of the state. See Tex. Civ. Prac. & Rem. Code Ann. § 66.001(1) (Vernon 1997). Relying upon the fact that quo warranto proceedings do not exist to assess damages against a governmental entity or official, but rather challenge a person's right to hold a public office, the county concludes that the underlying suit differs from claims involving more orthodox determinations of liability, and as such, is not the type of suit against a county officer in that person's official capacity within the purview of the fee exemption statute.
We disagree. By the very nature of the County's refusal to recognize the validity of movant's resignation, it admits that movant continues to occupy his office until, and if, the removal it seeks is consummated. That being so, the nature of the suit must be to determine whether or not Crawford has the right to continue to occupy his office as a constable. It is a suit against a county official within the purview of the fee exemption statute, and Crawford is entitled to the clerk's record without the payment of a fee.
Accordingly, we hold that Crawford is entitled to the preparation of the clerk's record without the payment of a fee and the time for the filing of the record is granted to January 15, 2003.
It is so ordered.
Per Curiam
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2002).