IN THE
TENTH COURT OF APPEALS
No. 10-06-00372-CV
Hill Regional Hospital,
Appellant
v.
Maxine Runnels, Individually
and as Heir to and on Behalf
of the Estate of Glendon Runnels,
Deceased and Tammy Runnels Walker
and Glen Paul Runnels, Individually,
Appellees
From the 66th District Court
Hill County, Texas
Trial Court No. 42164
memorandum Opinion
Appellant has filed “Appellant’s Unopposed Motion to Dismiss Appeal,” stating that they have entered into a settlement agreement with Appellees and asking us to dismiss this appeal and to tax costs in accordance with the parties’ agreement. See Tex. R. App. P. 42.1(a)(2).
The motion to dismiss is granted, and the appeal is dismissed. Costs are taxed in accordance with the agreement of the parties. See Tex. R. App. P. 42.1(d).
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Appeal dismissed
Opinion delivered and filed June 4, 2008
[CV06]
ify; line-height: 0.388889in"> 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
Do not publish
(WITHDRAWN 1-20-99)