Hall v. State

OPINION ON MOTION FOR REHEARING

On motion for rehearing the state urges this Court to reconsider its holding in order to avoid coming into direct conflict with the Court of Criminal Appeals. The state argues that this Court set forth or created a test which is not substantiated in any prior case law. This alleged test is for determining when official misconduct exists for jurisdictional purposes and, according to the state, dictates: “that an act of official misconduct must (1) involve a violation of a statute which relates to the duties of a particular officer of government, and (2) involve conduct which might be considered more reprehensible if committed by a government official, rather than a private citizen.” It was not the intention of this Court to create such a narrow test.

Specifically, our use of the words “imposed by law” modifies “duty” and does not only mean a duty imposed by a statute. In the same sense, we believe our opinion is not in conflict with Robinson v. State, 470 S.W.2d 697 (Tex.Crim.App.1971), where the court held that conversion by a warrant officer of money that had come into his possession by virtue of an oral agreement to pay such money to an agent of the city in satisfaction of certain fines, did constitute official misconduct and therefore, conferred jurisdiction on the district court.

The state also cited the Robinson case in its motion as additional authority for the application of Tex.Rev.Civ.Stat. Ann. art. 5973 (Vernon 1962), which we also cited in our opinion. Here, the state argues that art. 5973 includes within its scope an officer’s negligent failure “to perform any duty enjoined on him by law,” without requiring that the law in question be one “specifically related to the defendant’s office”, as the Court suggests. While we do not mean to dictate a new requirement for the offense of official misconduct, namely, that the violation of a particular statute related to the prescribed duties of an official must be established, we do maintain that those duties should be “specifically related to the defendant’s office” in order to constitute the offense of official misconduct. Notably, and as conceded by the state, art. 5973 should not be considered as the sole standard for determining the offense of official misconduct for jurisdictional purposes. This statute is expressly limited to removal actions. In fact, we are guided in our decision more persuasively by the case law already cited in our opinion. In every case we have come across in our research, including Robinson, the acts of official misconduct were inextricably a function of the official duties of the defendant. We do not consider operating a motor vehicle an inextricable function of a police officer’s official duties. We do find that placing an individual under threat of arrest, Gallagher v. State, 690 S.W.2d 587, 590 (Tex.Crim.App.1985); or using im*818proper means to obtain a confession, Simpson v. State, 138 Tex.Cr.R. 622, 137 S.W.2d 1025 (1940), (among other cases) are examples of misconduct by police officers performing inextricable functions of their office.

We now consider the second prong of the test which the state has inferred from our opinion. The complained of language consists of:

In each of the above cited cases, the acts in question were violations of duties, affirmatively imposed by law, which specifically related to the individual’s office. However, the instant offense was not related to appellant’s position as a deputy sheriff. The offense she committed would have been equally serious and equally punishable had she been off-duty and driving her personal automobile. Not every offense committed by a public official involves official misconduct.

(The underlined portions are considered by the state as the most damaging). Apparently, the state understands this to mean that an “offense involving official misconduct must either be one that cannot be committed by an ordinary citizen, or would be more ‘serious’ and ‘punishable’ if committed by a public servant”. We agree with the first statement, that is: official misconduct is an offense which cannot be committed by an ordinary citizen. However, in opposing this view, the state cites Robinson v. State, 470 S.W.2d 697, once again, claiming that it involved theft by a bailee. The state argues that theft by a bailee is an offense which anyone could commit, but, in Robinson the Court held it constituted official misconduct. Yet, we note that the facts in Robinson clearly state that the appellant was a warrant officer for the city of Houston and that “in his official capacity he came into the possession of $30 ...”. 470 S.W.2d at 699. Clearly, the appellant in Robinson would not have received the money if he had not been a warrant officer. Moreover, it was an inextricable function of his position as a warrant officer to properly convey the $30 to an agent of the city in satisfaction of certain fines. An ordinary citizen would not have received the $30 under those circumstances nor would it have been a duty or function of his office to properly convey the money.

Additionally, we do not see how our decision implies that an act must be more serious or punishable if committed by a public servant to constitute official misconduct. This statement bears no relationship to our decision. The quoted language from the opinion of which the state complains was essentially made for the point that “not every offense committed by a public official involves official misconduct”.

Finally, we take note that the state has correctly pointed out the effect of the recent amendment of Article Y, Section 8, of the Texas Constitution concerning jurisdiction in the district court. That newly amended provision only deprives the district court of concurrent or original jurisdiction when another court or tribunal has a grant of exclusive jurisdiction over the matter involved. Consequently, we withdraw our reference to the Tex.Code Crim. Proc.Ann. art. 4.07 (Vernon 1977) as authority for our holding that the district court had no jurisdiction over the matter. This statute only grants original jurisdiction to the county courts over all misdemeanors and apparently would not preclude the district court of concurrent jurisdiction. We now cite to Tex.Gov’t Code Ann. section 26.045(a) (Vernon 1987) which reads:

A county court has exclusive original jurisdiction of misdemeanors other than misdemeanors involving official misconduct and cases in which the highest fine that may be imposed is $200 or less, (emphasis added).

Accordingly, we deny the state’s motion for rehearing for the reasons set out herein, and reform our original opinion as noted.