OFFICE OF THE A-ITORNEY GENERAL OF T’EXAS
AUSTIN
~c.yllcll
,namn*manIL
son. see Balloy xumphrsy
COUlty AttOrIl@~
Crookatt, Tt3XR8
Deai'SITI
place of the c'epvfetsdman$ PO? desire our optnlon as to
whether the aontiction or tbe trustee resulted in his re-
be Oould continue to
should be employed
srt&b 5908, Revised Cl011 Statutes, reada an
~+~L~'convlctlons by a petit jury of any
chti3tjwfrieers for any felony, or ror any mls-
aedqor involving of ricsiaf. mlsoonduOt , shall
da---ii.mtmte
work r~~0val rr0m 0rriae or the
ofrloer 80 convicted. Each euoh jud@mnt of
conviction ehnll embody within It an orner re-
moving such 0frioar.”
The aborn statute speaks only Of OonYlOtlo&3 by
petit jurlos, perhaps bsoause when 5.tbeoam law them
Hoa* Joe Bailey Humphrey, pago 3.
oould be no oonviotlon of a rmlony rxoept upon a &r trid,
~~rtlolrloa, C. C. p., glring to the defendant the rL ht to
walr* a jury in a felony oas8 lees than oapltal, upon a plea
of guilty and with the oowent or the Distriot Attorney and
of the Court wan not snaoted until 1931., we are wro in-
olined to thk, howevef, that in pasring Arti 3963, with
itr requirement or a jury oonriotlon, the Leglr&turr had In
mind 88otlon U4, oi ArtlOlt. 3, of the State Constitution,
seadine 80 r0uom:
*Couiitymag88, oounty attorneys, olrrks
or the Dietriot and countyCourts, juetloee or
the peaoe, oonstables, and other county oifl-
oers, may be removed by the Judges or the Dir-
trlot Courts ror inoanpetuioy, 0rfi0id da-
oonduot, habitual cImnkenno8s, or other oausrs
defined by law, upon the oauae thereror be-
set forth in wrftlng and the finding or its
truth by a jury.”
From the opinion of the Supreme Court in Grimes vs.
‘l’hoclfi8, 104 S.Yi. 1058, lo& Tex. 36, we quotes
“It is contended that right to the ofrloe
is seoured by the Constitution and that it o’an
only be taken away, elthcr temporarily or per-
manently, by removal of the incumbent by the
distrlot judge, for oauses set rorth in writing
and found by a jury to be true us prosoribed by
section 84.
“It is well established by tho authorities
that under a Lonstitutlon like this there 18 no
power in the Legislature to authorize a reno~6.l
so provided ror otherwise then in the presorlbed
mode, and if a temporary suspension 0r the of-
ricer, during the psndenoy or valid proooedln@
to remove and as t;n incident of such procoedlngs
were equivalent to a removal, the argument would
be complete. Ke thus state the oharaoter Or the
suspension as temporary and Incidental to the
trial or a legal and valid proaeedlng to remove
beoause that is all that exists in this oase,
as well as for the reason thet we do not doubt
that there might be attempts at suspensions 8s
well as at removals that would violate the COE-
stitutlon.’
.
- --” 74
m state OX rd. Fiah Vs. O'bWaXS, COtUlty Judge
et al, 74 f3.N. (2) 146, aotlon was to remove a county judge
iSa the fOUS OOUUty0013~&3dOt~6 Ot DiPrmitCOIi$Lty. ThO
trial wae to a jury But the court lnatructrd a rrrdiot ror
the defendants. Ymnn the o$inlon of Judge Smith o? the San
Antonio Court of Civil qppsalr we quote:
@Tn his firat, ~eOond, third, and fourth
proposltlons relator oontenda that under the
constitutional provision here lmoked a jury
alone aa~ pas8 upon the lseue or whether an
0frioial is guilty or lnnooent of improper aota
oharged against him in a ease of this oharao-
ter, and that therefore the trial Judge erred
in directing a veralot ior appellees, The prop-
osition 1s correot, In a general eonse, in that
no offlolal may be rkmored from orrice ror sots
or inconptsncy or mieoonduct unless ma until
he has been found guilty or such &iota,by a
jury of hla peers; a district Juilgehas no
power to remove an olflalal in the absenos of
such jury flndix..R
x defendant ln a felony case dotis not have the un-
~unllfled right to waive a jury. Eiecan do 80 in c;ses less
than oopltal with the consent and upprovo]. of the distrlot
uttorney ana district J’ud~e. klere such consent aAd z?pro-
vu1 is given and as CI conooquenco thereor no convlotlon by
a petit jury is hnd, we are constrained to hold that .rtlole
5S68 does not apply. our opinion follows that the trustee
in i;uestlon WCSnot removed by this conviction and continues
to hold his oftloo. our o~lnion x0. o-1521 is Umitea ao-
COraiIUjly~
pours rsry truly