Does a felony conviction automatically remove a Texas constable from office?

Plain-English summary

Senator John Whitmire, then chairing the Senate Committee on Criminal Justice, asked the Attorney General about an unusual sequence of events involving a Hidalgo County constable. The constable was convicted of a third-degree felony in 2006, and the trial court's judgment ordered his removal under Local Government Code section 87.031 and suspended him during his appeal. He appealed all the way to the United States Supreme Court. While the appeals were pending, he retired (an interim constable was appointed), then ran again and won reelection in 2008 to a new term beginning January 1, 2009. He filed a new oath and bond, but the commissioners court never approved the bond. In February 2011 the U.S. Supreme Court denied review, finalizing the conviction.

The central question was whether finalizing that conviction, which had originally been rendered before the constable's reelection, automatically removed him from the new term and created a vacancy without any official action. Section 87.031(a) says a county officer's felony conviction by a petit jury "operates as an immediate removal from office." But section 87.001 says an officer may not be removed under that chapter for an act committed before election. The opinion noted that the Texas Supreme Court, in this very constable's earlier case (In re Bazan), had already held that section 87.001's limitation applies only to civil removal proceedings and does not shield someone from removal after a felony conviction. The court explained the two provisions trace to different constitutional sources: one (article V, section 24) covers official misconduct, while the other (article XVI, section 2) bars those convicted of high crimes from holding office and makes no exception for crimes predating election.

With that limitation out of the way, the opinion concluded the removal is automatic once a conviction is final. Section 87.031 makes conviction operate as immediate removal, Texas courts agree a final judgment of conviction triggers automatic removal, and the Election Code provides that a vacancy occurs when the judgment becomes final. The provision that lets an appeal supersede the removal no longer applied because the appeals were exhausted. So the constable's removal was automatic and effective as a matter of law, creating a vacancy without further official action. Because of that conclusion, the opinion did not reach a question about an alternative way to remove the constable.

The remaining question involved the constitutional holdover rule (article XVI, section 17), under which officers keep serving until their successors are "duly qualified." The Senator suggested that because the commissioners court never accepted the bond, the constable was not duly qualified, so the interim constable held over. The opinion explained that a person elected but who has not completed every qualifying step can still be a de facto officer, and if the constable was a de facto officer there would have been no open office for the interim constable to hold over into. Whether the de facto doctrine applied was a fact question the Attorney General could not resolve, and the opinion noted the issue was now moot anyway: the interim appointee had been appointed constable in his own right for the rest of the term, and the Precinct Five office had been abolished.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Texas Senate (as the opinion described it): The opinion answered that, under In re Bazan and section 87.031(a), the constable's finalized felony conviction automatically removed him from the new-term office and created a vacancy, while declining to resolve the holdover/de facto question as fact-dependent and moot.

County officers generally (as the opinion described it): The opinion read section 87.031(a) to make a final felony conviction operate as automatic removal once appeals are exhausted, with a vacancy occurring when the judgment becomes final, and noted a felony conviction also disqualifies a person from future elective office under the Election Code.

Commissioners courts and interim appointees (as the opinion described it): The opinion treated whether the reelected constable was a "duly qualified" successor or merely a de facto officer (and thus whether an interim officer held over) as an unresolved fact question, and observed the dispute was moot given the later appointment and abolition of the office.

Common questions

Does a felony conviction automatically remove a Texas constable from office?
According to the opinion, yes, once the conviction is final and appeals are exhausted. Section 87.031(a) makes a county officer's felony conviction operate as an immediate removal, and a vacancy occurs when the judgment becomes final.

Does it matter that the conviction came before the constable was reelected?
The opinion said no. Citing the Texas Supreme Court's decision in this constable's own case, In re Bazan, it explained that the chapter 87 limit on removal for pre-election acts does not protect a person convicted of a felony.

Is any official action needed to create the vacancy?
The opinion concluded none is needed. The removal is automatic and effective as a matter of law once the conviction is final, so the office becomes vacant without further action.

Did the unapproved bond keep the interim constable in place?
The opinion did not decide that. It explained the reelected constable might have been a de facto officer despite the bond issue, which is a fact question it could not resolve, and it found the point moot because the interim appointee was later appointed in his own right and the office was abolished.

Background and statutory framework

Local Government Code section 87.031(a) provides that a county officer's conviction by a petit jury for any felony "operates as an immediate removal from office." Tex. Loc. Gov't Code Ann. § 87.031(a) (West 2008). Section 87.001 bars removal under that chapter for an act committed before election. Id. § 87.001. The Texas Supreme Court held in In re Bazan, 251 S.W.3d 39, 44-45 (Tex. 2008), that section 87.001's pre-election limitation reaches only civil removal proceedings, distinguishing article V, section 24 (official misconduct) from article XVI, section 2 (exclusion of those convicted of high crimes). The U.S. Supreme Court later denied review. Bazan v. Tex., 131 S.Ct. 1482 (2011).

Texas courts agree that a final judgment of conviction makes removal automatic. Trevino v. Barrera, 536 S.W.2d 75, 77 (Tex. Civ. App.-San Antonio 1976, orig. proceeding); Eckels v. Gist, 743 S.W.2d 330, 332 (Tex. App.-Houston [1st Dist.] 1987, orig. proceeding); see Leo v. Mancias, 885 S.W.2d 268, 270 (Tex. App.-Corpus Christi 1994, orig. proceeding). The Election Code provides that a vacancy occurs when the judgment becomes final, Tex. Elec. Code Ann. § 201.024 (West 2003), and a felony conviction disqualifies a person from future elective office, id. § 141.001(a)(4) (West 2010). Section 87.032 lets an appeal supersede the removal unless the trial court orders otherwise, Tex. Loc. Gov't Code Ann. § 87.032 (West Supp. 2011), but no longer applied once appeals ended. On the holdover question, the opinion cited the constitutional oath and bond requirements, Tex. Const. art. XVI, § 1; Tex. Loc. Gov't Code Ann. § 86.002 (West 2008), the holdover clause, Tex. Const. art. XVI, § 17, and the de facto officer doctrine, Williams v. State, 588 S.W.2d 593, 595 (Tex. Crim. App. [Panel Op.] 1979); Henry v. State, 828 S.W.2d 312, 314-15 (Tex. App.-Fort Worth 1992, writ ref'd).

Citations

Cases:

• Bazan v. Tex., 131 S.Ct. 1482 (2011)
• In re Bazan, 251 S.W.3d 39, 44-45 (Tex. 2008)
• Trevino v. Barrera, 536 S.W.2d 75, 77 (Tex. Civ. App.-San Antonio 1976, orig. proceeding)
• Eckels v. Gist, 743 S.W.2d 330, 332 (Tex. App.-Houston [1st Dist.] 1987, orig. proceeding)
• Leo v. Mancias, 885 S.W.2d 268, 270 (Tex. App.-Corpus Christi 1994, orig. proceeding)
• Williams v. State, 588 S.W.2d 593, 595 (Tex. Crim. App. [Panel Op.] 1979)
• Henry v. State, 828 S.W.2d 312, 314-15 (Tex. App.-Fort Worth 1992, writ ref'd)

Statutes:

• Tex. Loc. Gov't Code Ann. § 87.031(a) (West 2008)
• Tex. Loc. Gov't Code Ann. § 87.001
• Tex. Loc. Gov't Code Ann. § 87.032 (West Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 86.002 (West 2008)
• Tex. Const. art. XVI, § 1
• Tex. Const. art. XVI, § 2
• Tex. Const. art. XVI, § 17
• Tex. Const. art. V, § 24
• Tex. Elec. Code Ann. § 201.024 (West 2003)
• Tex. Elec. Code Ann. § 141.001(a)(4) (West 2010)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0933
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0933.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 18, 2012

The Honorable John Whitmire Opinion No. GA-0933
Chair, Committee on Criminal Justice
Texas State Senate Re: Whether a constable who was convicted of a
Post Office Box 12068 felony but whose conviction was finalized only
Austin, Texas 78711-2068 after he was reelected to a new term automatically
vacates his office (RQ-1016-GA)

Dear Senator Whitmire:

You write to ask several questions regarding the removal from office of a constable finally convicted of a felony.[1] You state that the Precinct Five Hidalgo County Constable (the "Constable") was convicted of a third degree felony in 2006. See Request Letter at 1. You indicate that the trial court's judgment ordered that the Constable "be removed from ... [O]ffice" under section 87.031 of the Local Government Code. Id. (quoting Judgment of Conviction by Jury and Order of Community Supervision). You also tell us the trial court suspended the Constable during the pendency of his appeal pursuant to section 87.032 of the Local Government Code. See id.; see also TEX. LOC. GOV'T CODE ANN. § 87.032 (West Supp. 2011) (providing that the "appeal supersedes the order of removal unless the court that renders the judgment finds that it is in the public interest to suspend the officer pending the appeal"). You tell us further that the Constable appealed his conviction all the way to the Supreme Court of the United States. See Request Letter at 1.

You note in your request letter that during his appeals the Constable retired from his position and that an interim constable was appointed by the Hidalgo County Commissioners Court. See id. You also note that during his appeals the Constable successfully ran for reelection in 2008 to a new term commencing January 1, 2009. See id. You recite that the Constable submitted a new oath of office and the required bond but that the Hidalgo County Commissioners Court did not and has not approved the bond.[2] See id. Finally, you state that the "Supreme Court of the United States denied the Constable's [petition for] writ of certiorari on February 22, 2011 thus finalizing the Original Judgment and felony conviction." Id.; see Bazan v. Tex., 131 S.Ct. 1482 (2011).

You ask several questions regarding the possible vacancy in the Precinct Five constable office. See Request Letter at 2. You first ask:

Does the finalization of a conviction, a conviction which was originally rendered prior to a Constable's re-election for the office, remove the Constable from the office to which he was re-elected as a matter of law, requiring no official action and thus creating a vacancy for such public office?

Id.[3] Section 87.031 of the Local Government Code provides that "[t]he conviction of a county officer by a petit jury for any felony ... operates as an immediate removal from office of that officer." TEX. LOC. GOV'T CODE ANN. § 87.031(a) (West 2008). At the same time, section 87.001 provides that "[a]n officer may not be removed under this chapter for an act the officer committed before election to office." Id. § 87.001. With the Constable now in a new term, your question asks us to determine whether section 87.001 prohibits the removal of the Constable under section 87.031 for a conviction arising from an illegal act committed prior to the new term. The Texas Supreme Court, considering this very Constable's case, has held that section 87.001 does not prohibit the Constable's removal under section 87.031. See In re Bazan, 251 S.W.3d 39, 44-45 (Tex. 2008) (construing section 87.001's limitation to pre-election acts to apply to only the civil removal proceedings in chapter 87). The Court in Bazan noted the different constitutional sources behind section 87.001 and section 87.031: It observed that section 87.001 derives from article V, section 24, and that section 87.031 stems from article XVI, section 2. See id. The court distinguished article V, section 24, which provides for the removal of specified officers for official misconduct, from article XVI, section 2, which excludes persons convicted of high crimes from holding office. See id. It concluded that because "the constitution makes no allowance for high crimes that predate an officer's election, section 87.001's limitation for prior acts can only refer to official misfeasance that is, itself, not disqualifying and thus is prosecuted in a civil removal proceeding." Id. at 44.

Absent the limitation of section 87.001, we consider whether the removal of a convicted officer after all appeals have been exhausted is automatic as a matter of law. By its plain language, section 87.031 states that the conviction of a county officer by a petit jury for any felony operates as an immediate removal from office of that officer. See TEX. LOC. GOV'T CODE ANN. § 87.031(a) (West 2008). Though various Texas courts of appeals have issued differing decisions about the formal requisites of a removal under subsection 87.031(a), the courts do not disagree that in the event there is a final judgment of conviction, the removal from office after conviction is automatic. See Trevino v. Barrera, 536 S.W.2d 75, 77 (Tex. Civ. App.-San Antonio 1976, orig. proceeding) ("The removal, according to the statute, results automatically from the fact of conviction, and not from the recital in the judgment which merely reflects the effect of such conviction."), Eckels v. Gist, 743 S.W.2d 330, 332 (Tex. App.-Houston [1st Dist.] 1987, orig. proceeding) (concluding that the word conviction in subsection 87.031(a) requires a final judgment entered on the verdict of guilty); see also Leo v. Mancias, 885 S.W.2d 268, 270 (Tex. App.-Corpus Christi 1994, orig. proceeding) (construing section 201.024 of the Election Code to require a final judgment before an office is considered vacant). Further, the Election Code provision governing the time a vacancy in office occurs provides that "[i]f an officer is removed from office by a court or other tribunal, a vacancy occurs on the date the judgment becomes final." TEX. ELEC. CODE ANN. § 201.024 (West 2003). While a final judgment of conviction from the trial court is normally sufficient to trigger an automatic vacancy, section 87.032 provides that an appeal of the conviction supersedes the removal unless the trial court orders otherwise. See TEX. LOC. GOV'T CODE ANN. § 87.032 (West Supp. 2011). Because you tell us that the Constable has exhausted all available appeals, that provision no longer applies. Accordingly, an officer's removal due to a final felony criminal judgment of conviction is automatic and effective as a matter of law, thus creating a vacancy for the office without need of further official action.[4] Because of our conclusion here, we do not address your last question, which involves an alternative avenue to remove the Constable. See Request Letter at 2.

Your remaining question involves the constitutional holdover provision. See id. at 2 (citing article XVI, section 17, Texas Constitution). Article XVI, section 17, provides that "[a]ll officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified." TEX. CONST. art. XVI, § 17. You suggest that the failure of the commissioners court to accept the Constable's bond after his election to a new term in 2008 means that the Constable was not a "duly qualified" successor such that the interim constable, as the "person appointed to complete the term prior to 2008 election, [holds] over to the new term." Request Letter at 2. The issue concerning the commissioners court's acceptance of the Constable's proffered bond is not dispositive. This office has recognized that if a person who is elected to an office does not complete a step necessary to qualify for the office, the person may still be a de facto officer. Tex. Att'y Gen. LO-96-056, at 2. A de facto officer is "one who acts under color of a known and valid appointment, but has failed to conform to some precedent requirement, as to take the oath, give a bond, or the like." See id. (citing Williams v. State, 588 S.W.2d 593, 595 (Tex. Crim. App. [Panel Op.] 1979)). "Determining that someone is a de facto officer requires the resolution of fact questions ...." Id. (citing Henry v. State, 828 S.W.2d 312, 314-15 (Tex. App.-Fort Worth 1992, writ ref'd)). To the extent the Constable may have been the de facto officer upon his election in 2008, there would have been no open office to which the interim constable could hold over. Because the determination about the Constable's de facto officer status involves fact issues that we cannot resolve, we cannot answer your question. See id. at 3 ("Whether the de facto doctrine will apply in a given case is a fact question that cannot be resolved in an attorney general opinion."). Moreover, we believe the question is now moot because the person who had been appointed interim constable was recently appointed constable[5] in his own right for the remainder of the term ending December 31, 2012. See Tex. Att'y Gen. Op. Nos. GA-0334 (2005) at 11 (declining to address moot questions), GA-0159 (2004) at 5 (same).

SUMMARY

Under the Texas Supreme Court opinion In re Bazan, a constable who was convicted of a felony but whose appeals were exhausted only after he was reelected to a new term is removed from office pursuant to subsection 87.031(a) of the Local Government Code.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable John Whitmire, Chair, Senate Comm. on Criminal Justice, to Honorable Greg Abbott, Tex. Att'y Gen. at 2 (Nov. 10, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] See TEX. CONST. art. XVI, § 1 (requiring oath of office); TEX. LOC. GOV'T CODE ANN. § 86.002 (West 2008) (requiring constable to take constitutional oath of office and to execute a bond).

[3] We assume that by "finalization of a conviction," you mean judgment of conviction followed by the exhaustion of all available appeals.

[4] Under the Election Code, such a felony conviction also serves to disqualify the person from holding future public elective office. See TEX. ELEC. CODE ANN. § 141.001(a)(4) (West 2010) ("To be eligible to be a candidate for, or elected or appointed to, a public elective office in this state, a person must: ... (4) have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities ....").

[5] See Press Release, The County of Hidalgo, Texas, Daniel Marichalar Sworn in as Pct. 5 Constable (Nov. 17, 2011) (on file with the Opinion Committee). We also understand that the Precinct Five constable's office has been abolished with the newly appointed constable serving until December 31, 2012. See Brief from Honorable Rene Guerra, Hidalgo Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 3 (Dec. 9, 2011) (on file with the Op. Comm.).