Terry Ross v. N. Lane Akin

                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00128-CV


TERRY ROSS                                                      APPELLANT

                                     V.

N. LANE AKIN                                                      APPELLEE


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             FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                      TRIAL COURT NO. CV12-06-414

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                       MEMORANDUM OPINION1

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                  I. INTRODUCTION AND FACTUAL BACKGROUND

      This is a summary-judgment appeal.       Appellant Terry Ross, who was

County Commissioner of Precinct Four in Wise County, was indicted for and

pleaded guilty to the Class B misdemeanor offense of “Abuse of Official

Capacity.”   See 

 (West 2011). Subsequently,

      1
      See Tex. R. App. P. 47.4.
pursuant to the provisions of subchapter C of chapter 87 of the Texas Local

Government Code, Appellee N. Lane Akin filed a petition seeking Ross’s removal

from office. See Tex. Loc. Gov’t Code Ann. §§ 87.031–.032 (West 2008 & Supp.

2014); accord In re Evans, 

, 923–24 (Tex. App.—Dallas 2013,

orig. proceeding) (explaining that subchapter B of chapter 87 provides for

removal of certain government officials from office by petition and trial on non-

criminal grounds while subchapter C addresses removal by criminal conviction

involving official misconduct). In due course, Akin filed a motion for summary

judgment, claiming    that he had conclusively established facts—Ross’s

misdemeanor conviction of the offense of abuse of official capacity—that

triggered Ross’s automatic and immediate removal from office under local

government code section 87.031(a).         See Tex. Loc. Gov’t Code Ann.

§ 87.031(a). Following a hearing on the motion for summary judgment, the trial

court granted summary judgment for Akin and also signed a separate order

removing Ross from office.     See id. § 87.031(b) (requiring court rendering

judgment of removal based on misdemeanor conviction involving official

misconduct to include an order removing the officer from office in its judgment).

Ross perfected this appeal and raises three issues.

    II. ROSS’S MISDEMEANOR CONVICTION FOR ABUSE OF OFFICIAL CAPACITY
              IS A MISDEMEANOR INVOLVING OFFICIAL MISCONDUCT

      In his first issue, Ross argues that his conviction for abuse of official

capacity did not require an intent on his part to violate the law so that the


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conviction cannot qualify as “official misconduct” under section 87.031(a) or

trigger that section’s automatic removal provision. In his second issue, Ross

alternatively argues that he at least raised a fact issue on whether his conviction

for abuse of official capacity involved “official misconduct” so that summary

judgment was not proper.

      We examine the terms of the statutes at issue to determine whether

Ross’s conviction for abuse of official capacity meets the definition of “official

misconduct” under chapter 87. The Texas Penal Code provides that a public

servant commits the offense of abuse of official capacity if, with intent to obtain a

benefit or with intent to harm or defraud another, he intentionally or knowingly (1)

violates a law relating to the public servant’s office or employment or (2) misuses

government property, services, personnel, or any other thing of value belonging

to the government that has come into the public servant’s custody or possession

by virtue of the public servant’s office or employment. 

. A person acts intentionally when it is his conscious objective or desire

to engage in the conduct. 

 § 6.03(a) (West 2011). A person acts knowingly

when he is aware of the nature of his conduct or that the circumstances exist. Id.

§ 6.03(b). The offense of abuse of official capacity is a Class B misdemeanor if

the value of the thing misused is $20 or more but less than $500.                 Id.

§ 39.02(c)(2).

      Texas Local Government Code section 87.031 provides:



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            (a) The conviction of a county officer by a petit jury for any
      felony or for a misdemeanor involving official misconduct operates
      as an immediate removal from office of that officer.

            (b) The court rendering judgment in such a case shall include
      an order removing the officer in the judgment.

Tex. Loc. Gov’t Code Ann. § 87.031.           “Official misconduct” is defined as

“intentional, unlawful behavior relating to official duties by an officer entrusted

with the administration of justice or the execution of the law. The term includes

an intentional or corrupt failure, refusal, or neglect of an officer to perform a duty

imposed on the officer by law.” Id. § 87.011(3) (West 2008).

      Ross argues that the offense of abuse of official capacity simply does not

qualify as “official misconduct” under section 87.031(a) of the local government

code because section 87.011’s definition of “official misconduct” requires

intentional, unlawful behavior; Ross asserts that the behavior forming the basis of

his abuse-of-official-capacity conviction was not intentional. In resolving Ross’s

first issue, we limit our analysis to the words of these statutes, and we apply the

plain meaning of the words unless a different meaning is supplied by legislative

definition or is apparent from the context or unless the plain meaning leads to

absurd results.   Molinet v. Kimbrell, 

 (Tex. 2011); Tex.

Lottery Comm’n v. First State Bank of DeQueen, 

 (Tex.

2010).

      In connection with his abuse-of-official-capacity plea agreement, Ross

signed a judicial confession. The judicial confession was included as summary-


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judgment evidence attached to Akin’s motion for summary judgment. The judicial

confession states that Ross committed each and every act alleged in the

indictment. Thus, Ross confessed––as set forth in the indictment that was also

attached to Akin’s summary judgment motion––that Ross did

             then and there, with intent to obtain a benefit or with intent to
      harm or defraud another, intentionally or knowingly misuse
      government property, services or personnel or any other thing of
      value belonging to the government that had come into his custody or
      possession by virtue of his office or employment, by building a
      playhouse for his grandchildren on public property, or by utilizing
      public employees being paid by public funds to help build a
      playhouse for his grandchildren during the employee’s paid working
      hours, or by using building supplies or electrical components
      purchased with public funds to build a playhouse for his
      grandchildren, and the value of the said property, services,
      personnel time or any other thing of value misused by the Defendant
      was $20 or more but less than $500, and the said Defendant was a
      public servant.

As set forth above, Ross judicially confessed that he acted intentionally or

knowingly in the commission of the abuse-of-official-capacity offense when he

misused government property with the intent to obtain a benefit. Applying the

penal code definitions of intentionally and knowingly, Ross judicially confessed

that it was his conscious objective or desire to engage in the conduct of misuse

of government property or that he was aware of the nature of his conduct when

he misused government property. See 

(a), (b).

Ross likewise judicially confessed that the property he had misused had come

into his custody or possession by virtue of the office he held. Ross’s admitted

intentional or knowing misuse of government property that he possessed or had


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custody of as a result of his office as County Commissioner of Precinct Four in

Wise County with the intent to obtain a benefit for himself is—applying the

definition of “official misconduct” provided in chapter 87 of the local government

code—behavior that is “intentional, unlawful behavior relating to official duties by

an officer entrusted with the administration of justice or the execution of the law.”

Tex. Loc. Gov’t Code Ann. § 87.011(3). Juxtaposing the definition of “official

misconduct” provided by the legislature in section 87.011(3) to the facts judicially

confessed by Ross—including Ross’s mental state as defined in the penal code,

we   hold   that   Ross’s   misdemeanor      abuse-of-official-capacity   conviction

constitutes a misdemeanor conviction involving official misconduct that operates

as an immediate removal from office under section 87.031(a) of the local

government code. See id. We overrule Ross’s first issue.2


      2
         Citing article XVI, section 2 of the Texas constitution and In re Bazan, 

, 41–42 (Tex. 2008) (orig. proceeding), Ross also asserts under his
first issue that a person may be excluded from office only if convicted of bribery,
perjury, forgery, or other high crimes. As pointed out by Akin, however, a
distinction exists between eligibility to hold office and removal from office. An
individual convicted of a felony (a high crime) is ineligible to hold public office
whether the conviction comes before or after the individual’s election to office.
Bazan, 

. A county officer convicted of a misdemeanor is
automatically and immediately removed from office only when the misdemeanor
involves official misconduct. Tex. Loc. Gov’t Code Ann. § 87.031(a). Because
Akin’s petition sought Ross’s removal based on Ross’s conviction for a
misdemeanor offense, which we have held involved official misconduct, we do
not further address Ross’s assertion that only the commission of high crimes
excludes a person from office.

      To the extent that Ross’s argument under his first issue may be construed
as asserting that article XVI, section 2 of the Texas constitution authorizes the
passing only of laws removing officials from office for the commission of felonies
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      In his second issue, Ross asserts that a genuine issue of material fact

exists concerning whether his abuse-of-official-capacity conviction qualifies as

“official misconduct” under sections 87.011(3) and 87.031(a) of the local

government code.     As set forth above, Akin’s summary-judgment evidence—

which included the indictment, plea agreement, judicial confession, judgment,

and other papers concerning Ross’s abuse-of-official-capacity conviction—

conclusively established as a matter of law that Ross’s abuse-of-official-capacity

conviction qualified as “official misconduct” under section 87.011(3) and section

87.031(a). See Tex. Loc. Gov’t Code Ann. §§ 87.011(3), .031(a). We overrule

Ross’s second issue.

                             III. ROSS’S THIRD ISSUE

      In his third issue, Ross claims that he was entitled to a jury trial in the

removal case. Ross relies upon article V, section 24 of the Texas constitution

and upon Trevino v. Barrera, 

 (Tex. Civ. App.––San Antonio 1976,

no writ). Ross may or may not be correct in his assertion that a county official

may be entitled to a jury trial in a removal case under subchapter C of chapter


and precludes the passage of laws removing officials from office for the
commission of misdemeanors, he did not raise a constitutional challenge to
chapter 87’s removal-for-misdemeanors-involving-official-misconduct provision in
the trial court, so it is not preserved for our review. See, e.g., Wood v. Wood,

, 358–59, 

 (1959) (explaining that the
“constitutionality of a statute will be considered only when the question is
properly raised and a decision becomes necessary and appropriate to the
disposal of the case and no statute should be overruled without careful and
mature consideration”).

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87; however, we need not decide that issue here because even if Ross was

entitled to trial by a jury on the removal issue, Akin was still entitled to file a

motion for summary judgment, and the trial court was still entitled to grant a

summary judgment if no genuine issues of material fact existed and if Akin

established his right to judgment as a matter of law. See Tex. R. Civ. P. 166a

(providing that the judgment sought shall be rendered if there is no genuine issue

as to any material fact and the moving party is entitled to judgment as a matter of

law on the issues expressly set out in the motion). Because we have held in our

disposition of Ross’s first two issues that no genuine issues of material fact exist

concerning whether Ross’s abuse-of-official-capacity conviction qualifies as a

misdemeanor involving “official misconduct” under local government code section

87.011(3) and that therefore Akin established his right to a judgment of removal

as a matter of law under local government code sections 87.031(a) and

87.031(b), Ross is no longer entitled to a jury trial in any event. We overrule

Ross’s third issue.

                                 IV. CONCLUSION

      Having overruled Ross’s three issues, we affirm the trial court’s judgment.


                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

DELIVERED: December 23, 2014


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