Full Opinion (html_with_citations)

             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________
          No. 02-22-00247-CV
     ___________________________

 DONALD WAYNE STEVENS, Appellant

                    V.

    THE STATE OF TEXAS, Appellee



  On Appeal from the 97th District Court
           Archer County, Texas
     Trial Court No. 2021-0149A-CV


   Before Bassel, Womack, and Walker, JJ.
         Opinion by Justice Walker
                                      OPINION

      In this quo warranto proceeding, Appellant Donald Wayne Stevens appeals

from the trial court’s judgment ousting him from the office of constable in Archer

County, Texas. In a single issue, Stevens argues that the trial court’s judgment was

based on an erroneous conclusion of law related to whether he provided evidence of a

permanent peace officer license to the commissioners court as required by subsection

86.0021(b) of the Texas Local Government Code. See Tex. Loc. Gov’t Code Ann.

§ 86.0021(b). We will reverse and render in Stevens’s favor.

            I. CONSTABLE QUALIFICATIONS AND REMOVAL

      Section 86.0021 of the Texas Local Government Code outlines the eligibility

requirements for holding the office of constable. Id. Among other possible qualifiers,

a person is eligible to serve as constable if he is “an active or inactive licensed peace

officer.” Id. § 86.0021(a)(1)–(2). Further, “[o]n or before the 270th day after the date

a constable takes office, the constable shall provide, to the commissioners court of the

county in which the constable serves, evidence that the constable has been issued a

permanent peace officer license under Chapter 1701, Occupations Code.”                Id.

§ 86.0021(b). A constable who fails to provide such evidence forfeits his office and is

subject to removal in a quo warranto proceeding. Id.




                                           2
                                 II. BACKGROUND

                              A. FACTUAL BACKGROUND

      The material facts in this case are undisputed. Stevens was elected as constable

in Archer County, Texas, and took office on January 1, 2021. He had previously

served as a constable in Archer County from 2005–2008. When he took office in

January 2021, Stevens held a permanent peace officer license that was originally issued

to him in 2002 by the Texas Commission on Law Enforcement (TCOLE). However,

his license had been on inactive status since 2013 because he had not satisfied

TCOLE’s continuing education requirements.1

      On February 8, 2021, Stevens provided two TCOLE documents to the Archer

County Judge: a completed Appointment Application Form L-1 (L-1) and a copy of

his then-current Personal Status Report (PSR).2 The L-1 was an application that


      1
        A TCOLE official testified that a permanent peace officer license includes
both active and inactive licenses. The parties stipulated before trial that Stevens
maintained an inactive permanent peace officer license from January 1, 2021, until it
became active on November 15, 2021. The State concedes on appeal that Stevens
has, at all relevant times, held a permanent peace officer license.
      2
        At trial, Stevens testified that he provided both of these documents to the
county judge at the same time on February 8, 2021. The county judge testified that he
only remembered receiving the L-1 but did not dispute that Stevens also gave him a
copy of his PSR. Further, in the statement of facts of his appellant’s brief, Stevens
again states, with supporting record references, that he provided a copy of his PSR to
the county judge on February 8, 2021—a fact that the State does not contradict in its
appellee’s brief. For these reasons, we will accept this fact as true. See Tex. R. App.
P. 38.1(g) (providing that appellate courts in civil cases “will accept as true the facts
stated [in an appellant’s brief] unless another party contradicts them”); see also State v.
City of Double Horn, No. 03-19-00304-CV,
2019 WL 5582237
, at *3 (Tex. App.—

                                            3
TCOLE required from Stevens upon his election to office.3 On it, Stevens had

written his TCOLE license number and other identifying information and had also

acknowledged that he was a license holder with a more than 180-day break in service.

The county judge signed the L-1, certifying that he was the chief administrative officer

of Archer County and that the county “ha[d] on file and readily accessible to

[TCOLE] the appropriate documents to show that [Stevens] meets the minimum

standards for licensing and/or appointment.” The PSR listed all of Stevens’s peace

officer service records, including the date that he originally obtained his peace officer

license, the date that he entered into inactive status, and the dates during which he

had served as constable. It also showed all of the peace officer positions that Stevens

had held over the years, including a stint as an officer with the Archer County

Sheriff’s Department in 2002.

      Stevens and the county judge also had multiple conversations regarding the

qualification requirements for the office of constable. The county judge was aware

that Stevens had been licensed in the past as a peace officer and also that Stevens’s

license was inactive when he took office in January 2021. Additionally, Stevens spoke

with the Archer County sheriff and county attorney about the fact that his permanent

Austin Oct. 30, 2019, pet. denied) (“A quo warranto suit is a civil proceeding
governed by the rules applicable to all civil actions.”).
      3
        According to Stevens, TCOLE informed him that he needed to have the
county judge sign the L-1 for “notification” purposes “because it had [Stevens’s]
licensing on it.”


                                           4
license was inactive and his plans to reactivate it. And the county attorney had been

in contact with TCOLE and the Texas Attorney General’s office regarding the matter.

      In Archer County, an item can typically be placed on the commissioners court

agenda by presenting that item to the county judge, another member of the

commissioners court, the county clerk, or the county treasurer.4 Stevens did not

present the L-1 or PSR to any other county official, and he never attended a meeting

of the commissioners court. He also never specifically requested the county judge—

or any other county official—to present the documents at a commissioners court

meeting.

      Between October 2020 and November 2021, Stevens took steps to reactivate

his license with TCOLE, which included completing the requisite continuing

education courses and taking a reactivation exam. After delays brought on by the

COVID-19 pandemic and Stevens’s failing the exam on his first attempt, his license

was eventually placed back into active status on November 15, 2021.            Stevens

immediately contacted the county judge and county attorney to inform them that his

license had been reactivated.




      4
         For example, after taking office Stevens gave the county treasurer a copy of a
certificate showing that he had recently completed a TCOLE newly-elected
constable’s course. This certificate was then given to the county clerk, who included
it in a packet with other documents to be considered at the next commissioners court
meeting.


                                          5
                          B. PROCEDURAL BACKGROUND

      On December 13, 2021, the State filed a suit in quo warranto seeking to

remove Stevens from office for noncompliance with Local Government Code

Subsection 86.0021(b). The State alleged that Stevens did not have a permanent

license by September 29, 20215—the 271st day after he took office—and that he had

failed to provide evidence of permanent peace officer licensing to the commissioners

court by that date.

      After a bench trial, the trial court entered a judgment ousting Stevens from

office. In its findings of fact, the trial court found that Stevens “did not maintain an

active permanent peace officer license before September 29, 2021” and “did not

provide evidence of an active permanent peace officer license to the Archer County

Commissioners Court before September 29, 2021.” The trial court also made the

following conclusions of law:

   • “Local Government Code § 86.0021 requires a constable to maintain an active
permanent peace officer license within 270 days of being sworn into office.”

   • “Local Government Code § 86.0021 places the responsibility on a constable to
provide evidence of an active permanent peace officer license to the commissioners
court within 270 days of being sworn into office.”

   • “Because [Stevens] failed to maintain an active permanent peace officer license
within 270 days of being sworn into office, [Stevens] has forfeited his office.”



      5
        The State has since abandoned this argument and, as noted above, concedes
that Stevens has held a permanent license since 2002.


                                           6
    • “Because [Stevens] failed to provide evidence of an active permanent peace
officer license to the Archer County Commissioners Court within 270 days of being
sworn into office, [Stevens] forfeited his office.”

                                 III. DISCUSSION

      Stevens contends on appeal that the trial court reversibly erred by concluding

that subsection 86.0021(b) requires a constable to maintain an active permanent peace

officer license and that Stevens forfeited his office by failing to show evidence of an

active permanent license to the commissioners court within the 270-day window.

Stevens requests that we render judgment in his favor, arguing that, because the

material facts are undisputed, the only questions left for the resolution of the case

require de novo review. The State responds that the trial court judgment should be

upheld because Stevens failed to provide evidence of any licensing directly to the

commissioners court as required under subsection 86.0021(b).           We agree with

Stevens.

                A. THE CONCLUSIONS OF LAW WERE ERRONEOUS
                      AND LED TO IMPROPER JUDGMENT

                     1. Standard of Review and Relevant Law

      We review a trial court’s conclusions of law de novo. BMC Software Belgium,

N.V. v. Marchand,
83 S.W.3d 789, 794
 (Tex. 2002); Wise Elec. Coop., Inc. v. Am. Hat Co.,
476 S.W.3d 671, 679
 (Tex. App.—Fort Worth 2015, no pet.). A conclusion of law

will be reversed if it is erroneous as a matter of law and led to the rendition of an

improper judgment. Marchand,
83 S.W.3d at 794
; Wise Elec.,
476 S.W.3d at 679
; In re


                                           7
J.J.L.-P.,
256 S.W.3d 363, 376
 (Tex. App.—San Antonio 2008, no pet.); see Tex. R.

App. P. 44.1(a) (providing that no error in a civil case may be reversed on appeal

unless the error “probably caused the rendition of an improper judgment”).

                                      2. Analysis

      The trial court’s conclusion of law that subsection 86.0021(b) “requires a

constable to maintain an active permanent peace officer license within 270 days of

being sworn into office” is erroneous as a matter of law. Subsection 86.0021(b) does

not require a constable to maintain an active license within the 270-day window, only a

permanent license.      The evidence established—and the parties agree—that a

permanent license includes both active and inactive licenses. This distinction is

important under the facts of this case where it was undisputed that Stevens

maintained an inactive but permanent license at all relevant times.

      All of the trial court’s conclusions flow from its mistaken recitation of the law.

The judgment—proceeding under this erroneous recitation—concludes that Stevens

forfeited his office because he did not “provide evidence of an active permanent

peace officer license to the Archer County Commissioners Court within 270 days of

being sworn into office . . . .” In short, the trial court imposed upon Stevens a

statutory duty that did not exist. Thus, we hold that the erroneous conclusions of law

are reversible because they “probably caused the rendition of an improper judgment.”

See Tex. R. App. P. 44.1(a).



                                            8
             B. STEVENS SUBSTANTIALLY COMPLIED WITH § 86.0021;
                     RENDITION IS THE PROPER REMEDY

      Having held that the trial court reversibly erred, we must now determine the

appropriate remedy. Because the material facts are undisputed in this case, we will

review de novo whether Stevens provided evidence of a permanent peace officer

license to the commissioners court within 270 days of taking office as required by

subsection 86.0021(b), and then render judgment accordingly. See Tex. Loc. Gov’t

Code Ann. § 86.0021(b).

                      1. Standard of Review and Relevant Law

      Appellate courts review legal determinations de novo and “[w]hat might

otherwise be a question of fact becomes one of law when the fact is not in dispute or

is conclusively established.” Reliance Nat. Indem. Co. v. Advance’d Temporaries, Inc.,
227 S.W.3d 46, 50
 (Tex. 2007); Bianchi v. State,
444 S.W.3d 231, 246
 (Tex. App.—

Corpus Christi–Edinburg 2014, no pet.); see City of San Antonio v. Tenorio,
543 S.W.3d 772, 776
 (Tex. 2018) (“Whether a governmental unit has actual notice is a fact

question when the evidence is disputed, but it is a question of law when the evidence

is undisputed.”); cf. G.T. Leach Builders, LLC v. Sapphire V.P., LP,
458 S.W.3d 502, 511

(Tex. 2015) (holding that, when the relevant facts are undisputed, whether a party

waived its right to arbitrate is a question of law for reviewing court to decide); Meyer v.

Cathey,
167 S.W.3d 327, 330
 (Tex. 2005) (“Where the underlying facts are undisputed,

determination of the existence, and breach, of fiduciary duties are questions of law,


                                            9
exclusively within the province of the court.”) (internal quotations omitted); Klein v.

Century Lloyds,
154 Tex. 160, 163
,
275 S.W.2d 95, 97
 (1955) (“While the question of

whether notice was given ‘as soon as practicable’ is ordinarily a question of fact, if, as

in this case, the facts are undisputed, the question then becomes a question of law for

determination by the court.”). Ordinarily, when a trial court judgment is reversed

after a bench trial solely on a question of law, appellate courts are to render the

judgment that the trial court should have rendered. Leteff v. Roberts,
555 S.W.3d 133, 139
 (Tex. App.—Houston [1st Dist.] 2018, no pet.); see Tex. R. App. P. 43.3 (“When

reversing a trial court’s judgment, the court must render the judgment that the trial

court should have rendered” unless remand is necessary for further proceedings or

required in the interests of justice); Bianchi,
444 S.W.3d at 250
 (reversing and rendering

in a quo warranto proceeding where the undisputed facts established that a county

attorney was not guilty of unlawfully holding his office).

      A person may be said to have substantially complied with certain statutory

requirements if they fulfill the ultimate purpose of the statute. See Sorrell v. Estate of

Carlton,
593 S.W.3d 167
, 173 (Tex. 2017) (holding that “substantial compliance is

insufficient to satisfy a statutory deadline, [but] it may be sufficient to comply with

other statutory requirements”); Roccaforte v. Jefferson Cnty.,
341 S.W.3d 919, 926
 (Tex.

2011) (holding that substantial compliance with notice requirement was sufficient

because “[t]he statute was not intended to create a procedural trap” when it is

undisputed that the appropriate officials have notice); see also Washington v. Related

                                           10
Arbor Court, LLC,
357 S.W.3d 676, 681
 (Tex. App.—Houston [14th Dist] 2011, no

pet.) (collecting cases to show that “a wide range of Texas cases hold[] that statutory

notice requirements may be satisfied by a method of service other than the prescribed

statutory method when” the intended recipient acknowledges receipt and has actual

knowledge of the necessary information); S. Sur. Co. v. McGuire,
275 S.W. 845, 847

(Tex. App.—El Paso 1925, writ ref’d) (holding that oral presentment of a claim to the

commissioners court rather than written presentment as required by then-operative

notice statute was sufficient because the purpose of the statute was not to “impose

any technical nicety in the manner of the claims presented” but rather to advise the

court of claims against the county); cf. Warner Bros. Entertainment, Inc. v. Jones,
611 S.W.3d 1
, 13 (Tex. 2020) (holding that Defamation Mitigation Act requirement

that plaintiffs request in writing a correction to the offending publication before filing

a defamation suit was fulfilled, among other reasons, because the plaintiff had

complied with the Act’s “expressly stated purpose”).

                                      2. Analysis

      In Roccaforte, the Texas Supreme Court was tasked with deciding whether a

person had met the notice requirements of Texas Local Government Code

Section 89.0041, which requires plaintiffs suing a county to provide written notice of

their claim to the county judge and county attorney by certified or registered mail or

risk having their suit dismissed. Roccaforte,
341 S.W.3d at 926
. There, the plaintiff did

not mail a written notice but instead served the county judge and county attorney with

                                           11
personal service of process.
Id. at 920
. The court held that this notice substantially

complied with Section 89.0041, a non-jurisdictional statute, because it fulfilled the

purpose of the statute—to ensure that the proper county officials were made aware of

the pending suit so as to properly answer and defend against it.
Id.
 at 926–27.

      We believe that Roccaforte’s reasoning applies well to this case where the statute

at issue is likewise not jurisdictional—in fact it does not relate at all to pre- or post-

suit notice—and places only an ill-defined and broad duty upon constables to

“provide . . . evidence” to the commissioners court. See Tex. Loc. Gov’t Code Ann.

§ 86.0021(b). Subsection 86.0021(a) states that a person is eligible to hold the office

of constable if he is an active or inactive licensed peace officer. Id. § 86.0021(a).

Subsection 86.0021(b) provides that a constable forfeits his office unless, “[o]n or

before the 270th day after the date a constable takes office, the constable [] provide[s],

to the commissioners court of the county in which the constable serves, evidence that

the constable has been issued a permanent peace officer license under Chapter 1701,

Occupations Code.” Id. § 86.0021(b).

      Thus, the apparent purpose of subsection 86.0021(b) is to ensure that the

commissioners court has timely notice that a newly-elected constable holds either an

active or inactive permanent peace officer license. See id. Stevens contends that he

complied with this requirement when he provided copies of his L-1 and PSR to the

county judge on February 8, 2021. The State contends that simply providing the

documents to the county judge without explanation or a specific request that they be

                                           12
presented to the entire commissioners court was not enough to comply with

subsection 86.0021(b). We disagree with the State and hold that Stevens substantially

complied with subsection 86.0021(b)’s notice requirement. See Roccaforte,
341 S.W.3d at 926
.

      Stevens gave copies of his L-1 and PSR to the county judge on February 8,

2021—well within the 270-day window. This documentation showed that Stevens

was a licensed peace officer who, at the time of taking office, had been on inactive

status since 2013. The PSR showed that he had worked as a peace officer in multiple

capacities for more than a decade, including as an officer for the Archer County

Sheriff’s department in 2002. And on the L-1, the county judge acknowledged with

his signature that the county had on file “the appropriate documents to show that

[Stevens] [met] the minimum standards for licensing and/or appointment.” Beyond

providing these documents, Stevens also had multiple conversations with the county

judge and county attorney about his licensing status and the progress he was making

toward reactivating his license. The county judge testified that a person can have an

item added to the Archer County Commissioners Court’s agenda by first presenting

that item to the county judge.

      Thus, Stevens provided to the Archer County Judge (the presiding officer of

the commissioners court, see Tex. Const. art. V, § 18) and the Archer County Attorney

(the county’s legal advisor, see Tex. Gov’t Code Ann. § 41.007) evidence that he held a

permanent peace officer license. The county judge was an acknowledged conduit

                                          13
through which evidence of this licensing could have been added to the commissioners

court agenda, and Stevens had no general right to speak at a commissioners court

meeting concerning his licensing unless the issue was first placed onto the agenda. See

Tex. Gov’t Code Ann. §§ 551.001(3)(B), 551.002, 551.007 (requiring only that public

testimony be allowed regarding items placed on the meeting agenda); Charlestown

Homeowners Ass’n, Inc. v. LaCoke,
507 S.W.2d 876, 883
 (Tex. App. Dallas—1974, writ

ref’d); Op. Tex. Att’y Gen.No. JC-0169 (2000). That Stevens had previously served as

both a constable and sheriff’s deputy in Archer County is further evidence that the

commissioners court was fairly apprised that he held a permanent peace officer

license. For these reasons, we conclude that the purpose of subsection 86.0021(b)’s

notice requirements was fulfilled in this case.

      To hold otherwise would create a procedural trap that could lead to a duly-

elected constable forfeiting his office even after providing timely, sufficient licensing

evidence to a county official who is recognized as one channel through which items

are regularly placed on the commissioners court agenda. See Roccaforte, 341 S.W. at

926–27. All it would take is for that evidence to then be kept—either inadvertently or

purposefully—from ever appearing on the court’s agenda for 270 days. This is

precisely what happened to Stevens here.

      The State argues that merely providing evidence to the county judge did not

suffice to fulfill Stevens’s obligations under subsection 86.0021(b) because Texas

courts have held that the commissioners court can act only as a single body and

                                            14
cannot be bound by the unauthorized action of one member. This argument is

unavailing because the situation at hand does not involve any unauthorized action by

the county judge. Rather, the issue here may be more aptly construed as one of

inaction, specifically the county judge’s failure to place the evidence provided by

Stevens before the commissioners court. The county judge took no action—much

less any unauthorized action—to bind the commissioners court to anything. And

ultimately, the commissioners court had no say in approving Stevens’s candidacy—it

was merely entitled to evidence of his licensing, which it received for purposes of

subsection 86.0021(b).

                               IV. CONCLUSION

      Accordingly, having held that the trial court reversibly erred and that the

undisputed evidence shows that Stevens substantially complied with the requirements

of subsection 86.0021(b), we reverse the trial court’s judgment and render a take-

nothing judgment against the State. See Tex. R. App. P. 43.3.


                                                     /s/ Brian Walker

                                                     Brian Walker
                                                     Justice

Delivered: December 15, 2022




                                          15