McInnis v. State

603 S.W.2d 179, 23 Tex. Sup. Ct. J. 433, 1980 Tex. LEXIS 358

• Court: Texas Supreme Court
• Decided: June 18, 1980
• Docket: B-8752
• Status: Published

Opinions

ON MOTION FOR REHEARING

STEAKLEY, Justice.

The State of Texas, acting through the Texas Prosecutors Coordinating Council, brought this suit under Art. 332d¹ to remove Oscar B. Mclnnis from the office of Criminal District Attorney of Hidalgo County. Mclnnis’ motion to dismiss the suit was granted by the trial court. Upon appeal, the order was reversed by the Court of Civil Appeals and the cause was remanded for a trial on the merits. 586 S.W.2d 890.

Upon the application for writ by Mclnnis, we wrote by Per Curiam that Art. 5986 applies to this Art. 332d proceeding and precludes removal of Mclnnis from office for acts of misconduct that occurred before his reelection. Upon motion for rehearing by the State we withdrew the Per Curiam opinion and granted the application for writ. We now determine that the enactment of Art. 332d preempted the proceeding prescribed by Art. 5970, et seq., infra, including the application of Art. 5986, with respect to the removal from office of prosecuting attorneys.²

Mclnnis was elected Criminal District Attorney for a four-year term, beginning January 1,1975, and ending December 31,1978, and reelected for another term beginning January 1, 1979. On August 1,1978, he was indicted by a federal grand jury for perjury and conspiracy to commit murder. This suit thereafter filed by the Council sought his removal from office for misconduct as defined in Art. 3S2d, § 10(b)(2). The removal petition alleged perjury, solicitation of murder, conspiracy to commit murder, violations of § 39.01 of the Penal Code, and willful conduct inconsistent with the performance of official duties. See Art. 332d, § 10(b)(2).

Mclnnis thereafter filed a motion to dismiss the State’s petition by invoking Art. 5986 which provides that “No officer in this State shall be removed from office for any act he may have committed prior to his election to office.” In response thereto, the trial court dismissed the cause with prejudice. It was stated in the order that “all claimed acts, behavior and conduct set out or alleged . . . occurred, according to the said pleadings of the State, prior to the election of Oscar B. Mclnnis to office for the term commencing January 1, 1979.”

Upon appeal by the State, the Court of Civil Appeals ruled that Art. 5986 was applicable to the proceeding but that the statute did not preclude removal of Mclnnis from the office. The cause was remanded for trial under the “forgiveness” doctrine. See In re Bates, 555 S.W.2d 420 (Tex.1977); In re Carrillo, 542 S.W.2d 105 (Tex.1976); In re Brown, 512 S.W.2d 317 (Tex.1974) and In re Laughlin, 153 Tex. 183, 265 S.W.2d 805 (1954).

Art. 332d was enacted by the Legislature in 1977. See Tex.Rev.Civ.Stat.Ann. art. 332d. These several provisions are particularly pertinent:

Sec. 1. The Legislature of the State of Texas finds and declares that a uniform quality of prosecution will aid in improving the efficiency and effectiveness of the state's criminal justice system. The legislature recognizes that the prosecutor performs an executive function which has a significant effect on the judicial branch and on law enforcement. To this end, it is the purpose of this Act to provide a centralized agency capable of delivering technical assistance, educational services, and professional development training to the prosecutors of Texas and their assistants and to improve the administration of criminal justice through professionalization of the prosecuting attorney’s office.

Section 3.

(3)(b) For purposes of this Act, “prosecuting attorney” means the person who holds the office of county attorney, district attorney, or criminal district attorney, and represents the State of Texas in criminal cases. .

Section 10. (a) A prosecuting attorney may be reprimanded, disqualified, or removed from office as hereinafter provided.

(b) For purposes of this Act:

(1) “incompetency” means:

(A) gross ignorance or neglect of official duty;

(B) physical or mental defect which prohibits the prompt or proper discharge of official duties; or

(C) failure to maintain the qualifications required by law for election to the office.

(2) “misconduct” means:

(A) any unlawful behavior defined in Chapter 39 of the Penal Code;

(B) any act which is a felony or a misdemeanor involving moral turpitude; or

(C) willful or persistent conduct which is clearly inconsistent with the proper performance of official duties.

(c) A prosecuting attorney is disqualified from performing the duties and functions or exercising the privileges of his office when a petition for removal from office has been filed against him as provided in this Act.

(d) A prosecuting attorney shall be suspended from office when:

(1) he has been disbarred or suspended from the practice of law in the State of Texas, whether through trial or upon agreement;

(2) he has been found guilty in a court of competent jurisdiction of any felony or any misdemeanor involving moral turpitude;

(3) a finding of incompetency or misconduct following a trial on the merits of a petition for removal.

(e) A prosecuting attorney shall be removed from office upon final adjudication or conviction for any cause of action which was the basis for his suspension.

(g)

(1) After 'investigation of a complaint of prosecutor incompetencv or misconduct. the council may, in its discretion, issue a private reprimand, order a hearing to be held before the council, or request the Supreme Court to appoint a master to hold a hearing.

(2) The Supreme Court shall by rule provide for the procedure before the council and masters in hearings relating to the investigation of complaints of prosecuting attorney incompetency or misconduct, consistent with this Act and due process of law.

(h) Upon the appointment of a master, notice shall be given to the prosecuting attorney who is the subject of any complaint or investigation, specifying the matters under investigation and the complaint against him and setting a formal hearing for the first Monday next after the expiration of 10 days after the service thereof.

(i) After the conclusion of the hearing, the master shall file with the council a statement of his findings of fact, together with a complete transcript of all proceedings had in the cause. Such findings and transcripts shall be filed with the council not later than 30 days after the date set for the hearing to commence. For good cause shown, the council may, in its discretion, extend the time for filing such findings and transcripts.

(j) All proceedings and records before the council or a master shall be confidential and privileged until such time as they are introduced in evidence in any proceeding for removal.

(k) If. after examining the records and proceedings before it. the council finds by majority vote of the council membership good cause therefor, it shall cause to be filed in the district court of the county in which the prosecuting attorney resides a petition for removal. Such petition shall be filed in the name of the State of Texas and docketed on the civil docket of the court. Such petition shall allege incompetency or misconduct, together with the facts which form the basis of the allegations. The trial on a petition for removal shall proceed in accordance with the Texas Rules of Civil Procedure and shall have priority on the docket of the court.

(l) When a petition for removal is filed pursuant to this section, the judge of the court in which it is filed shall request the appointment of a special judge who shall hear the case. Upon appointment, the special judge shall appoint an attorney to prosecute the case, such counsel to be selected from a list of not less than five qualified attorneys submitted by the council.³

Art. 5970, et seq., including Art. 5986, apply to “All district and county attorneys” and to all county officers. These prescribed procedures are materially different from those encompassed within Art. 332d governing the removal of prosecuting attorneys, who are defined as inclusive of county, criminal or district attorneys. The Art. 5970, et seq., proceeding, for example, may be initiated by a citizen of the State. An Art. 332d proceeding is initiated in the district court by the Council only after extensive investigation which may include a hearing by a master appointed by the Supreme Court. Section 10(e) requires the appointment of a special judge to hear the case, and the appointment of an attorney to prosecute the case. No such requirements attach to the Art. 5970, et seq., proceeding.

There is a direct repugnance between the provisions of the old and new statutes and they cannot be construed so as to give effect to both statutes with respect to the subject matter of the new statute, i. e., the removal of prosecuting attorneys from office. Cf. Standard v. Sadler, 383 S.W.2d 391 (Tex.1964). As written in St. Louis S. W. Ry. Co. v. Kay, 85 Tex. 558, 22 S.W. 665 (1893), it is not reasonable to suppose that while the new statute prescribed a new procedure better adjusted to the wrong which was sought to be repressed, the Legislature nevertheless intended for this limited class to remain subject to that which had formerly been prescribed.

A statute may be repealed expressly or by implication. Where a later enactment is intended to embrace all the law upon the subject with which it deals, it repeals all former laws relating to the same subject. Gordon v. Lake, 163 Tex. 392, 356 S.W.2d 138 (1962). Under this rule, a statute that covers the subject matter of a former law and is evidently intended as a substitute for it, although containing no express words to that effect, operates as a repeal of the former law to the extent that its provisions are revised and its field freshly covered. See Motor Inv. Co. v. Hamlin, 142 Tex. 486, 179 S.W.2d 278 (1944). It has been repeatedly recognized that a statute intended to prescribe the only rules governing a particular area of law repeals prior statutes which prescribe other rules in that same area of law. “So a subsequent statute, revising the subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate to repeal the former, to the extent to which its provisions are revised and supplied.” Bryan v. Sundburg, 5 Tex. 418 at 423 (1849). See also, Rogers v. Watrous, 8 Tex. 62 (1852); Tunstall v. Wormley, 54 Tex. 476 (1881); St. Louis S. W. Ry. Co. v. Kay, supra; Motor Inv. Co. v. City of Hamlin, supra; Bank of Atlanta v. Fretz, 148 Tex. 551, 226 S.W.2d 843 (1950); First Nat. Bank v. Lee County Cotton Oil Co., 274 S.W. 127 (Tex.Comm’n App.1925); State v. Houston Oil Co. of Texas, 194 S.W. 422 (Tex.Civ.App.1917, writ ref’d); Meek v. Wheeler County, 125 S.W.2d 331 (Tex.Civ.App.1939), aff’d, 135 Tex. 454, 144 S.W.2d 885 (1940); Commercial Credit Co. v. American Mfg. Co., 155 S.W.2d 834 (Tex.Civ.App.1941, writ ref’d).

The judgment of the Court of Civil Appeals remanding this cause for trial on the merits is affirmed.

Dissenting opinion by McGEE, J., in which GREENHILL, C. J., and BARROW and CAMPBELL, JJ., join.

1 . The references are to Tex.Rev.Civ.Stat.Ann. art. 332d.

2 . We note that this Court in In re Laughlin, 153 Tex. 183, 265 S.W.2d 805 (1954), recognized that Art. 5986 does not apply to the office of district judges but nevertheless applied the spirit of Art. 5986 to a proceeding to remove a district judge. However, it was expressly stated that this applied only to “acts not in themselves disqualifying under the Constitution and laws of this State . . Id. at 808. Here, there is a disqualification under Art. 332d, § 10(c).

3 . All underscoring is added for emphasis.