401 S.W.3d 921
Tex. App.2013Background
- Evans, former Dallas County constable, was removed after a jury convicted him of a felony involving official misconduct.
- Evans sought a writ of mandamus to vacate three orders: suspension during appeal, appointment of a temporary successor, and denial of rehearing.
- The trial court suspended Evans pending appeal, appointed Cleophus R. Steele, Jr. to perform duties, and set a $5,000 bond.
- Chapter 87 governs removal; 87.031-87.032 provide removal upon conviction with possible suspension pending appeal if public interest requires.
- Evans argued for an absolute right to supersedeas and noncompliance with 87.017; the court denied mandamus.
- The court ultimately held that the statutory framework controls, supersedeas is not absolute, and the trial court did not abuse its discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to supersede the removal judgment | Evans argues absolute supersedeas, no discretion for court. | State contends public-interest suspension valid; supersedeas not automatic here. | Supersedeas not absolute; court did not abuse discretion denying it. |
| Compliance with bond requirements of 87.017 | Bond lacked two sureties and proper form; error in labeling. | Bond filed and meets statutory requirements; form not defective. | Court did not abuse discretion; bond compliance satisfied. |
| Public-interest basis for suspension pending appeal | Trial court failed to articulate basis for public-interest suspension. | The record evidence at hearing supports suspension; articulation not required by statute. | No abuse for lack of explicit stated basis; sufficient evidence supported suspension. |
| Bond amount and conditioning language | Bond should be payable to Evans if grounds are found insufficient. | Statute does not require that condition; bond used to pay damages/costs. | Setting $5,000 and lack of payable-to-Evans language not an abuse. |
| Compliance with removal procedures and constitutional cues | State must file pleading and jury finding per Article V, Section 24. | Ormes does not apply; indictment and conviction satisfy due removability; no extra pleading required. | Procedures complied; suspension not constitutionally infirm. |
Key Cases Cited
- In re Odyssey Healthcare, Inc., 310 S.W.3d 419 (Tex. 2010) (mandamus standard: clear abuse with no adequate appeal remedy)
- In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (Tex. 2005) (abuse of discretion defined; arbitrariness or misapplication of law)
- In re Bazan, 251 S.W.3d 39 (Tex. 2008) (removal during appeal: public-interest suspension governs supersedeas)
- Fireman's Fund Cnty. Mut. Ins. Co. v. Hidi, 13 S.W.3d 767 (Tex. 2000) (statutory interpretation to give effect to Legislature's intent)
- Ormes v. Quinn, 113 S.W.2d 242 (Tex. Civ. App.—El Paso 1938) (no requirement that a pleading precedes removal in all circumstances)
