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401 S.W.3d 921
Tex. App.
2013
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Background

  • 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)
Read the full case

Case Details

Case Name: in Re: Derick Dewayne Evans
Court Name: Court of Appeals of Texas
Date Published: May 31, 2013
Citations: 401 S.W.3d 921; 2013 WL 2370548; 2013 Tex. App. LEXIS 6804; 05-13-00022-CV
Docket Number: 05-13-00022-CV
Court Abbreviation: Tex. App.
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    in Re: Derick Dewayne Evans, 401 S.W.3d 921