Gordon v. State

43 Tex. 330 | Tex. | 1875

Gould, Associate Justice.

Former decisions of this court have given a construction to the clause of the Constitution making sheriffs “ subject to removal by the judge of the District Court for said county for cause spread upon the minutes of the court.” (Constitution, sec. 18, Art. V; Davis v. State, 35 Tex., 118; Ex parte King, Id., 657.)

It has been held, and we think rightly, that this power of removal is not absolute or arbitrary, either as to the manner in which or the causes for which it may be exercised. The sheriff is entitled to notice of the charges against him and to an opportunity to be heard in his defense. The fact of his election is conclusive of his right to the office, unless some subsequent cause justify his removal. “ General allegations of incompetency ” or unfitness constitute no sufficient cause. Some official delinquency, or, we will add, some act or default or occurrence since his election, showing his unfitness for the office, must be alleged against him. Where a removal is made irregularly or for insufficient cause the order or judgment is subject to be revised on appeal. These principles are substantially laid down in the cases referred to, and are believed to give the proper construction to this clause of the Constitution, giving some weight to every part, and at the same time, between two constructions, inclining to that in harmony with other parts of the Constitution and with the rules of the common law. (Cooley’s Const. Dim., 58-60; Bennett v. Ward, 3 Caines, 259.)

As presented in the record, the order of removal appealed from, made March 5, 1875, was without notice to the sheriff, and for causes anterior to the election and commission under which he then held his office. It was therefore erroneous, and must be reversed.

The validity of the previous removal in vacation is not a question before us for decision. It was acquiesced in, a new election had, and Gordon was re-elected and again commissioned. The order appealed from does not assume to be made in pursuance of the motion and notice on which the removal in vacation was founded, but is based on the validity and completeness of the previous removal. The proposition' that by this previous removal Gordon was rendered ineligible to the office during the balance of his original term, is unsupported by anything in the Constitution or in the law as it was at the time the order was made. The act of March 15, 1875, entitled “An act to disqualify certain persons from exercising the functions of offices from which they have been removed,” is subsequent in date to the order of removal, and cannot affect this case. The disability to hold office is part of the penalty affixed by our statutes to certain infamous crimes. (Paschal’s Dig., arts. 1666,1936.) It is not to be imposed on any citizen except by authority given by law.

The motion to dismiss for want of jurisdiction is overruled, and the judgment or order of removal made on March 5,1875, is reversed and the prosecution dismissed.

Reversed and dismissed.