*1 OFFICE OF THE A-ITORNEY GENERAL OF T’EXAS AUSTIN

~c.yllcll ,namn *manIL

son. see Balloy xumphrsy

COUlty AttOrIl@~

Crookatt, Tt3XR8

Deai' SITI

place of the c'epvfetsd man$ PO? desire our optnlon as to whether the aontiction or tbe trustee resulted in his re-

be Oould continue to should be employed srt&b 5908, Revised Cl011 Statutes, reada an ~+~L~'convlctlons by a petit jury of any aedqor chti3tjwfrieers for any felony, or ror any mls- involving of ricsiaf. mlsoonduOt , shall work da---ii.mtmte r~~0val rr0m 0rriae or the ofrloer 80 convicted. Each euoh jud@mnt of conviction ehnll embody within It an orner re- moving such 0frioar.”

The aborn statute speaks only Of OonYlOtlo&3 by petit jurlos, perhaps bsoause when 5.t beoam law them *2 Hoa* Joe Bailey Humphrey, pago 3. &r trid,

oould be no oonviotlon of a rmlony rxoept upon a ~~rtlolr loa, C. C. p., glring to the defendant the r L ht to walr* a jury in a felony oas8 lees than oapltal, upon a plea of guilty and with oowent or the Distriot Attorney and of the Court wan not snaoted until 1931., we are wro in- olined to thk, howevef, that in pasring Arti 3963, with itr requirement or a jury oonriotlon, the Leglr&turr had In mind 88otlon U4, oi ArtlOlt. 3, of the State Constitution, seadine 80 r0uom:

*Couiity mag88, oounty attorneys, olrrks or the Dietriot and county Courts, juetloee or the peaoe, oonstables, and other county oifl- oers, may be removed by the Judges or the Dir- trlot Courts ror inoanpetuioy, 0rfi0id da-

oonduot, habitual cImnkenno8s, or other oausrs defined by law, upon the oauae thereror be- set forth in wrftlng and the finding or its truth by a jury.”

From the opinion of the Supreme Court in Grimes vs.

‘l’hoclfi8, 104 S.Yi. 1058, lo& Tex. 36, we quotes

“It is contended that right to the ofrloe is seoured by the Constitution and that it o’an only be taken away, elthcr temporarily or per- manently, by removal of the incumbent by the distrlot judge, for oauses set rorth in writing and found by a jury to be true us prosoribed by section 84.

“It is well established by tho authorities that under a Lonstitutlon like this there 18 no power in the Legislature to authorize a reno~6.l so provided ror otherwise then in the presorlbed mode, and if a temporary suspension 0r the of- ricer, during the psndenoy or valid proooedln@ to remove and as t;n incident of such procoedlngs were equivalent to a removal, the argument would be complete. Ke thus state the oharaoter Or the suspension as temporary and Incidental to the trial a legal and valid proaeedlng to remove beoause that is all that exists in this oase, as well as for the reason thet we do not doubt that there might be attempts at suspensions 8s well as at removals that would violate the COE- stitutlon.’

. - --” 74

m state OX rd. Fiah Vs. O'bWaXS, COtUlty Judge et al, 74 f3.N. (2) 146, aotlon was to remove a county judge iSa the fOUS OOUUty 0013~&3dOt~6 Ot DiPrmit COIi$Lty. ThO trial wae to a jury But the court lnatructrd a rrrdiot ror defendants. Ymnn the o$inlon of Judge Smith o? the San Antonio Court of Civil qppsalr we quote:

@Tn his firat, ~eOond, third, and fourth proposltlons relator oontenda that under the constitutional provision here lmoked a jury alone aa~ pas8 upon the lseue or whether an 0frioial is guilty or lnnooent of improper aota oharged against him in a ease of this oharao- ter, and that therefore the trial Judge erred in directing a veralot ior appellees, The prop- osition 1s correot, In a general eonse, in that no offlolal may be rkmored from orrice ror sots or inconptsncy mieoonduct unless ma until he has been found guilty or such &iota, by a jury of hla peers; a district Juilge has no power to remove an olflalal in the absenos of such jury flndix..R

x defendant ln a felony case dotis not have the un- ~unllfled right to waive a jury. Eie can do 80 in c;ses less than oopltal with the consent and upprovo]. of the distrlot J’ud~e. klere such consent aAd z?pro- uttorney ana district vu1 is given and as CI conooquenco thereor no convlotlon by a petit 5S68 does not apply. jury is hnd, we are constrained to hold that .rtlole