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 rebe Oould continue to 

should be employed 

srt&b 5908, Revised Cl011 Statutes, reada an 

~+~L~'convlctlons by a petit jury of any 

chti3tjwfrieers for any felony, or ror any mls- aedqor 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 removing such 0frioar.” 

The aborn statute speaks only Of OonYlOtlo&3 by 

petit jurlos, perhaps bsoause when 5.t beoam law them 
Hoa* Joe Bailey Humphrey, pago 3. 

oould be no oonviotlon of a rmlony rxoept upon a 

~~rtlolr loa, C. C. p., 

&r 

glring to the defendant the r L 

trid, 

ht to 

walr* a jury in a felony oas8 lees than oapltal, upon a plea 

of guilty and with the oowent or the Distriot Attorney and 

of the Court wan not snaoted until 1931., we are wro inolined 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 oifloers, may be removed by the Judges or the Dirtrlot Courts ror inoanpetuioy, 0rfi0id daoonduot, habitual cImnkenno8s, or other oausrs 

defined by law, upon the oauae thereror beset 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 permanently, 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 ofricer, 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 or 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 COEstitutlon.’ 
. 

- --” 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 

the 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 oharaoter, and that therefore the trial Judge erred 

in directing a veralot ior appellees, The proposition 1s correot, In a general eonse, in that 

no offlolal may be rkmored from orrice ror sots 

or inconptsncy or 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 

uttorney ana district J’ud~e. klere such consent aAd z?provu1 is given and as CI conooquenco thereor no convlotlon by 

a petit jury is hnd, we are constrained to hold that .rtlole 

5S68 does not apply. our opinion follows that the trustee 

in i;uestlon WCS not removed by this conviction and continues 

to hold his oftloo. our o~lnion x0. o-1521 is Umitea aoCOraiIUjly~ 

pours rsry truly