## In the Court of Appeals Second Appellate District of T exas

at Fort Worth

___________________________ No. 02

- 22

- 00247

- CV

___________________________

On Appeal from the 97th District Court Archer County, Texas Trial Court No. 2021

- 0149A

- CV
Before Bassel, Womack, and Walker, JJ. O pinion by J ustice Walker 

### D ONALD 

### W

AYNE 

### S TEVENS 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS 

### , Appellee2 OPINION In this quo wa rranto proceeding , Appellant Donald W a yne Stevens appe als
from the trial court ’s judgment ousting him from the office of constable in A r cher County, Texas

. In a single issue, Stevens argues that the trial cou rt ’ s judg ment was based on an err oneous conclus ion of law related to whether he provided evidence of a
permanent peac e officer license to the commissioners court as required by subs ection 86.0021(b) of the Texas Local Government Code

. S ee Tex . Loc. Gov ’ t Code Ann. § 86.0021(b). We will revers e and re nder in S tevens ’ s favor

.

I. CONSTABLE QUALIFICATIONS AND REMOVAL
Section 86.0021 of th e T e xas Lo cal Gover nment Code outlines the eligibility requirements for holding the office of constabl e. Id

. Among other possibl e qualif iers ,

a person i s eligible to serve as constable if he i s “ an active or inactive lice nse d peace
officer

. ” Id

. § 86.0021 (a) (1)

– (2). Further, “ [o]n or before the 270th day after the date a constable takes office, the con stable shall provide, to the commissioners court of the county in which the constable serves, evidence that th e constable has been issued a permanent peace officer license under Chapter 1701, Occupations Code. ” Id

. § 86.0021(b). A constable who fails to provi de such evidence forfe its his office and is

su bject to remov al in a quo warranto proceeding

. Id

.3 I I
. BACKGROUN D
A
. F ACT UAL B ACK G ROUND T he material facts in this case are undispute d

. Stevens was elected as constable
in A r cher Co unty, T e xas, and took office on January 1, 202 1

. He had p reviously

s erv ed as a constable in Archer C ounty from 200 5

– 2008

. When he took office in January 2021, Ste vens held a permanen t peace officer license that was originally issue d
to him in 2002 by the Texas Commission on Law Enforcem ent (TCOLE )

. However,
his license ha d been on inactive status since 2013 because he had not satisfied
TCOLE ’ s continuing education requirements. 1
On February 8, 2021, Stevens provided two TCOLE doc uments to th e A r cher County Judge : a comple ted Appointmen t Applic at ion F orm L

- 1 (L

- 1) and a copy of
h is t hen

- current P erso nal S tatu s R eport (PSR). 2 The L

- 1 was an application that

1 A TCOLE official testified that a permanen t p eac e office r l icense in c l udes both active and inactive licenses

. T he parties stipulat ed before trial that Stevens maintain ed an inactive permanent peace officer licen se from January 1, 2021 , until it beca m e active on November 15, 2021. T he State concedes on ap peal t hat Stevens h as, at all relevant tim es, held a permanent peace of ficer license.

2 At trial , Stevens testified that he provided both of these documen ts to the county judge at the same time on February 8, 2021

. The c ounty judg e te stified that he
o nly reme mbered recei v

i ng the L

- 1 but di d not di spute that Steve ns also gave him a copy of his PSR. Further, in the statement of facts of his appel l an t ’ s brief, St evens again states , with suppo rting record references , that h e pr ovided a co py of his PSR to the coun ty judge on F e bruary 8, 202 1

— a f act that the State does not contradict in its app ellee ’ s brief. F or these reasons, w e will accept this fact as true. S ee T ex. R. App. P. 38 .1 (g) (providin g th at appellate cour t s in civil cases “ wi ll acce pt as true t he fact s stated [in a n a ppellant ’ s brief] unless another party contradicts them ” ) ; see also State v. City of Double Horn , No. 03

- 19

- 00304

- CV, 2019 WL 5582237, at *3 (Tex . App.

—4

TCOLE required from Stevens upon his election to of fice

. 3 On it, Stev ens ha d

wr itten his TCOLE license number and oth er identifying inform a tion and had also

a cknowledged that he was a license holder with a more than 18 0

- day break in service. The county judge signed th e L

- 1 , certifying that he was the chi ef administ rative officer
of Archer County and that the count y “ ha[ d] on file and readily accessible to [TCOLE ] the appropriate do cuments to show that [Stevens] meets t he minimum standards for licensing and/or appointment. ” Th e PSR listed all of Stevens ’ s peace officer serv

ice records , i n c l u d i n g t h e d a t e that he original ly obtained his peace officer license, the date that he entered into inactive statu s, and th e dates during which he
had served as constable. It also showed all of the peace offi cer positions that Stevens
had held over the years, includ ing a stint as an of ficer with the A r cher County
Sheriff ’ s Department in 2002.
Stevens and the county judge also had multiple conversations regarding t he qualification requirements for the offi ce of cons table

. The county judge was aware
that Stevens had been licensed in t he past as a peace off icer and also that Stevens ’ s licen se was inactive when he took office in January 2021. A dditionally, Stevens spoke
with the A r cher Count y sher iff and cou nty attorney about the fact that his permanent Austin Oct. 30, 201 9, p et . denied) ( “ A quo warranto suit is a civil proceeding g overned by the rule s app licable to all civil action s . ” ).

3 According to Steve ns, T COLE informed him that he needed to have the county judge sign the L

- 1 for “ notificatio n ” purposes “ because it ha d [S tevens ’ s] licensing on it. ”5

license was inactive and his plan s to reactivate it. A nd t he county attorney had been
in contact with TCOLE and the T e xas A t to rney General ’ s office regar ding the m atter.
In Archer County, an item can typically be placed on the commissioners court agenda by presenting that item to the county judge, another member of the
commissioner s court, the county cle rk , or the coun ty treasurer
. 4 S tevens d id not present the L

- 1 o r PSR to any other county official , and he never attended a meeting
of th e commissioners court. He also neve r spe cifica l l y requested the count y judge

— or any other county official

— to p re sent the docum ents at a c om missioners court

me e t ing

. Between October 2020 and No vember 2021, Stevens took steps to reactivate
his license with TCOLE , which included compl et ing the requisit e continuing

e ducation cou rses and ta king a reactiva tion exam. After de l ays brought on by the
COVID

- 19 pandemic and Stevens ’ s failing the exam on his first attempt , h is license was eventually placed back into acti ve statu s on November 15, 2021. Stevens
i mmed iately contact ed t he county j udge and c ounty att o rney to inform them th at his
license had been reactivated.

4 For ex ample, after taking office Ste vens g ave t he county treasurer a copy of a certifi cate showing that he had recently com pleted a TCOLE newly

- elected constable ’ s course . T his certifica te was then given to the c ount y clerk, who included it in a packet w

ith oth er do cuments to be c onsider ed at the ne xt commissioners court meeting.6 B
. P ROCEDUR

AL B ACKGROUND
On De cember 13, 2021, the State filed a s uit in q uo warranto seeking to

remove Stevens from of fice for noncompl ian ce with Loc al Governme nt C ode
Subsection 86.002 1 (

b)

. T he State alleged that Stevens did not have a permanent license by Sept ember 29, 2021 5

— the 27 1st day after he took office

— and that he had failed to pr ovide evi dence of permanent peace officer licens ing to the commissioners

c our t by th at da te
. A f ter a bench trial, t he trial court entered a judgment ousting Ste vens from
office

. In its finding s of fact , t he trial c ourt found that Stevens “ did not maintain an

a ctive permanen t peac e office r li cen se before S eptember 29, 2021 ” an d “ did not provide evidence of an active permanent peace office r license to the Archer County Commissioners Court before September 29 , 2021. ” The trial court al so made the
followi ng conclusions of law:

• “ Lo cal Government Co de § 86.0 021 requir e s a consta b le to maintain an active permanent peace officer license within 270 days of being s worn into office

. ”

• “ Local Government Cod e § 86.002 1 places the responsibility on a constable to provide eviden ce of an activ e permanent peace officer licens e to the commiss ioners court within 270 days of being sw orn into office. ”

• “ Because [Steven s] failed to maintain an active permanent peace o fficer lic ense within 270 days of being sworn into offic e, [Stevens ] h as forfeited h is office. ”

5 The State has since abandoned this argument and, as noted above, concedes that Stevens has held a permanent licen se since 20 02

.7

• “ Bec aus e [Ste vens] fail e d to provid e evidence of an active permanent peace officer licens e to the Ar cher County Commissioners Court within 270 days of being
sw orn into o ffice, [Stevens ] forfeited his office. ”
III. D I SCUSSION
Ste vens contends on appeal th at the tr i al court rever sibly e rred by concluding
that s ubsection 86.0021(b) requires a constable to ma intain an active permanent pea ce officer li cense and that Stevens forfeited his office by failing to s how evidenc e of an
active permanent license t o the commissio ners court within the 270

- day window

. Stevens reque st s that we render judgment in his favor , arguing that, because the

m aterial facts are undisputed , the only question s left for t he resoluti on of the case require de novo rev

iew

. The State responds that t he trial court judgmen t should be upheld because Stevens failed to provide evidence of any licensing directly to the commissioners court as required under s ubsection 86.0 021(b)

. We agree wi th
Stevens.
A. T HE C ONCLUSIONS O F L AW W ERE E RRONEOUS A ND L ED T O I MPROPER J UDGMENT
1. Standard of Review and Relevant Law
We review a trial co urt ’ s conclusions of law de novo. BMC Software Belgium,
N.V. v. M archand , 83 S.W.3d 789 , 794 (Tex. 2002) ; Wise Elec. Coop., Inc. v. Am. Hat Co. , 476 S.W.3d 671, 679 (Tex. App.

— Fort Worth 2015, no pe t.)

. A conclusion of law
will be reversed if it is erron eous as a matter of law and led to the rendition of an improper ju dgment. Marchand , 83 S.W.3d at 794; Wise Elec. , 476 S.W.3d at 679; In re8

J.J.L.

- P. , 256 S .W.3d 363, 376 (Tex. App.

— San Ant onio 2008, no pet.) ; see Tex. R.
A pp . P. 44.1 (a) (

providing that no error in a civil case may be reversed on appeal
unless the error “ proba bly caus ed the rendi ti on of an improper judgment ” ). 2. Analysis
The tr ial court ’ s conclusion o f law tha t s ubsection 86.0021 (b ) “ requires a constable to maintain an active permanent p eace officer license within 270 days of being sworn into office ” is erroneo us as a matter of l aw. Subsection 86.0021 (b) does not require a constable to maintain an active licen se within the 270

- day window , only a permanent license

. The evidence established

— and the partie s agree

— that a permanent license includes both activ e and inactive l icenses . This distinction is importa nt under the facts of this case where it wa s undisputed that Stevens
maintain ed an ina ct

ive but permanent lic e nse at all rele vant times

. A ll of the trial court ’ s conclusions flow from its mi staken reci ta tion of the la w . The judgment

— proceeding under th is erroneous recitation

— conclude s that Steve ns forfeited his office because he did not “ provide evidence of an active permanen t peace officer licens e to the Ar cher County Commissioners Court within 270 da ys of being sw or n into o ffice

. . . . ” In short, the t rial court impose d upon Stevens a statutory duty that did not exist. T hus, we hold that the erroneous conclusions of law

are revers ible because they “ pro bably caused the rendition of an improp er judgment

. ”
S e e Tex. R. A pp . P. 44.1 (a)

.9 B. S TEVENS S UBSTA NTIALLY C OMPLIED W ITH § 86.0021 ; R ENDITION I S T HE P ROP ER R EMEDY Having he ld that the trial court reversibly erred , we must now determine the appropriate remedy

. Because the material facts are un disputed in th is case , we will
review de novo whether Stevens provided evidence of a permanent pea ce officer
licen se to the commission er s court within 270 days of taking office as required by

s ubsection 86.0021(b) , and then render judgment accordingly

. Se e Tex. Loc. Go v’t Code Ann. § 86.0021 (b)

.

1. Standard of Review and Relevant Law Appellate courts review legal de ter minations de novo a nd “[w]hat migh t otherwise be a question of fact becomes one of law when the fact is not in dispute or is conclusively e s tablished. ” Reliance Nat. Indem. Co. v. Advance ’ d Temporaries, Inc

. , 227 S.W.3d 46, 50 (Tex. 2007) ; Bianchi v. S tate , 444 S.W.3d 231 , 246 (Tex. App.

— C orpus Christi

– Edinburg 2 014, no pet.) ; see City of San Antonio v. Tenorio , 54 3 S.W.3d 772, 776 (Tex. 201 8 ) ( “ Whether a governmental unit has actual notice is a fact question when the evidence is disputed, but it is a q uestion of law when th e evidence
is u n disputed. ”); c

f

. G.T. Le ach Builders, LLC v. Sapphire V.P., LP , 458 S.W.3d 502, 511 (Tex. 2015) (holding that , when th e relevant facts are und isputed, whether a party waived its right to arbitrate is a question of law for reviewing court to decide); Meyer v. Cathey , 167 S.W.3d 32 7, 330 (Tex. 2005) ( “ Where the underlying facts are undisputed,
determination of the existence , and breach, of fiduciary duties are questions of law,10

exclusively within the province of the court

. ”) (internal quotat io ns omitted); Kl

e in v. Century Lloyds , 15 4 Tex. 160, 163, 275 S.W.2d 95, 97 (1955) ( “ While the question of
whether notice was given ‘as soon as practicable’ is ordinarily a question of fact, if, as in this case, the facts are undispute d, the question then b ecomes a questi o n of law for
determinati on by the court

. ”). Ordinari ly, when a trial court judgment is reversed
after a bench t rial s olely on a question of law, appellate courts are to render the judgment that the trial court should have rendered. Lete ff v. Roberts , 55 5 S.W.3d 133, 139 (Tex. A pp.

— Houston [1st Dist.] 2018, no pet.) ; see Tex. R. App. P. 43.3 ( “ When
reversin g a trial cour t ’ s judgment, the court must render the judgment that the trial
court should have rendered ” un less r emand is neces sary f or further procee d ings o r required in the interests of justice ) ; Bianchi , 444 S.W. 3d at 2 50 (reversing and re ndering
in a q uo warranto p roceeding where the undisputed facts esta blished that a county attorney was not guilty of unlawfully holding his office)

. A person may be said to have substantial ly co mpl ied with certain statutory requirement s if they fulfill the ultimate pur p ose of th e st a tute
. See Sorrell v. Estate of
Carlton , 593 S.W.3d 167, 173 (Tex. 2017) (holding that “substantial compliance is
insuf fi cient to satisfy a statutory deadline, [ but] it may be sufficient to comply with other statutory requirements ” ) ; Ro ccafo r te v. Jeffers on Cnty. , 341 S.W.3d 919, 926 (Tex. 2011) (holding that subst antial compl iance with notice requireme nt was sufficient
be ca use “ [t]he statute was not intended to c reate a pr ocedural trap ” when it is undisputed that the appropriate officials ha v e notice ) ; se e also Washington v. Related11

A rbor Court, LLC

, 357 S.W.3d 676, 681 (Tex. App.

— Houston [14th Dist] 20 11, no pet.) ( collec ti ng cases to show that “ a wide range of T exas cases hold[] that statutory notice requirements may be sa tisfied by a method of service other than the prescribed statutory method when ” the intended recipient acknow l edge s receipt and has actual knowledge o f th e necessary information ) ; S. Sur. Co. v. McGuire , 275 S.W. 845, 847 (Tex. App.

— El Paso 1925, writ ref’d) (holding that oral presentment of a claim to the
commissioners court rather than written presentment as required by then

- operativ e notice statute was s u fficient beca use the purpose of the sta tute was not to “ imp ose any technical nicety in the manner of the claims presented ” but rather to advise the court of claims against the county); cf. Warner Bros. Entertainment , Inc. v. Jones

, 6 11 S .W.3d 1, 13 (Tex

. 2020) (holding that Defamation Mit igatio n Act requirement that plaintiff

s request in writing a correction to the of f ending public ation before filing
a defamation suit was fulfilled , among other reasons, because the plaintif f had compl ied with the Act ’ s “ ex pressly state d purpose ” )

. 2
. Analysis
In Roccaforte , the Texas Supreme Court was tasked with d eci di ng whether a
p e rson had met the notice requ irements of Te xas Local Government Code
Section 89.0041 , which requires plaintiffs suing a county to provide w ri tten notice of their claim to the county judge and county attorney by certified or registered mail or risk having the ir suit dismis sed

. Roccaforte , 341 S.W.3d at 926. T he re, the plaintiff did
not mail a written n otice but instead se rved the county judg e and county attorney with12

personal servic e of process
. Id . at 920. The court held that this notice substantially

com pl ied with Se c tion 89.0041 , a non

- jurisdictional statute, because it fulfilled the purpose of the statute

— to ensure t hat the proper count y officials were made aware of
the pending suit so as to properly answer and defend against it. Id . at 926

– 27.
We bel ieve that Rocc

a forte ’s reasoning applies well to this case whe re the statute
at issue is like wise not jurisdictional

— in fact it does not re late at all to pre

- or post

suit notice

— a nd places only a n ill

- defined and broad d uty upon constables to

“ provide

. . . evidence ” t o the commissioners court. See Tex. Loc. Gov’t Code Ann. § 86.0021 (b)

. Subsection 86.002 1 (a) states t hat a person is eli g ib le to hold the office
of c onstable if he is an active or inactive licensed peace officer. Id

. § 86.0021 ( a

)

. Subsect ion 86.0021(b) provid es that a constable forfe its his office unless, “ [o]n or before the 270th day after the date a c onstable takes offic e, the co nstable [] provide [s] , to the com missioners court of the co unty in which the constable serves, evidence that

t h e constable h as been issued a permanent peace officer license under Chapter 1701, Occupations Code. ” Id

. § 86.0021 (

b)

. Thus , t h e appa re nt purpose of s ubsection 86.0021(b) is t o ensure that the
commissioners cour t has timely notice tha t a newly

- elected cons table hold s either an active or inactive permanent peace officer license

. See i d

. St evens contends that he
comp lied with this requi re ment when he provided copies of his L

- 1 and PSR to the county judge on February 8, 2021

. The State contends that sim ply providing the
document s to th e county judge without explanation or a spe cific request that the y be13

presented to t h e entire commission er s court was not enough to com ply w ith

s u bsection 86.0021(

b). We disagree with the State and hold that St evens substa ntially complied with s ubsection 86.00 21(b ) ’ s notice requirement

. See Ro ccaforte , 341 S.W.3d

at 926

. Stevens gave c opies of his L

- 1 and P SR t o the county judge on February 8,
20 21

— well within the 270

- day window

. Th is documenta tion showed that Steven s

was a licensed peace officer who , at the time of taking office , had been on inactive

st atus since 2013. The PSR showed that he had worked as a peace officer in mul tiple capacities for more than a decade , including as a n officer for the Archer County
She riff ’ s department in 2002

. And on the L

- 1, the county judge a cknowledged with his signature that the county had on file “ the appropriate doc um ents to show that [Stevens] [met] the mi nimum standards for licensing a nd/or appointme nt. ” Beyond providing these doc uments, S tevens also had multiple conversations with the county judge and county attorney about his licensing status and the progre ss he w as making
toward reactiv ati ng his license. The county j udge testified that a person can have a n i tem added to the Archer Cou nty C ommissioners C o urt ’s agenda by first presenting
that i tem to the county judge. Thus, Stevens provided to the Archer Count y Judge ( the presiding officer of
th e commissioners court, see Tex. Const. art. V, § 18 ) and the A r cher County Attorney ( the coun ty ’ s legal advisor , see Tex. Gov ’ t Code Ann. § 41.007 ) evidence that he held a
perman ent peace off

icer lice nse . T h e county j ud ge was a n acknowledged conduit14

through which evidence of t his licensing could have bee n added to the commissioners court agenda , and Stevens ha d no gen eral right to speak at a commissioners court meeting concerning his licensin g unless the issu e was first pl aced onto the agenda

. S ee Tex. Gov ’ t Code Ann. § § 551.001 (3) (B ), 551.002 , 551.00 7 ( requiring o nly that public testimony be allowed regarding i tems placed on the meeting agenda) ; Charlest own Homeowners Ass ’

n, Inc. v. LaCoke , 507 S.W.2 d 876, 8 83 (Tex. App

. Dallas

— 1974, writ
ref ’ d ) ; Op. Tex. Att ’ y G en. No. JC

- 0 169 (2000)

. T hat Stevens had p reviously served as
both a constable and sherif f ’s deputy in Archer County is further evidence that the
commissioners court was f airly appris ed that h e held a permanent p ea ce officer
license. For these reasons, we conclude that the purpose of s ubsection 8 6.0021( b) ’ s notice requirements w as fulfilled in this case

. T o hold otherwise wou ld create a procedural t rap that could lead to a duly

elec ted co nst able for feiting his of fice even af

ter providing tim ely, suffici ent licensing
evidence to a county officia l who is recognized as one channel through which items

are regularly placed on the commissioner s court agenda

. See Roccaforte , 341 S.W

. at
92 6

– 27. Al l it wou ld take is f or that evidence to then be kept

— either ina dvertently or purposefully

— from ever appea r ing on the court ’ s agenda for 270 days. This is precisely what happened to Stevens here. The State argues that mere ly pr oviding evidence t o the cou nty judg e did not

su ff ice to fulfill Stevens ’ s obligations unde r s ubsection 8 6.0021(b) because Texas

cour ts have held that the commissioners court can act only as a single body and15

cannot be bound by the unauthorized action of one member. This a rgument is
unavail in g because th e situation a t hand does no t involve any unau thorized ac tion by
the c ounty judge

. Rather, the issue here may be more aptl y construed as one of
inaction , specifically the county judge ’ s failure to place the evid ence provided by
Steven s before t he commiss io ners court. T he county jud ge took no action

— mu c h less any unauthorized action

— to bind t he commissioners court to anything

. And

u ltimately , t he commissioners cour t had no say in approving Stevens ’ s candidacy

— it

was merely entitled to evi denc e of his lic en sing , which it receive d for purposes of subsection 86.0021(b).
IV. CONCLUSION Accordingly, havi ng held tha t the trial court reversibly erred and that the undisputed evidence show s th at Stevens substantially complied with the require me nts of s ubsection 86 .0021( b) , we reverse t he trial court ’ s judgment and render a take

nothing judgment ag ainst the State

. S ee Tex. R. App. P. 43.3

.
/s/ Brian Walker
B ria n Walker J usti ce Delivered: December 15, 2022