NO. 07-02-0471-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B FEBRUARY 26, 2004

______________________________ DAVID CRAWFORD, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 108TH DISTRICT COURT OF POTTE R COUNTY; NO. 89,33 1-E; HONO RABLE A BE LOPEZ , JUDGE

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
OPINION
In this appea l David C rawford challenges a summary judgment for the State of Texas in a quo warra ntoproceeding removing him from the office of Constable for Precinct 3 of Potter County, and imposing a fine of $2012.05 and costs. He presents five i ssues for
our review which he c on tends show error in the trial court’s judgment. Finding merit i n a-2-

portion of his fourth issue, we sever that issue, remand it to the trial co urt and a ff irm the remainde r of the ju dgment.
The relevant factual and procedural history of thislitigation is essentially undisputed. In November 20 00 appell ant was e lected to the office of cons table of Potter Co unty Precinct3. He assumed that office on January 1, 2001. No defects in his assumption of the office have been alleged, however, at the time h e tookoffice, appellant did not have a peace officer l icense i ssued by the Texas Comm iss ion on Law Enforcement Officer Standards and Edu cation. Section 86.0021( b) of th e Local G overnment Code required appellant

to provi de the co mmission ers court with evidence he had received apermanent peace officer

licensewithin 270 daysfrom the d ate he to ok office

. Tex. Loc. Govt. Code Ann. § 86.002 1(b) (Vern on Supp. 2004). The statute goes on to provide that a constable who fails to do so “forfeitsthe office and is subject to removal in a quo warranto proceeding under Chapte r 66 [of th e] Civil Practiceand Reme dies Cod e.” Id. The 270 th day after appellant

took offi ce was S eptember 28, 2001 . He doe s not d isput e that day came and went without his having acquired a peace officer license.
The Potter County Attorney, who represents the State in this proceeding , sen t a letter to appellant dated Octob er 10 , 2001, which recited the provisions of section 86.0021(b) and the fact that no evidence of a peace officer license had been p resented

. Italso informed appellant “the commissioners request that you submit your resignation to be effective immediately. This resignation will resul tin a vacancy in the office of constable. The co mmissioner s are willing to consider appointing you to fill the vacancy[.]” Appellant did not submi t his resi gnation and the county con tinued to pay him t he salary set for the1 At oral argument the parties represented this date was December 27 , 2001. -3- office. On November 13, 2001, the county filed a petition for l eave to file information in quo warranto alleging the facts set out above, that appellant unlawfully held the office and that he had forfeited the office. It sought an order ousting appellant from the officeof constable and imposing a fine for “usurping and/or unlawfully holding and executing the office.” It also sought an injuncti on preven ting app ellant fr om acting as a con stable.
On a date not shown in t he record the coun ty discon tinued s alary pa yments to appella nt. 1 Appellant provided a letter to the county judge on December 27, 2001, in w hich he resigned from the office of constable effective immediately but purported to reserve “any claims for actual or

punitive damages” from his term of office. On December 31, 2001, he filed a letter in the trial court in answer to the county’s petition, together with a copy of his resignation letter. Th at answer requested dismissal of the cause as moot based on his resignation. The record does not disclose an ex press ruling on the motion but does reveal the trial court issued a discovery control order on May 21, 2002, setting July 8, 2002, as the deadline for compl etion of discover y and pro viding a ny motion s for summa ry judgme n t were to b e filed b y July 19 , 2002.
The State filed a motion fo r summary judgment July 18, 2002. The grounds asserted in the motion were that there were no genuine questions of fact on whether appellant

had forfeited his offi ce by fai ling topresent evidence of a permanent peace officer license within the required time, and that the State was “entitled , as a mat ter of law, to judgment finding [appellant] guilty of engaging i n an act that, by law, caused a forfeiture of-4-

his office and ousting [him] from the office of constable for Precinct 3 of Potter County, Texas.” It also requested “that [appellant] be fined pursuant to sectio n 66.003(3) of the Civil Practiceand Reme dies Code b ased upon his unlawful holding of the office of constabl e after heforfeited that offi ce.”
The motion challenged appellant’s claim of mootness, relying on the “holdover provisio n,” of the Texas Constitution, Article XVI, Sect ion 17, which pr ovides “A ll office rs within this State shall continue to perform the duties of their offices u ntil thei r success ors s hall be d uly qualified.” In its motion the State also al leged appellant “wrongfully appropriated $2,012.05" from Potter County, an d reques ted imposition of a fine in that amount. The moti on was su pported b y affidav its from th e county judge, two employees of the county attorney’s office, both a ddressing service of discovery reque sts on ap pellant, and an employee of the county auditor’s office, stating appellant had been paid $2012.05 after September 2001.
The following day, appellant filed a formal answer to the suit, reasserting his claim of mootness. Appellant al so filed his own motion for summary judgment seeking a takenothing judgment against the State on the basis that he had resigned from the office of const able and the quo warra ntoproceeding was moot. In a later brief in the trial court , appella nt charac

terized h is mootne ss claim as a ple a to the court’s jur isdictio n.
October 1, 2002, the trial court ren dered final summary judgment denying appellant’s plea to the jurisdiction and his request to join members of the commi ssioners court as defendants. It denied appellant’s motion for summar y judgment and granted the-5-

State’s motion, removing him from office and decl aring tha t office v acant. It also imposed
a fine of $20 12.05 for “usurping and for unlawfully holding and executing the office of constabl e” togeth er with court costs

. After filing a motio n for new trial complaining of the denial of a jury trial, ab use of discretion in imposing a fine, and challengi ng the trial court’s jurisdiction, appellant timely perfected this appeal. His five issues contend the tria l court erred i n: (1) finding it had jurisdiction; (2) removing an elected official from office without a trial by jury; (3) imposing
a fine without conducting a trial by jury; (4) concludi ng appel lant wasnot enti tled to compensation and impos ing a fine in the amount of the payments; and (5) rendering a declaratoryjudgment that appellant’s office was vacant, relief he c ontends was not authorized by statute.
Jurisdiction
Itis funda mental th at a court must have jurisdiction over the parties and the subject matter before it or any judgment it renders is void. Mapco, Inc. v. Forrest , 795 S.W.2d 700, 703 (Tex. 1990). Subject matter jurisdiction requires that there be a li v e controv ersy between the parti es. State Bar of Texas v. Gomez , 891 S.W. 2d 243, 2 45 (Tex. 1994). A mootcase lac ks justici ability. Patterson v. Plann ed Paren thood of Housto n , 971 S .W.2d 439, 442 (Tex . 1998). A case becomes moot if at any stage there ceases to be an actual controversy between the parties. National Collegiate Athletic Ass'n v. Jon es , 1 S.W.3d 83, 86 (Tex. 1999). The test for mootness is commonly stated as whether the court’s action-6-

on the merits would affect therights o f the part ies. See VE Corp. v. Ernst & Young , 860 S.W.2d 83 , 84 (Tex . 1993). Despitethe language of section 86.0021(b) of the Local Government Cod e th at a constable who fails to provide evidence of receipt of a pe rmanent peace officer license by the required date “forfeits the office,” neither party c onten ds that appellant automatically vacated his office w hen he fa iled tobecome licensed by September 28, 2001. The parties cite a 2002 Texas Attorney General’s opinion stating that a constable wh o fails to provide evidence of

licensure automatically forfeits the office but is not automatically removed from office, and may continue to perform the duti es of the office un til remov ed by a d istrict co urt in a quo warra ntoproceedi ng. Op. T ex. Atty Gen. No. J C-0514 (2 002). Chapter 66 of the Civil Practi ce and R emedies Code gov erns the conduct of quo warranto proceedings. The provisions relevant here incl ude: § 66.001. Grounds. An actio n in the nature of quo warr

anto is a vailabl e if: (1) a person usurps, intrudes into, or unlawfully holds or executes a franchise or an office, in clud ing an office in a corporation created by the au thority of this state; (2) a public officer does an act or allows an act thatbylaw cau ses a forf eiture of his office; § 66.003. Judgment If the person against whom the information is filed is found guilty as charged, the court: (1) shall enter judgment removing the person from the office or franchise;2 See Act of July 9 1879, 16 th Leg. S.S., Ch 48, § 1, 1879 Tex. Gen. Law s 75.
3 Under more recent statutes, other procedures also may serve thatpurpose. See, e.g. , Tex. Occ. Cod e An n. § 1701.302 (Vernon Pamph. 2004) (removal of elected law enforceme nt office rs for fai lure to o btain pe ace officer licen se). -7- (2) shall e nter judgm ent for th e costs o f prosecu tion in f avor of th e relator ; and (3) may fine the person for usurping, intruding into, or unlawfully holdi ng and executi ng the of

fice or fr anchise. Tex. Ci v. Prac. &

Rem. Cod e Ann. § 66.001 -. 003 (Vern on 1997)

. These pr ovis ions have their origins in statutes enacted at lea st as early as 1879. 2 See Scolaro v. State ex rel. Jones , 1 S.W.3d 749, 758(Tex.Ap p.–Amaril lo 1999, no pet.). Quo warranto

actions are described as “those through which the State acts to protect itself and th e goo d of the p ublic ge nerally. ” Fuller Springs v. State ex rel. City of Lufkin , 513 S.W.2d 17, 19 (T ex. 1974 ); see Hunt v. City of Longview , 932 F.Supp. 828, 834 (E.D . Tex. 1995). With res pect to su ch action s involv ing officeholders , the purp ose of a quo warranto action is to determine disputed questions concerning a person ’s right to hold an office and exercise its funct ions. State ex rel. Angelini v. Hardber

ger , 932 S.W.2d 489, 490 (Tex. 1996); State ex

rel. Jennett v. Owens , 63 Tex. 261, 270 (1885). In the opinion cited by the parties, the Attor ney Gener al has re ferre d to q uo warran to as generally the exclusive procedure

to declare that an elected official is no longer qualified to occupy the office. Op. Tex. Atty . Gen. No. JC-0514 (2002). 3
On appeal, appellant again contends the S tate’s quo warra ntoproceeding against him became moot on his Decembe r 27, 2001 resigna tion from office an d the tria l court-8-

thereafter

was without jurisdiction to hear the case. The State also reurges the position it tookin the trial court, arguing that the court

maintained jurisdiction over the quo warr anto proceeding because appell ant continued in office, despite his res ignation, under Article XVI , Section 17.
Avaca ncy in the office of constable would be fil led by appointment made b y th e commissio ners court. Tex. Loc. Govt. Code Ann. § 87. 041( a)(11) (Vernon 1999). The Potter County commissio ners cour t did not appoint a successor

to the office following appellant’s December 2001 resignation.
As a preliminary matter, we agree wi th the conclusion reached by the Attorney General that a constable’s failure to obtain or maintain a permanent

peace officer’s license does not, und er Chapte r 86 of th e Local Go vernment Code, automatically remove the constable from office but makes him subject to removal. Tex. Loc . Govt. Co de Ann. § 86.002 1 (b) (Vernon Supp. 2004); Op. Tex. Atty Gen. No. JC-0514 (2002). Un der the procedures esta blished by the legislature, something more than appel lant’s failure to obtain the requir ed license was necessary to cause a vacancy in the office. By the language of the statute, that “something more” was appellant’s removal by means of quo warr

anto.
In support of its argumentthat, under Article XVI, Section 17, appellant’s resig nation
was not effective to vacate his office and therefore did not render the quo warra nto proceeding moot, the State initially cites Lowe v. State , 83 Tex. Crim. 134, 201 S.W. 986 (1918), which considered the effect of a distric t jud ge’s acceptance of appointment as a milita ry officer in 1917. There the court found another provision of the constitution4 Article XVI, Section 17 is no t absolu te. It does not obligate an officeholder who i s removed from office to continue to perform the duties of office, even though a successor is not appo inted. See Manning v. Harl an , 122 S.W.2d 704, 707 (Tex.Civ.App.–El Paso 1939, wri t dism’d)

. -9- controlled its decision but referred also to Article XVI, Section 17, citing McGhee v. Dickey , 23 S.W. 404 (Tex.Civ.App. 1893, no writ), for the proposition that u nde r the holdover provision, a public officer “could not arbitrarily divest himself of the obligation and auth ority to perform the duties of his office until his succe ssor qualif ied, and that although he resign ed, a nd his re signatio n be acce pted, [Art icle XV I, Sectio n 17] wou ld opera te to continue him in office until his successor qua lified.” Lowe , 201 S.W. 986. In McGhee , a county judge tendered his resignat ion, but i t was not accepted and was subsequently withdrawn. Considering the holdover provision of the constitution, the court conclud ed “a publicoffice does not b ecome vacant by an unaccepted resignation,” noting “[t]he public necessit y for continuity of official tenure is not left to the caprice of the office-holder. The contract for public service imposes a mutual obligation upon the officer and the public, which cannot b e arbitra rily dis pensed w ith by ei ther party .” 23 S.W. at 405; see also Plains CommonConsolidated School Dist. v. Hayhurst, 122 S.W.2d 322 (Tex.Civ.App.–Amarillo 1938, no writ). 4
This r e asoning has been followed in other ca ses. Examples include Keen v. Featherston , 29 Tex.Civ.App. 563, 69 S.W. 983 (1902, writ ref’d), a trespass to try title suit that presented the issue whether a county surveyor’s resignation was effective, making him eligible to purcha se land from the co unty. The comm issione rs court had accepted his5 See Tex. El ec. CodeAnn. § 2 01.023 (Vernon 20 03). -10- resign ati on but appointed no successor. The court held the constitution continued the surveyor in officein spiteof his re signatio n. Id. at 984.
The Texas Supreme Court cited Article XV I, Secti on 17 in holding an attempted resignation did not terminate a mayor’s term of office in Jones v. City of Jefferson , 66 Tex. 576, 1 S.W. 90 3 (1886). The evi dence in dicated that the m ayor there sought to resign for the purpose of preventing service of proce ss on the cit y for collection of a debt, not because of any di squalifi cation to hold theoffice. Id. at 904.
The same reasoning appear s in a n Attorney General’s opinion cited by the State, Op. Tex. Att

y. Gen. No . DM-493 ( 1998), o pining that certain water district directors who become disqualified for office under Water Code section 49 .072 and wish to cease acting
as director

before their su ccessors qualify nonethel ess hold over in office un der Artic le XVI, Section 17.
Other authority suggests that an officeholder’s resignation may be effect ive to va cate the office, a t least fo r some pur p oses. The most recen t case in which o ur supreme court has considered a resignation by an otherwise q ualified publ ic offici al is Angelini , 932 S.W.2d 489. In that case, a justice of a court of appeals se nt a letter in June 1996 to the governor advising of his intent to resign effective January 1 , 1997, when he exp ected to
assume the office of chie f justice of the sam e court. Relying on provisions of the Election Code, th e governo r’s offic e treated the resi gnation as effecti ve eight days afte r receipt , 5 creating a vacancy, and the gov ernor appointed a repl acement. Id. at 490. The State-11-

broughta quo warra ntoproceedi ng to oust the ju stice from office. The supre me court found the governor’s power of appointment was not invoked by the justice’s letter, and found no basi s for his removal. Id. at 492. The court wrote “[i]f his service is ende d b y volunt aryresign ation, hecontrols the righ t to deci de when he leave s.” Id. at 492. It addressed Article XVI, Section 17 by noting “the Constitution permits his se rvice to be extended, see Tex. Co nst. art. X VI, § 17, bu t not trun cated.” Id. This statement provides support for the proposition that the resignation of a qualifie d public official can be effective to terminate his service.
The most factu ally sim ilar quo warra ntocase we have reviewed is Phagan v . State , 510 S.W.2d 655 (Tex.Civ.App.–Fort Worth 1974, writ ref’d n.r.e.). In that case, Phagan,
a district attorney, was disbarred in May 1973, rendering him disqualified to hold that office. Id. at 657. He appealed the disbarment action . Dur ing the pendency of that appeal, in September

1973, the State brought a quo warra ntoproceeding to oust him from office. The trial court rendered summary judgment for the St ate in the quo warra ntoaction in November

1973 an d Phagan appeale d that jud gment als o. During the pend ency of t he appeal, Phagan submitted hi s resignation in March 1974. Id. at 658. Among the arguments advanced on appeal by Phagan was the assertion that his resi gnation r endered the case moot. With regard to the effect of the resignation the court wrote: “This resignation did render moot some of the que s tions involved in the quo warranto proceedings, but not all of them . The question of whether Phagan is or is no t entitled to the em olumentsof the office during the period between the date of the rendi tion of the decree appealed from and the date of his resignation from the office would hinge on6 Cases of this t y pe in clude Scolaro v. State ex rel. Jones , 1 S.W.3d 749 (T ex.App.–Amarillo 1999, no pet.) (county court at law judge continued to cl a im offic e againstassertio ns of dis qualifi cati on); Wel ch v. State ex rel. Long , 880 S.W.2d 79 (Tex.App.–Tyler

1994, writ denied) (constable claiming office removed for prior felony convicti on); Diaz v. S tate , 68 S.W.3d 680 (Tex .App.–El Paso 20 00, pet. d enied); Ramirez v. State , 973 S.W.2d 388 (Tex.App.--El Paso 1998, nopet.) (rem oval of c ity offic ials), and Robinson v. State , 28 S.W. 566 (Tex.Civ.App . 1 894, no w rit) ( quo warra ntoproper to resolve c laim to office of s heriff wh o failed to give bond). -12- the outcome of this ap peal.” Id. a t 658. Wemay infe r from this comment th at the cou rt viewed the resignation as effective. The case, though, does not i nvolve the effect of Article XVI, Section 17. See also Leonard v. Speer , 48 S.W.2d 474 (Tex .Civ.App .- -Galveston 1932), writ dism’d , 56 S.W.2d 640 (1933) (resignation of sheriff after felony conviction created vacancy in office; Article XVI, Section 17 not discussed); Op. Tex. Atty. Gen. No. M-659 (1970) (r

esignati on of cou nty attorn ey effecti ve, but he continu ed to hold over under Article XVI, Sect ion 17).
The facts recited in Attorney General’s op inion JC- 0514 are reflective of another class of quo warranto

cases similar to but distinct from the facts present before us, those involving officers who are disqualified but continue to claim their office. 6 Op. Tex. Atty. Gen. No. J C-0514 (2 002). Appellant

generally acknowledges applicabili ty of the holdover provisions of

Article XVI, Section 17 o f

the Texas Constitution, but nonetheless contends that no live or justiciable controversy triable by quo warra ntocan exist following his resignation because the sole fun ction of t he quo war ranto action is to test his claim to the office, a clai m he abandoned by resigning. Appellant cites Griffith v. State ex rel. A insworth , 226 S.W. 423 (Tex.Civ.App.–El Paso 19 20, no wr it), for the proposition that a quo warra ntoaction is moot-13-

and must be dismissed when the official “no longer holds office or claims a continued right to hold the office.” We view Griffith more narrowly, finding that it held a quo warra nto proceeding must be di sm issed on expirat ion of a term of off ice. Id. It contained no discussion of the effect of resignation by an officer whose term had not expired, nor does it discu ss the eff

ect of Art icle XV I, Sectio n 17. Griffith is not dispositive.
There are dist inctions

in the fa cts of t his case and those involved in each of the
cases an d opin ions dis cussed. The offic ials involved in the cite d cases r esigned for a variety of reason s, some pe rsonal, s ome related to the ir office s. Too, a s noted, most of those cases involved officeholders who continued to be qualified to hold their officesat the time of their resignation, wh ile appellant’s resignation occurred after he became disqualified for, and statutorily forfeited, the office of cons table. It is difficult to draw from the authorities
we have reviewed a clear-cut rule to be applied here. Significantly, however, none of the authorities we have surveyed in which it is suggested that an of ficeholder ’s resignation would be effective despite Article XVI, Section 17 in volve situations in which no successor is likely to be appointed. Appellant blames thePotter County commissioners court for that circumstance here, arguing that its failure to appoint a successor co nstable brings the holdover provision of Article XVI, Section 17 into p lay. He provides, though, no persuasive argumentexplai ning how the commi ssioners ’ decisi on not toappoint a consta ble affec

ts the application of the constitutional provision, or how the decision operates to deprive the districtcourt of jurisd ictio n. We cannot read into the constitution an exception to Article XVI, Section 17 for instances in which the g overnmental body h aving responsibility for de termining whether and when to fill a vacancy in office determines not to do so.-14-

Moreover, to hold that

Article XVI, Section 17 has no application here would be to sanction the very circumstance that provision of our constitution was designed to prohibit, a public officeholder’s unilateral decision to vacate his office. We agree wit h the State that appellant’s Decembe r 27, 200 1, resign ation wa s not effec tive to vacate his office. The parties maintained a legall y cog nizableinterest in the completio n of the p rocedure establis hed by statute for terminati on of app ellant’ s public service. Further, th e State’s pleadings in the quo warra ntoaction a sked the trial cou rt to impose a fine on appellant pursuant to section 66.003(3) of theCivil Practice and Remedies Code. In the la ter procee dings, appellant resisted the imposition of that fine, and still resists its impo sition o n appeal . The pro ceeding not havi ng been re nder ed moot by appellant’s resigna ti on, the di spute over the levy of a fine also maintained the live controver

sy. We ov errule ap pellant’ s first is sue. Imposition of Fine
Before addressi ng appel lant’ s sec ond issue, we consider his fourth issue, which
concerns th e trial co urt’s imposition of a fine pursuant to section 66.003(3) of the Civil Practice and Remedies Code. Consideration of that issue necessit at es reviewing the specificstatutory grounds authorizing quo warra ntoproceedi ngs in th e fa ctu al and procedural history of this case.
As noted, section 66 .001 of the Civil Practice and Remedies Code contains two grounds authorizing quo warra ntoproceedings relevant here. The first is applicable when “a person usurps, intrudes into, or unlawfully holds o r executes a franchi se or an office[.]”-15-

The second is available when “a pub lic officer does an act or allows an act that by law
causes a forfeit ure of hi s office.” Tex. Ci v. Prac. & Rem. Code Ann. § 66.001 (Vernon 1997). Section 66.003 authorizes the imposition of a fine, but only for usurping, intruding into, or unlawfully holding and executing the office, not for doing or allowing an act causing a forfeitu re of the office. T ex. Civ. Prac. & Rem. Code Ann. § 66 .003(3) (Vernon 19 97).
The State’s petition and info rmation a lleged a ppellan t “forf eit ed the office of Constable for Precinct 3 of Potter County, Texas, but refuses to vacate that office. Accordinglythe writ of quo warra ntoshould be issued against [appellant.]” It characterized section 66.001(1) of the Civil Practice and Remedies Co de as providi ng that quo warra nto is available “if a person unlawfully ho lds or executes a n off ice created by authority of the State of Texas,” and that appellant “should be fined for usurping and/or unlawfully hol ding and executing the office of Constable[.]” The Sta te thus proceeded against appellant on both a “usurping” claim under section 66.001(1), and a “forfeiture” claim un der section 66.001(2 ).
Under the well-settled rules applicable to summary jud gment, the summar y j udgment m ovant must demonstrate entitlement to judgment as a matter of law. Tex. R. Civ. P. 166a. A motion for summary judgment under Rule of Civil Procedure 166a(c) must state the spec ific grou nds on w hich themovant co ntends i t is enti tled to ju dg ment. McConnell

v. Southside Ind. Sch. Dist ., 858 S.W.2d 337, 339- 41 (Tex. 1993). Here, the State’s motion fo r summary judgmen t was based on appellant’s failure to ob tain a permanentpeace officer’s license and section 86.0021(b) of the Local Government Code. The State did not contend or point out evidencethat appellant otherwise usurped the office.7 Fo r example, the State’s motion alleged: “defendant’s a cts and omission s conclusively

demonstrate that [he] has, by law, forfeited but continued t o unl awfully hold the office of cons table[.]” -16- The references in the motion to appellant’s holding the office unlawfully were based on the statutory forfeiture. 7
The evidence of appellant’s forfeiture of office by failure to obtain a peace officer’s license, standing alone, does not authoriz e the imp osition of a fine . To hol d that a forfeitur e of office a lso supp orts a finding the officer has usurped or unlawfully holds the office would ignore the distinction made by the legislature when itauthorized a fine for one but not the other. See Tex. Ci v. Prac. & Rem. Cod e Ann. § 66.003(3 ) (Vernon 1997).
For purposes

of our co nsidera tion of this issue we assume, without deciding, that usurping and unlawful holding of office a re independent grounds for removal under section 66.001 (1). “Usurpat ion” impl ies an i ntrusion, encroach ment, sei zure or as sumption of off ic e o r authorit y, typica lly an office or a uthority that belo ngs to an other. See B lack’s La w Dictiona ry

1545 (6 th Ed. 1990). Here the undisputed facts show first, that appella nt took office lawfully

after an unchallenged election, and second, that no other person claimed the office. Neither

the summa ry judgmen t motion , or evidence, support a conclusion that appellant

was a “usurper” of the office of constable as that term is recogni zed in the law.
With reg ard to the State’s position that appellant unlawfully hel d or executed the office, itfails to offer any basis for reconciling its argument that appellant continued to hold
over in office after September 28, 2001, by virtue of Articl e XVI, Se ction 17 , with its position that his occupation of the office a fter the sa me date was “unlawful.” In this con text, those-17-

positions are mutually exclusive. If Article XVI, Section 17 of the state constitution required appellant

to conti nue to pe rform the d uties of the office of co nsta ble regardless of the forfeitureof his office, see Op. Tex. Atty. Gen . No. JC-0 514 (200 2), or his re signatio n, see Op. Tex. Atty. Gen. No. DM-493 (1998), then his mere continued occupation of the office
or execution of

its duties was not “unlawful” for purposes of section 66.003. Appellant was notaccused of actions constituting the unlawful execution of the office. The State’s motion for summary ju dgment al leged on ly that h e contin ued to ac cept comp ensation a fter forfeiting the office and that he failed to perform the duties of con stable.
We hold neither the State’s motion for summary

judgment or the summary judgment evidence supports a judgment for the imposition of a fine on thebasis that appellant was
a usurper of the office of const able or that he held or executed that office u nlawfully. Because a court’s authority to impose a fine i n a quo w arranto proceedi ng is li mited to instances when the official usurps, intrudes into or unlawfully holdsand executes an office, the trial court’s imposition of a fine in this case was not authorized and must be reversed. See Shield

s v. State , 936 S.W.2d 71 1, 712 (T ex.App.- -Austin 1 996, no w rit) ( quo warra nto jud gments limited to remedies authorized by statute); Tex. Civ. Prac. & Rem. Code An n
. § 66.003(3) (Vernon 1997). We sustain appellant’s fourth iss ue to th at extent. This disposition resolves appellant’s third issue challengi ng the imposition of a fin e. It al so resolves appellant’s fifth issue to the degree he contend s the fine w as an improper judgment for damages. Right to Jury Trial-18-

Appellant’s second issue assigns error to hi s re moval without a trial by jury. He relies on Article V, Section 24 of the Tex as Constitution, which provide s, in rel evant par t: [C]onstables, and other county officers, may be removed by the J udges of the District Courts for incompetency, official misconduct, habitual drunkenness, or other causes defined by law, upon the cause therefor being set forth i n writin g and thefinding of its tru th by a ju ry.
He argues this p rovision preclude s resolut ion of th is procee ding by summary ju dgment. Appellant

does not, however, point out any fact issue present in the case that wou ld requi re impaneling a jury on the question of his r emoval fr

o m office. In the ab sence of a controverted issue of

fact, a litigantcannot p roperly s ay that th e grant o f summary judgment deprived him of his constitutional right to a jury trial. Wyche v. Works , 373 S.W.2d 558, 561 (Tex .Civ.App .–Dalla s 1963, w rit ref’d n.r.e.); see Ramirez v. Flores , 505 S.W.2d 406, 414 (Tex .Civ.App .–San An tonio 19 73, writ r ef’d n.r. e .). We overrule appellant’s second i ssue. Declaration of Vacancy Appellant’s fifth issue as signs err or to that part of the trial court’s judgment declaring the office of constable vacant, arguing that decl aration exceeded the scop e of a permissible judgment in a quo warranto proceeding. We disagree the recitation in the judgment was
an improper

declara tory

judgment, finding it merely in explication of the order removing appellant from office. We overrule appellant’s fifth issue.
Conclusion-19-

Our disposition of appellant’s fourth issue requires reversal o f that par t of the trial court’s judgmentimposing a fine. When both partiesmove for summary judgment and the trial court gra nts one motion and denies the othe r, the app ellate court revi ews the s ummary judgment e vidence of both parties, determines all questions presented, and rende rs the judgment that the trial court should have rendered. See Bradley v. State ex rel. Wh ite , 990 S.W.2d 245, 247(Tex. 19 99). In so doing, t hough, th e appell ate court still mus t adhere to the rules that each movant must carry its own burden to establish its right to j udgment, Miller & Freeman Ford, Inc. v. Greater Houston Bank, 544 S.W.2d 925, 926(Tex. 19 76); Russell v. Panhandle Producing Co. , 975 S.W.2d 702, 708 (Tex.App.– Amarillo 1998, no pet.), and thatsummary judgment may not be rendered for a party on a ground not encompassed within its motio n in the trial cou rt. McConnell , 858 S.W.2d at 341. Here the onlyground on which appellant moved for summary judgment was mootness. In addressing appellant’s first issue we concluded thematter was not moot. Consequently, the trial court did not err in denying appella nt’s moti on for sum mary judgm ent. Although we have found that the evidence in the summary judgment record does not support imposition of a fine, we may not render judgment for appellant on that issue. Therefore, we sever the

issue concerning imposition of a fine and remand it to the trial court. We affirm the remainde r of the tr ial cour t’s judgme nt.

James T. Campbell

Justice-20-