NO. 07-04-0038-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D SEPTEMBER 9, 2004

__________________________ LEON “BU BBA” SMIT H, Appellant

v. THE STATE OF TEXAS ex rel. SONYA LETSON, Appellee

_________________________________ FROM THE 108 TH DISTRICT COURT OF POTTER COUNTY; NO. 91-322-E; HON. JACK D. YOUNG, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, REAVIS, and CAMPBELL, JJ. Leon “Bubba” Smith appeals from an order denying his plea to the jurisdiction of the court. Before us, he asserts two reasons purportedly expla ining why the dec i sion was wrong. We

affirm thetrial co urt’s ord er. Leon “Bubba” Smith appealed, under §51.014(a)(8) of the Texas Ci vil Practice and Remedies Code, contending that the trial court erred in overruling his plea to the jurisdiction of the court

. Accordi ng to therecord before us, the State of Texas, through Sonya Letson,2

Potter County A

ttorney, i nitiated suit aga inst Smit h to remove him from office. He held, and continues to hold, the position of Potter County Constable, Precinct 4. Smith then filed a plea to the jurisdiction of the trial court asking it to dismiss the suit under the do ct rine of sovereign immunity. The trial court denied the plea, and Smith pe rfected an interloc utory appeal from the order. He now contends that the trial court lacked jurisdi ction over the proceeding becausethe Sta t e failed to compl y with va rious sta tutory req uirements pertaining to the removal of elected officials. We address each issue in turn. Failure to Obtain an Order Permitting Service of Citation The first issue before us involves whet h er statute obligated the State to obtain an order from the district court requiring issuance of citatio n upon an amended petition and service of that document upon Smith. The st atu te in question is §87.016 of the Texas Local Go vernment C ode. The rein, thelegisla ture dire cted that: After a petition for removal is filed, the person filing the petition shall apply to the district judge in writing for an order requiring a ci tation and a certified copy of th e petitio n to be se rved on th e officer

. T EX
. L OC
. G OV ’ T C ODE A NN
. §87.016(a) (Vernon 1999). According to Smith, this provision encompassed both original and amended petition s. And, b ecause th e State n eglected to fulfill its requirement, the trial court lacked and lacks jurisdiction to proceed. We d isagree. The contention before us was expressly addressed a nd rejected in Huntress v. State , 88 S.W.2d 636 (Tex. Civ. App.–San Antoni o 1935, wr it dism’d w.o.j.). P er Huntress , removal proceedings must be conducted, to the extent possible, in accordance with the rules of procedure and practice applicable to civil cases in general

. Id. at 644-4 5; accord T EX
. L OC
. G OV ’ T C ODE A NN . §87.018(b) (Vernon 1999) (stating the sam e). And, since a plainti ff generally is authorized by the rulesof civil procedure to freely amend his petition,1 The auth ority up on w hich Sm ith relied to arg ue o therw ise is ina ppo site. B ot h thi s court ’s dec isi on

in State ex rel

. Kel ly v. Baker , 580 S.W .2 d 611 (Tex. Civ. App.–Amaril lo 1979, no wri t) and that of t he Beaumont Court o f Appeal s in Johnson v. Mooney , 241 S.W. 308 ( Tex. Ci v. App. –Beaumont 192 2, no writ) dealt with the ver if icat ion of an amended peti ti on. Moreov er, the stat ute i n eff ect at the ti me mandated that the petition sha ll “in eve ry insta nce ” be v erified. T EX
. R EV
. C IV
. S TAT
. A NN . ar t. 5977, repealed by Act of May 1, 1987, 70 th Leg ., R.S ., ch. 14 9, § 49( 1) , 198 7 Te x. Gen. Laws 1306, 13 07. That the l egisl atur e incl uded the phrase “in every inst ance” i n the st atut e could not be ignor ed in Ke lly and Mooney

. Se e e.g . State ex re l Ke lly v. Baker , 58 0 S .W .2d a t 613 -14; Johnson v. Mooney , 241 S. W. at 310. Yet, such a cl ause is absent fr om §87.016( a). Thus, a plai nti ff is no t di rect ed by our legi slat ure t o applyfor the order

descri bed in § 87.016( a) “in eve ry insta nce ” that he ma y file a pe tition after the su it has a lread y be en c om me nce d. 3 a trial court need not require the plaintiff to obtain a n order directing that citation once again issue when he amends his peti tion. Huntress v. State , 88 S.W.2d at 644-45. Thus, the trial court at bar wa s not obl igated to dismiss the causefor want of jurisdi cti on beca use the State did not comply with §87.016(a) when it amende d its petition. 1 Failure to Include the Requisite Allegations Next, Smith contends that the trial court lacked jurisdiction over the cause since the allegations contained in the amended ple ading were not specific enough. We disag ree. According to statute, the petition must “set forth grounds alleged for the removal of the officer i n plain and inte lligibl e langua ge.” T EX
. L OC
. G OV ’ T C ODE A NN . §87.0 15(c) (Vernon 1999). So too must the plaintiff “cite the time and place of the occurrence of each actalleged as a ground for removal with as muc h certainty as the nature of the case permits.” Id. This wo rding isvirtuall y identi cal to th at appea ring in t he prede cessor to §87.015( c). See Tex. Rev. Civ. Stat. Ann.. art. 5977 (repealed by Act of May 1, 1987, 70 th Leg., R.S., ch. 149, §49(1), 1987 Tex. Gen. Laws 1306, 1307)(requiring that the petition “setforth in plain and intelligibl e words, the c ause or causes alleged as the grounds of removal, giving in each instance , with asmuch certainty as the natur e of the case will admit of, the time and place of the occurrence of the alleged acts . . . .”). More importantly, our4

Supre me Court has construed the language as simply de manding that the petit ion b e “specificand certa in.” State ex rel. Hig htower v. Smith , 671 S.W.2d 32, 34 (Tex. 1984)

. Here, the State included a myr iad of a llegations purportedly justifying Smith’s removal. One involved co ntact between Smith and an a lleged v ictim of acrime. Wi th regard to that e ncounter, the Statealleged that the perpetrator of the crime was Smith’s brother. So too did it st ate that Sm ith 1) “approached” the victim on “July 21, 2001," 2) informed him that he (Smith) was a constable “investigating the matter at the behest of a court,” and 3) “suggested that the victim was lying about the incident . . . and . . . the victim’s continued participation in the case could result in detrimental legal repercussions to the victi m. ” This was not the only encounter between the two, according to the allegations. On “August 8, 2001," the victim was aga in conta cted. Du ring this encounte r, Smith “suggested that the victim had one more chance to change his story . . . or [Smith] could not ‘protect him.’” Finally, it was alleged that “[d]espite . . . [the] veiled threats to the victim . . . [Smith’s] brother subsequently pleaded guilty in the underlying crimin al action.” Whethe r or not the se factual contentions are true, they must be accorded a liberal interpretation. See Roark v. Allen, 63 3 S.W.2d 804, 809 (Tex. 1982) (holding that the allegations in a petition must be liberally construed). Upon applying that standard, we can reasonablyconstrue the claim mentioned above as an all egation that Smith tried to induce a witnes s to alter or

withhold potential testimony in a criminal p roceeding. And, because statute criminal izes one ’s effort to coerc e a presen t or prospective witness in an official proceeding to, among other thi ngs, testi fy falsel y or withhol d testimo ny or inf ormation, T EX
. P EN
. C ODE A NN . §36.05(a) (Vernon 2003), the claim is sufficiently certain and spec ific to
aver a purpor

ted insta nce of off

icial mi sconduct

. See T EX
. L OC
. G O V ’ T C ODE A NN
.5

§87.0 11(3 ) (Vernon 1999) (defining official misconduct as “intentional , unlawful behavior relating to offici al dutie s by an officer en trusted w ith the a dministr ation of justice or the execution of law”). And, “official misconduct” is one ground authorizin g the removal of a constable from office. See id. §87.013 (a)(2) (sta ting thatan officer may be removed for official misconduct). Thus, the pleading requiremen ts of §87.015(c) of the Local GovernmentCode were satisfied, and the trial court wa s not requ ired to d ismiss th e suit. ThatSmith attempted to explain the legitimacy of his acts matters not. Assuming arguen do that onemust aver specifi c and cer

tain grou nds of mi sconduct to vest th e tri a l court with sub

ject matter

jurisdic tion ove r the caus e (as Smi th po sited), whether the allegations at bar did so is generally determined f rom the face o f the peti tion. City of Lubbock v. Rule v. 68 S.W.3d 853, 857(Tex. Ap p.–Amaril lo 2002, no writ). And, while the trial court could have received a limited amount of e vidence, itcould do so only to resolve the jurisdictional dispute, not to adjudicate the merits of the unde rlying cause of a ction. Id. Simplyput, a plea to the jurisdiction o f the c ourt cann ot be invoked as amechani sm to address the merit

s of the ca se. Id. Moreover, Smith’s efforts to justify his conduct neither appear in the State’s amended petition nor affect the question of jurisdiction. Instead, they liken to a defense offered to negate the validity of the ground for removal . In other words, theygo to the merits of the case, not to the trial court’s subject-matter jurisdiction. Consequently, they could not be used as a way to obtain a dismissal on the b as is of jurisdict ion. In sum, we overrule Smith’s issues and affirm theorder of the trial court denying the plea to t he jurisd iction of the cour t.6 Brian Quinn Justice