Willet's Concurring Opinion in
In Re Bazan, No. 06-0952 (Tex. Mar. 28, 2008)
(Majority Opinion by Justice David Medina)
(local government officials, removal, effect of criminal conviction)
Terms: statutory construction, removal from office, may convicted felon hold office?
IN RE EDUARDO "WALO" GRACIA BAZAN; from Hidalgo County;
13th district (13-06 00616-CR, ___ S.W.3d ___, 11-01-06)
stay order issued November 30, 2006, lifted
The Court denies the petition for writ of mandamus.
Justice Medina delivered the opinion of the Court [see pdf format], in which Chief Justice Jefferson,
Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Brister, Justice Green, and Justice
Johnson joined.
Justice Willett delivered a concurring opinion.In Re Bazan [pdf version], No. 06-0952 (Tex. Mar. 28,
2008)
In re Eduardo "Walo" Gracia Bazan
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CONCURRING OPINION BY JUSTICE DON R. WILLET
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Argued September 26, 2007
Justice Willett, concurring.
Although the facts of this case are simple, resolving them has proven deceptively complex—a
Bazanian knot, as it were—requiring the Court to untangle seemingly contradictory language in the
Texas Constitution and Local Government Code, all while wrestling with our own off-the-mark
caselaw. These provisions and our precedent yield a puzzle whose pieces, each clear in isolation,
fit together inexactly. I agree fully with the Court’s result: Texas constitutional and statutory law
mandate Bazan’s removal from office. In reaching that result, however, I would harmonize the
discordant authorities in a manner that hews more closely to their explicit text, structure, and
everyday meaning.
Several provisions in Texas law speak to whether convicted felons can seek or hold elected
office. The instant removal action is premised on Article XVI, Section 2 of the Texas Constitution,
which in its entirety reads: “Laws shall be made to exclude from office persons who have been
convicted of bribery, perjury, forgery, or other high crimes.”[1] The framers’ “exclude from office”
directive has given rise to various statutes, including those in Chapter 87 of the Local Government
Code related to the removal of county officers. Section 87.031 is styled “Immediate Removal” and
declares categorically that “conviction . . . for any felony or for a misdemeanor involving official
misconduct operates as an immediate removal from office.” Clear enough. And if Section 87.031
were the complete statutory backdrop, today’s case would be easy: Bazan loses.
Our analysis is complicated, however, by Section 87.001, which by its terms limits removal
under the rest of Chapter 87 (including by definition Section 87.031) to post-election misconduct:
“An officer may not be removed under this chapter for an act the officer committed before election
to office.” These nineteen words spark several vital but vexing questions and on the surface seem
starkly at odds with both Article XVI’s “exclude from office” command and Section 87.031's
“immediate removal” language.[2] Our analysis is made tougher still by our 1989 decision in
Talamantez v. Strauss, a factually indistinguishable case that relied on Section 87.001 to bar
removal under Section 87.031 since a reelection intervened between the crime and the resulting
conviction.[3] I agree with the Court that Talamantez was wrongly decided, not just because it
flouted Article XVI, Section 2, as the Court today rightly notes, but also because it misconstrued
Section 87.001.
I. What Does “Before Election to Office” Mean?
This four-word phrase in Section 87.001 seems unambiguous on its face, but when applied to a
reelected official like Bazan, it gets murky. In such cases, does “before election to office” mean
before the first election or before the most recent election? Bazan’s crime occurred in 2001, after
his 2000 election but before his 2004 reelection. So does Section 87.001 only forgive misdeeds
that predate Bazan’s initial election (thus requiring him to remain on the straight and narrow once
he takes office) or does it mean, as Bazan insists, that he cannot be removed under Chapter 87 for
misdeeds committed while in office but that predate his most recent election (thus forgiving his 2001
misconduct)?
I think it manifestly means the former and relates to an official’s entire tenure in office, not
merely his current term in office. Our Constitution’s concern for the integrity of public office allows
no room for the notion that reelection operates to spare elected officials from the full effects of
felonies committed during a prior term, whether or not they were known to the voting public. As I
read Section 87.031, a felony conviction based on acts committed at any time while holding office
requires immediate expulsion, whether the crime occurred during the present term or during a
previous term. The protection provided by Section 87.001 applies only to acts committed before an
officer’s first “election to office.” Granting legal sanctuary to public officers convicted of felonies
committed while in office is hard to conceive and, as a judge, even harder to confirm. An official who
commits a high crime on the last day of his prior term is no less unfit than an official who commits a
high crime on the first day of his present term.
My view, however, has not carried the day with this Court historically. We held eighty-four years
ago in Reeves v. State, a state-initiated quo warranto action, that in a removal proceeding targeting
an official who had been reelected, the then-applicable phrase “prior to his election to office”
barred removal during Term B for derelictions that occurred during Term A.[4] Reeves held that
removal must occur during the same term as the misconduct and that reelection, in effect, absolves
an official of the office-related consequences of any Term-A sins.[5]
The facts in Reeves are somewhat similar to those in this case (although Reeves was a quo
warranto removal action, not, as here, a proceeding where removal is an automatic consequence of
a felony conviction). Both involve county officials who committed third-degree felonies while in office
but prior to being reelected. Reeves was elected sheriff in 1920, reelected in 1922, and indicted in
1923 for acts committed during 1921-23, spanning both terms.[6] The jury found misconduct in
both terms, and Reeves argued on appeal that he was protected from removal by Article 6055
(predecessor to Section 87.001) for any first-term offenses.[7] The Court agreed: “Reeves . . .
could not be removed from office during his second term for offenses committed during his first
term.”[8] The Court reasoned that removal could only be predicated on “acts committed
subsequent to an election to the term the officer is holding, and from which it is sought to oust him.”
[9] The Court concluded that evidence of misconduct during a prior term is prejudicial and
inadmissible, and a jury mulling removal may only consider same-term misconduct.[10]
We reaffirmed Reeves’s “reelection restricts removal” rule in Talamantez, where we held a
county commissioner could not be removed from office following his conviction for pre-reelection
acts.[11] In the instant case, Bazan argues that the trial court’s removal order “directly contradicts
Section 87.001,” which “trumps Section 87.031.”
I frankly am troubled by both Reeves and Talamantez, and I flatly reject their implicit message
that Section 87.001 protects officials who commit felonies while in office so long as they succeed in
concealing their misbehavior so that any resulting conviction comes, if at all, after reelection. As
these two cases construe Section 87.001, you can win election, commit a felony, win reelection, get
convicted, and stay in office. Indeed, if two elected officials were partners in crime, but Official A
was reelected before being convicted while Official B was convicted before being reelected,
identical offenses could result in opposite results based on election timing. It is unimaginable to me
that taxpayers would underwrite the former’s salary and the latter’s incarceration. What a deal: You
can break the very same laws that taxpayers pay you to enforce, the very same laws that you swore
to “preserve, protect, and defend,”[12] all without fear of removal if voters reelect you before jurors
convict you. It gets better. Under Bazan’s view, you can hold elected office yet be disqualified from
voting;[13] you can serve as a law enforcement officer even though, worse than hapless Barney
Fife, you cannot carry even an unloaded firearm;[14] you can (according to a formal Attorney
General opinion) serve as a peace officer even though your peace officer’s license has been
revoked.[15] Few things undermine public confidence in government more than elected officials
who exude “do as I say, not as I do” sanctimony, except perhaps a legal system that enshrines such
sanctimony by divorcing crimes from consequences. Texas law should not reward officials for being
adept at hiding their criminality until after the election passes, and while some other states’ laws
expressly limit removal to misconduct committed during the same term,[16] Texas law, in my view,
does not require that removal be confined to present-term acts. The expiration of a term in no way
prevents prosecution under the criminal law; nor should it prevent ouster under the removal law.
A straight-up application of Reeves and Talamantez would require us to reinstate Bazan, but I
believe these two cases were wrongly decided. They should not be clarified or distinguished, but
overruled altogether.[17] The Court today agrees that our 124-word opinion in Talamantez ignored
the Constitution’s controlling language, which plainly requires laws that “exclude from office” certain
people—namely felons.[18] Beyond this oversight, I believe Talamantez is wrong for another
reason.
II. What Does “Act” Mean?
Our decision in Talamantez relied exclusively on Section 87.001's broad language—no removal
“for an act the officer committed before election to office”—and on its face the word “act” sweeps
broadly, appearing to forgive felonies as mercifully as misdemeanors. In my view the interpretation
that best honors Article XVI’s directive to exclude felons is one that reads “act” in Section 87.001 to
mean a nonfelonious act, including behavior that is not necessarily criminal at all. “Low-crime”
convictions don’t make you constitutionally ineligible to hold office, and the only pertinent statute
that mentions misdemeanors is Section 87.031, which requires immediate removal upon conviction
for “a misdemeanor involving official misconduct.”
Notably, Section 87.001 uses the generic word “act”—not “high crime[ ]” (as in Article XVI,
Section 2) or “felony” (as in Section 87.031) or anything that suggests “act” even means “unlawful
act.” True, Subchapter C (“Removal by Criminal Conviction”) is focused solely on criminal
wrongdoing, but not Subchapter B (“Removal by Petition and Trial”), where the three listed grounds
for removal—incompetency, official misconduct, and intoxication—are not all criminal in nature.[19]
You may be incompetent at your job or drunk at your house, or both, but neither is a crime under
Texas law. Read naturally and contextually, “act” in Section 87.001 includes noncriminal
wrongdoing, and in my view, the criminal wrongdoing it does include must be nonfelonious
wrongdoing, and only nonfelonious wrongdoing.
Construing “act” as excluding “high crimes” reconciles every constitutional and statutory
provision pertinent to this case. It respects Article XVI, Section 2 as well as Sections 87.001 and
87.031. Reading “act” the opposite way, to include felonies such that, as Bazan contends, Section
87.001 “trumps Section 87.031” and bars removal of Term B officials for Term B convictions based
on Term A crimes, clashes head-on with the Constitution’s insistence that those convicted of “high
crimes” be excluded from public office. Bazan’s proposed construction, in my view, means one of
two things: (1) Sections 87.001 and 87.031 are hopelessly irreconcilable, or (2) Section 87.001 is
unconstitutional because it prescribes what Article XVI proscribes. Because we try to interpret
statutes in a way that avoids constitutional conflicts,[20] I would read “act” in Section 87.001 to
excuse only misdemeanors and noncriminal acts, an interpretation that reads related statutes
relatedly and effects the Constitution’s unequivocal intent that convicted felons not hold office.
In sum, Section 87.001 is a statutory exception to automatic removal under Section 87.031, and
given Article XVI’s “no felons” mandate, “act” must be construed narrowly to mean a nonfelonious
act that occurred before the officer ever entered office.
III. What Does “Under This Chapter” Mean?
In my view, the Court strays unnecessarily from Section 87.001's enacted text, which bars
removal “under this chapter”[21] for pre-election acts. Notwithstanding this whole-chapter
declaration, the Court scours the background minutiae of 130-year-old statutes to conclude that
“this chapter” does not really mean the entire chapter, but only Subchapter B, which governs
removal for civil misfeasance. The Court concludes that Subchapter C is untouched, that Section
87.001 does not do what it says it does.
I disagree. The Court’s civil-criminal distinction in Part III makes eminent sense, but we must
take the Legislature at its word: “under this chapter” in Section 87.001 means just that—the
chapter, the whole chapter, and nothing but the chapter—nothing more, but just as surely nothing
less. I presume “under this chapter” does not mean “under Subchapter B” because the Legislature
drafted, voted on, and approved the former, not the latter.[22] We must be driven by what
lawmakers did, not driven to spruce up what they did because we think they meant to do something
else. Having said that, the Court and I arrive at largely the same bottom-line view of what type of
misbehavior requires removal.
The only external restriction on the scope of Section 87.001 is that imposed by the Texas
Constitution, and Section 87.001 is powerless to thwart the constitutionally required removal of
officials convicted of “high crimes.”[23] Beneath this constitutional ceiling, Section 87.001 can freely
forgive not only the grounds for removal listed in Subchapter B but also (and this is where I differ
slightly from the Court) any Subchapter-C criminal offenses that do not rise to the level of “high
crimes.” Section 87.001 may properly be interpreted to protect officials from removal for
misdemeanor-level crimes, including those committed after the official first took office, without
offending the Constitution. So while the Court says Section 87.001 applies only to acts of civil
misfeasance (Subchapter B) and never intersects with Section 87.031 (Subchapter C), I believe
reading “under this chapter” to mean “under Subchapter B” rides a tad roughshod over the
language of Section 87.001 and forgives a tad less than is required.
IV. Conclusion
Elections may forgive a multitude of sins, but in Texas, once you swear your first oath of office,
staying in office means staying felony-free.
To be absolutely clear, I see the interaction of Texas legal authority this way:
class=Section2>
$ “High-crime” convictions (felonies)—either before or after you were first elected—
make you constitutionally ineligible to run for office or to remain in office.
$ Thus, if you are a convicted felon, you cannot seek office to begin with, and if you are
convicted of a felony after you are elected—no matter when the underlying acts took place—you
cannot remain in office.
$ To satisfy Article XVI, Section 2, Section 87.001 can only forgive acts that are not
constitutionally disqualifying—that is, misdemeanors or noncriminal acts; it cannot forgive felonies.
class=Section3>
This interpretation, in my view, honors the supremacy of the Constitution’s “no felons” directive
while also reconciling and giving effect to the text of Sections 87.001 and 87.031. Because the
Court’s construction, in my view, achieves the former at some expense to the latter, I concur in the
judgment only.
_____________________________________
Don R. Willett
Justice
Opinion delivered: March 28, 2008
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[1] The Court treats the constitutional reference to “other high crimes” as a blanket phrase that
encompasses all felonies. ___ S.W.3d ___. I do not quarrel with this interpretation, but I note that
our colleagues on the Texas Court of Criminal Appeals have taken a different stance. Perez v.
State, 11 S.W.3d 218, 221 (Tex. Crim. App. 2000) (en banc). In Perez, the defendant argued that
he was entitled to a new trial because one of the jurors had been previously convicted of felony
driving while intoxicated. Id. at 219. The court of appeals agreed, holding that Article XVI, Section 2
excluded convicted felons from serving on juries. Id. at 220. However, the Court of Criminal Appeals
reversed, relying on the doctrine of ejusdem generis to hold that the reference to “other high
crimes” in Article XVI, Section 2 is “limited to criminal conduct which demonstrates the same type of
moral corruption and dishonesty inherent in the specified offenses.” Id. at 221. Because felony DWI
did not qualify as a “high crime” under this interpretation, the juror in question was not
constitutionally disqualified from service. Id. The reasoning in Perez would not affect today’s result—
felony theft clearly qualifies as a “high crime” involving “the same type of moral corruption and
dishonesty” inherent in bribery, perjury, or forgery. However, the difference could affect future
removal cases, so the Court should pay future litigants the courtesy of discussing our sister high
court’s precedent and either distinguish Perez or adopt its less-sweeping interpretation of “other
high crimes.”
[2] Election Code Section 141.001(a)(4) is equally clear: “To be eligible to be a candidate for, or
elected or appointed to, a public elective office in this state, a person must . . . have not been finally
convicted of a felony . . . .” This provision is unambiguous but also inapplicable since Bazan has not
yet exhausted his post-conviction appeals. “‘The law is settled that a conviction from which an
appeal has been taken is not considered to be a final conviction until the conviction is affirmed by
the appellate court and that court’s mandate of affirmance becomes final.’” Fletcher v. State, 214 S.
W.3d 5, 6 (Tex. Crim. App. 2007) (quoting Jones v. State, 711 S.W.2d 634, 636 (Tex. Crim. App.
1986)).
[3] 774 S.W.2d 661 (Tex. 1989) (per curiam).
[4] 267 S.W. 666, 667, 669 (Tex. 1924).
[5] Id. at 669.
[6] Id. at 667; Reeves v. State, 258 S.W. 577, 577-78 (Tex. Civ. App.—Texarkana 1924), rev’d, 267
S.W. 666.
[7] Reeves, 267 S.W. at 667, 669.
[8] Id. at 669.
[9] Id.
[10] Id.
[11] Talamantez v. Strauss, 774 S.W.2d 661, 661-62 (Tex. 1989) (per curiam).
[12] Tex. Const. art. XVI, § 1(a).
[13] Tex. Elec. Code §§ 11.001(a)(1), 11.002(4).
[14] Tex. Penal Code § 46.04(a).
[15] Op. Tex. Att’y Gen. No. No. JC-0514 (2002).
[16] See State v. Hasty, 63 So. 559, 561 (Ala. 1913); Eagleton v. Murphy, 156 S.W.2d 683, 686
(Mo. 1941).
[17] Because the Court declines to overrule Reeves, the rest of my opinion presumes Reeves’s
continuing vitality.
[18] Tex. Const. art. XVI, § 2.
[19] Tex. Loc. Gov’t Code § 87.013(a).
[20] See Tex. Gov’t Code § 311.021(1); Brooks v. Northglen Ass’n, 141 S.W.3d 158, 169 (Tex.
2004).
[21] Tex. Loc. Gov’t Code § 87.001.
[22] Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006).
[23] See Tex. Const. art. XVI, § 2; see also In re Bates, 555 S.W.2d 420, 428 (Tex. 1977).