Bianchi v. State

444 S.W.3d 231

Richard BIANCHI, Appellant

v.The STATE of Texas, Appellee.

No. 13–14–00303–CV.

Court of Appeals of Texas, Corpus Christi–Edinburg.

Aug. 21, 2014.

C. Robert Heath, Bickerstaff Heath Degado Acosta, LLP, Austin, Audrey Mullert Vicknair, Corpus Christi, for Appellant.

Michael E. Welborn, Dist. Atty., Sinton, for Appellee.

Before Chief Justice VALDEZ and Justices PERKES and LONGORIA.

OPINION

Opinion by Chief Justice VALDEZ.

Richard Bianchi appeals the district court's judgment rendered for the State of Texas—acting by and through Michael E. Welborn, the District Attorney of Aransas County—declaring that Bianchi is “unlawfully holding [the] office” of County Attorney of Aransas County and ordering Bianchi removed from office effective “immediately,” pursuant to the Texas quo warranto statute.See Tex. Civ. Prac. & Rem.Code Ann. §§ 66.001 –.003 (West, Westlaw through 2013 3d C.S.). By previous order, the Court stayed the district court's judgment. See Tex.R.App. P. 43.6. For the reasons stated herein, see Tex.R.App. P. 47.1, the Court now reverses the district court's judgment and renders a take nothing judgment against the State. See Tex.R.App. P. 43.2(c).

I. Background

Before the bench trial was held in this cause, the parties executed and filed with the district court a written stipulation regarding the facts relevant to the case, which are not in dispute. The written stipulation and the exhibits that were attached to the stipulation were admitted into evidence during the bench trial. The stipulation and exhibits reflect the following facts.

The voters of Aransas County duly elected Bianchi for a second term of office as County Attorney, which began on January 1, 2013 and will end on December 31, 2016. In June of 2013, when there remained more than one year and thirty days in his unexpired term of office, Bianchi announced his intention to run for the Aransas County Court at Law. On June 24, 2013, Bianchi appeared before an open session of the Aransas County Commissioners Court and informed the Commissioners Court that he was running for the County Court at Law position and that his candidacy operated as a constructive resignation of his office under the resign-to-run provision of the Texas Constitution. See Tex. Const. art. XVI, § 65 (b). Bianchi also advised the Commissioners Court that they had the power to appoint his replacement who would serve as interim County Attorney until his successor was duly qualified.¹ Bianchi further advised the Commissioners Court that if they did not appoint his successor, he was obligated to remain and serve as the holdover County Attorney pursuant to the holdover provision of the Texas Constitution, until his successor was duly qualified. See id. art. XVI, § 17. The minutes to the June 24, 2013 meeting were attached to the parties' written stipulation, marked as “Exhibit A” thereto, and admitted into evidence at trial.

The Commissioners Court took no action to replace Bianchi. Bianchi continued to execute his duties as County Attorney, but he remained an active candidate for the position of Judge of the County Court at Law.

On January 8, 2014, the District Attorney sent a letter to the Commissioners Court advising that he had “received numerous inquiries and/or complaints about the current status of the Aransas County Attorney's Office.” In the letter, the District Attorney asserted that “Bianchi resigned his position as County Attorney when he announced ... his intentions to seek election to the position of Judge of the Aransas County Court at Law.” See id. art. XVI, § 65(b). The letter advised that the holdover provision of the Texas Constitution “does not apply to vacancies created by operation of the Texas Constitution.” See id. art. XVI, § 17. In the letter, the District Attorney recognized that “[t]here does exist an Attorney General's opinion that opines that the ‘Hold over’ provision does apply to the ‘resign to run’ provision.” However, the District Attorney stated that “Attorney General opinions are only advisory.” The District Attorney's letter concluded with three paragraphs, quoted below, in which he (1) admitted the Commissioners Court had not violated the Constitution or laws of the State of Texas, (2) suggested that the Commissioners Court was using their position of power to manipulate the upcoming elections, and (3) threatened to commence an action in quo warranto to remove Bianchi from office:

While the Commissioner's Court failure or refusal to take action on seeking a qualified applicant for the position of Aransas County Attorney may not be technically violating the Constitution and laws of the State of Texas, such non action certainly violated the spirit of the “resign to run” law, as provided by the Texas Constitution and brings into question whether the members of the Aransas County Commissioner's Court are preserving, protecting and defending the Constitution and laws of the State of Texas.

Additionally, it is becoming harder and harder for me in my position to convince concerned citizens of Aransas County that the Aransas County Commissioner's Court is not actively utilizing their position of power to manipulate the upcoming elections.

If requested I am prepared to file an action in Quo Warranto ... to procure a judicial determination as to whether the “hold over” provisions of Article 16, Section 17 of the Texas Constitution do apply to a resignation of office under Article 16, Section 65 of the Texas Constitution. However, appropriate action by the Aransas County Commissioner's Court could resolve this matter without additional time and expense for all parties involved.

On January 14, 2014, C.H. “Burt” Mills Jr., the County Judge of Aransas County, sent a letter responding to the District Attorney. In the letter, County Judge Mills informed the District Attorney that the Commissioners Court had “consulted with outside counsel, selected by [the] Texas Association of Counties, regarding these issues and the possible appointment of an interim County Attorney to serve until the election.” In relevant part, County Judge Mills stated in his letter as follows:

[There are] ... three Attorney General opinions—all reaching the same result. When an officer constructively resigns by running for another office, he holds over until his successor is appointed and qualifies. DM–377(1996) JC–0318(2000) and GA–0500(2007). How in the world could following the opinions of every Attorney General to consider the subject and our own outside counsel be anything other than preserving and defending the laws of Texas?

County Judge Mills also stated the following in his letter:

I am confident that the Constitution as interpreted by several Attorney Generals authorizes Mr. Bianchi to remain as a hold over County Attorney with all powers of office until his successor is elected and qualifies. I am equally confident that the Election Code grants the Commissioner's Court the discretion to decide whether to appoint an interim replacement or let the voters decide. I know I have made an informed and well reasoned decision to let the voters decide.

Also attached to the parties' written stipulation and admitted into evidence at trial were the minutes of a meeting held by the Commissioners Court on February 10, 2014. The minutes contain the following passage relevant to this case:

SUCCESSOR COUNTY ATTORNEY AFTER PRIMARY

Judge Mills stated, “The Court has discussed with our legal counsel the appointment procedure for the County Attorney position, and I believe we should defer any action pending the outcome of the electoral process. In the meantime, I personally reject the threats of action and feel that my decision is in accordance with my legal responsibilities under [Local] Government Code Section 87.041. Additionally, if the District Attorney wants to file a lawsuit against someone, I feel he should just file against the Commissioners' Court.”

Commissioner Smith asked the following taken from a letter dated February 6, 2014, from County Attorney Richard P. Bianchi be entered in the Court's minutes—“You have and continue to act in accordance with the law. However, a change of circumstances may be nearing that should be considered. There is no candidate in the Democrat Primary, so the winner of the Republican Primary on March 4 will be the likely replacement. When you are able to determine the final winner of the Republican Primary, that such candidate is able to assume office, and also reasonably determine there will be no independent candidate, circumstances warrant a reassessment of appointing my replacement,” Smith also stated [the] Commissioners' Court has had a history of appointing candidates when there is no other candidate for a position.

Also on February 10, 2014, the District Attorney filed this quo warranto action to remove Bianchi from the office of County Attorney. See Tex. Civ. Prac. & Rem.Code Ann. § 66.001 –.003. Thereafter, Bianchi filed a motion to dismiss under Rule 91a of the Texas Rules of Civil Procedure, which the district court denied. See Tex.R. Civ. P. 91a.

According to the parties' written stipulation, on March 4, 2014, there were two political candidates for the office of Aransas County Attorney in the Republican primary: Steve Fisher and Kristen Blanford. Blanford won the Republican primary. There were no candidates in the Democratic primary.

Attached to the parties' written stipulation and admitted into evidence was an undated, joint letter from Bianchi and Blanford stating in relevant part as follows:

Now that the primary elections are over, we believe this is an appropriate time to suggest a transition plan for your consideration. Although our plan can be implemented under the existing authority and budget of County Attorney Richard Bianchi, it is fully understood that [the] Commissioners' Court has the authority to alter that plan at any time by appointing a successor to Bianchi.

In all probability, Kristen Blanford will be the next Aransas County Attorney.

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