Donald Wayne Stevens v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00247-CV
___________________________
DONALD WAYNE STEVENS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 97th District Court
Archer County, Texas
Trial Court No. 2021-0149A-CV
Before Bassel, Womack, and Walker, JJ.
Opinion by Justice Walker
OPINION
In this quo warranto proceeding, Appellant Donald Wayne Stevens appeals
from the trial court’s judgment ousting him from the office of constable in Archer
County, Texas. In a single issue, Stevens argues that the trial court’s judgment was
based on an erroneous conclusion of law related to whether he provided evidence of a
permanent peace officer license to the commissioners court as required by subsection
86.0021(b) of the Texas Local Government Code. See Tex. Loc. Gov’t Code Ann.
§ 86.0021(b). We will reverse and render in Stevens’s favor.
I. CONSTABLE QUALIFICATIONS AND REMOVAL
Section 86.0021 of the Texas Local Government Code outlines the eligibility
requirements for holding the office of constable. Id. Among other possible qualifiers,
a person is eligible to serve as constable if he is “an active or inactive licensed peace
officer.” Id. § 86.0021(a)(1)–(2). Further, “[o]n or before the 270th day after the date
a constable takes office, the constable shall provide, to the commissioners court of the
county in which the constable serves, evidence that the constable has been issued a
permanent peace officer license under Chapter 1701, Occupations Code.” Id.
§ 86.0021(b). A constable who fails to provide such evidence forfeits his office and is
subject to removal in a quo warranto proceeding. Id.
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II. BACKGROUND
A. FACTUAL BACKGROUND
The material facts in this case are undisputed. Stevens was elected as constable
in Archer County, Texas, and took office on January 1, 2021. He had previously
served as a constable in Archer County from 2005–2008. When he took office in
January 2021, Stevens held a permanent peace officer license that was originally issued
to him in 2002 by the Texas Commission on Law Enforcement (TCOLE). However,
his license had 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 documents to the Archer
County Judge: a completed Appointment Application Form L-1 (L-1) and a copy of
his then-current Personal Status Report (PSR).2 The L-1 was an application that
1
A TCOLE official testified that a permanent peace officer license includes
both active and inactive licenses. The parties stipulated before trial that Stevens
maintained an inactive permanent peace officer license from January 1, 2021, until it
became active on November 15, 2021. The State concedes on appeal that Stevens
has, at all relevant times, held a permanent peace officer license.
2
At trial, Stevens testified that he provided both of these documents to the
county judge at the same time on February 8, 2021. The county judge testified that he
only remembered receiving the L-1 but did not dispute that Stevens also gave him a
copy of his PSR. Further, in the statement of facts of his appellant’s brief, Stevens
again states, with supporting record references, that he provided a copy of his PSR to
the county judge on February 8, 2021—a fact that the State does not contradict in its
appellee’s brief. For these reasons, we will accept this fact as true. See Tex. R. App.
P. 38.1(g) (providing that appellate courts in civil cases “will accept as true the facts
stated [in an appellant’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.—
3
TCOLE required from Stevens upon his election to office.3 On it, Stevens had
written his TCOLE license number and other identifying information and had also
acknowledged that he was a license holder with a more than 180-day break in service.
The county judge signed the L-1, certifying that he was the chief administrative officer
of Archer County and that the county “ha[d] on file and readily accessible to
[TCOLE] the appropriate documents to show that [Stevens] meets the minimum
standards for licensing and/or appointment.” The PSR listed all of Stevens’s peace
officer service records, including the date that he originally obtained his peace officer
license, the date that he entered into inactive status, and the dates during which he
had served as constable. It also showed all of the peace officer positions that Stevens
had held over the years, including a stint as an officer with the Archer County
Sheriff’s Department in 2002.
Stevens and the county judge also had multiple conversations regarding the
qualification requirements for the office of constable. The county judge was aware
that Stevens had been licensed in the past as a peace officer and also that Stevens’s
license was inactive when he took office in January 2021. Additionally, Stevens spoke
with the Archer County sheriff and county attorney about the fact that his permanent
Austin Oct. 30, 2019, pet. denied) (“A quo warranto suit is a civil proceeding
governed by the rules applicable to all civil actions.”).
3
According to Stevens, TCOLE informed him that he needed to have the
county judge sign the L-1 for “notification” purposes “because it had [Stevens’s]
licensing on it.”
4
license was inactive and his plans to reactivate it. And the county attorney had been
in contact with TCOLE and the Texas Attorney General’s office regarding the matter.
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
commissioners court, the county clerk, or the county treasurer.4 Stevens did not
present the L-1 or PSR to any other county official, and he never attended a meeting
of the commissioners court. He also never specifically requested the county judge—
or any other county official—to present the documents at a commissioners court
meeting.
Between October 2020 and November 2021, Stevens took steps to reactivate
his license with TCOLE, which included completing the requisite continuing
education courses and taking a reactivation exam. After delays brought on by the
COVID-19 pandemic and Stevens’s failing the exam on his first attempt, his license
was eventually placed back into active status on November 15, 2021. Stevens
immediately contacted the county judge and county attorney to inform them that his
license had been reactivated.
4
For example, after taking office Stevens gave the county treasurer a copy of a
certificate showing that he had recently completed a TCOLE newly-elected
constable’s course. This certificate was then given to the county clerk, who included
it in a packet with other documents to be considered at the next commissioners court
meeting.
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B. PROCEDURAL BACKGROUND
On December 13, 2021, the State filed a suit in quo warranto seeking to
remove Stevens from office for noncompliance with Local Government Code
Subsection 86.0021(b). The State alleged that Stevens did not have a permanent
license by September 29, 20215—the 271st day after he took office—and that he had
failed to provide evidence of permanent peace officer licensing to the commissioners
court by that date.
After a bench trial, the trial court entered a judgment ousting Stevens from
office. In its findings of fact, the trial court found that Stevens “did not maintain an
active permanent peace officer license before September 29, 2021” and “did not
provide evidence of an active permanent peace officer license to the Archer County
Commissioners Court before September 29, 2021.” The trial court also made the
following conclusions of law:
• “Local Government Code § 86.0021 requires a constable to maintain an active
permanent peace officer license within 270 days of being sworn into office.”
• “Local Government Code § 86.0021 places the responsibility on a constable to
provide evidence of an active permanent peace officer license to the commissioners
court within 270 days of being sworn into office.”
• “Because [Stevens] failed to maintain an active permanent peace officer license
within 270 days of being sworn into office, [Stevens] has forfeited his office.”
5
The State has since abandoned this argument and, as noted above, concedes
that Stevens has held a permanent license since 2002.
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• “Because [Stevens] failed to provide evidence of an active permanent peace
officer license to the Archer County Commissioners Court within 270 days of being
sworn into office, [Stevens] forfeited his office.”
III. DISCUSSION
Stevens contends on appeal that the trial court reversibly erred by concluding
that subsection 86.0021(b) requires a constable to maintain an active permanent peace
officer license and that Stevens forfeited his office by failing to show evidence of an
active permanent license to the commissioners court within the 270-day window.
Stevens requests that we render judgment in his favor, arguing that, because the
material facts are undisputed, the only questions left for the resolution of the case
require de novo review. The State responds that the trial court judgment should be
upheld because Stevens failed to provide evidence of any licensing directly to the
commissioners court as required under subsection 86.0021(b). We agree with
Stevens.
A. THE CONCLUSIONS OF LAW WERE ERRONEOUS
AND LED TO IMPROPER JUDGMENT
1. Standard of Review and Relevant Law
We review a trial court’s conclusions of law de novo. BMC Software Belgium,
N.V. v. Marchand, 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 pet.). A conclusion of law
will be reversed if it is erroneous as a matter of law and led to the rendition of an
improper judgment. Marchand, 83 S.W.3d at 794; Wise Elec., 476 S.W.3d at 679; In re
7
J.J.L.-P., 256 S.W.3d 363, 376 (Tex. App.—San Antonio 2008, no pet.); see Tex. R.
App. P. 44.1(a) (providing that no error in a civil case may be reversed on appeal
unless the error “probably caused the rendition of an improper judgment”).
2. Analysis
The trial court’s conclusion of law that subsection 86.0021(b) “requires a
constable to maintain an active permanent peace officer license within 270 days of
being sworn into office” is erroneous as a matter of law. Subsection 86.0021(b) does
not require a constable to maintain an active license within the 270-day window, only a
permanent license. The evidence established—and the parties agree—that a
permanent license includes both active and inactive licenses. This distinction is
important under the facts of this case where it was undisputed that Stevens
maintained an inactive but permanent license at all relevant times.
All of the trial court’s conclusions flow from its mistaken recitation of the law.
The judgment—proceeding under this erroneous recitation—concludes that Stevens
forfeited his office because he did not “provide evidence of an active permanent
peace officer license to the Archer County Commissioners Court within 270 days of
being sworn into office . . . .” In short, the trial court imposed upon Stevens a
statutory duty that did not exist. Thus, we hold that the erroneous conclusions of law
are reversible because they “probably caused the rendition of an improper judgment.”
See Tex. R. App. P. 44.1(a).
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B. STEVENS SUBSTANTIALLY COMPLIED WITH § 86.0021;
RENDITION IS THE PROPER REMEDY
Having held that the trial court reversibly erred, we must now determine the
appropriate remedy. Because the material facts are undisputed in this case, we will
review de novo whether Stevens provided evidence of a permanent peace officer
license to the commissioners court within 270 days of taking office as required by
subsection 86.0021(b), and then render judgment accordingly. See Tex. Loc. Gov’t
Code Ann. § 86.0021(b).
1. Standard of Review and Relevant Law
Appellate courts review legal determinations de novo and “[w]hat might
otherwise be a question of fact becomes one of law when the fact is not in dispute or
is conclusively established.” Reliance Nat. Indem. Co. v. Advance’d Temporaries, Inc.,
227 S.W.3d 46, 50 (Tex. 2007); Bianchi v. State, 444 S.W.3d 231, 246 (Tex. App.—
Corpus Christi–Edinburg 2014, no pet.); see City of San Antonio v. Tenorio, 543 S.W.3d
772, 776 (Tex. 2018) (“Whether a governmental unit has actual notice is a fact
question when the evidence is disputed, but it is a question of law when the evidence
is undisputed.”); cf. G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 511
(Tex. 2015) (holding that, when the relevant facts are undisputed, 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 327, 330 (Tex. 2005) (“Where the underlying facts are undisputed,
determination of the existence, and breach, of fiduciary duties are questions of law,
9
exclusively within the province of the court.”) (internal quotations omitted); Klein v.
Century Lloyds, 154 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 undisputed, the question then becomes a question of law for
determination by the court.”). Ordinarily, when a trial court judgment is reversed
after a bench trial solely on a question of law, appellate courts are to render the
judgment that the trial court should have rendered. Leteff v. Roberts, 555 S.W.3d 133,
139 (Tex. App.—Houston [1st Dist.] 2018, no pet.); see Tex. R. App. P. 43.3 (“When
reversing a trial court’s judgment, the court must render the judgment that the trial
court should have rendered” unless remand is necessary for further proceedings or
required in the interests of justice); Bianchi, 444 S.W.3d at 250 (reversing and rendering
in a quo warranto proceeding where the undisputed facts established that a county
attorney was not guilty of unlawfully holding his office).
A person may be said to have substantially complied with certain statutory
requirements if they fulfill the ultimate purpose of the statute. See Sorrell v. Estate of
Carlton, 593 S.W.3d 167, 173 (Tex. 2017) (holding that “substantial compliance is
insufficient to satisfy a statutory deadline, [but] it may be sufficient to comply with
other statutory requirements”); Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 926 (Tex.
2011) (holding that substantial compliance with notice requirement was sufficient
because “[t]he statute was not intended to create a procedural trap” when it is
undisputed that the appropriate officials have notice); see also Washington v. Related
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Arbor Court, LLC, 357 S.W.3d 676, 681 (Tex. App.—Houston [14th Dist] 2011, no
pet.) (collecting cases to show that “a wide range of Texas cases hold[] that statutory
notice requirements may be satisfied by a method of service other than the prescribed
statutory method when” the intended recipient acknowledges receipt and has actual
knowledge of the 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-operative
notice statute was sufficient because the purpose of the statute was not to “impose
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,
611 S.W.3d 1, 13 (Tex. 2020) (holding that Defamation Mitigation Act requirement
that plaintiffs request in writing a correction to the offending publication before filing
a defamation suit was fulfilled, among other reasons, because the plaintiff had
complied with the Act’s “expressly stated purpose”).
2. Analysis
In Roccaforte, the Texas Supreme Court was tasked with deciding whether a
person had met the notice requirements of Texas Local Government Code
Section 89.0041, which requires plaintiffs suing a county to provide written notice of
their claim to the county judge and county attorney by certified or registered mail or
risk having their suit dismissed. Roccaforte, 341 S.W.3d at 926. There, the plaintiff did
not mail a written notice but instead served the county judge and county attorney with
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personal service of process. Id. at 920. The court held that this notice substantially
complied with Section 89.0041, a non-jurisdictional statute, because it fulfilled the
purpose of the statute—to ensure that the proper county officials were made aware of
the pending suit so as to properly answer and defend against it. Id. at 926–27.
We believe that Roccaforte’s reasoning applies well to this case where the statute
at issue is likewise not jurisdictional—in fact it does not relate at all to pre- or post-
suit notice—and places only an ill-defined and broad duty upon constables to
“provide . . . evidence” to the commissioners court. See Tex. Loc. Gov’t Code Ann.
§ 86.0021(b). Subsection 86.0021(a) states that a person is eligible to hold the office
of constable if he is an active or inactive licensed peace officer. Id. § 86.0021(a).
Subsection 86.0021(b) provides that a constable forfeits his office unless, “[o]n or
before the 270th day after the date a constable takes office, the constable [] provide[s],
to the commissioners court of the county in which the constable serves, evidence that
the constable has been issued a permanent peace officer license under Chapter 1701,
Occupations Code.” Id. § 86.0021(b).
Thus, the apparent purpose of subsection 86.0021(b) is to ensure that the
commissioners court has timely notice that a newly-elected constable holds either an
active or inactive permanent peace officer license. See id. Stevens contends that he
complied with this requirement when he provided copies of his L-1 and PSR to the
county judge on February 8, 2021. The State contends that simply providing the
documents to the county judge without explanation or a specific request that they be
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presented to the entire commissioners court was not enough to comply with
subsection 86.0021(b). We disagree with the State and hold that Stevens substantially
complied with subsection 86.0021(b)’s notice requirement. See Roccaforte, 341 S.W.3d
at 926.
Stevens gave copies of his L-1 and PSR to the county judge on February 8,
2021—well within the 270-day window. This documentation showed that Stevens
was a licensed peace officer who, at the time of taking office, had been on inactive
status since 2013. The PSR showed that he had worked as a peace officer in multiple
capacities for more than a decade, including as an officer for the Archer County
Sheriff’s department in 2002. And on the L-1, the county judge acknowledged with
his signature that the county had on file “the appropriate documents to show that
[Stevens] [met] the minimum standards for licensing and/or appointment.” Beyond
providing these documents, Stevens also had multiple conversations with the county
judge and county attorney about his licensing status and the progress he was making
toward reactivating his license. The county judge testified that a person can have an
item added to the Archer County Commissioners Court’s agenda by first presenting
that item to the county judge.
Thus, Stevens provided to the Archer County Judge (the presiding officer of
the commissioners court, see Tex. Const. art. V, § 18) and the Archer County Attorney
(the county’s legal advisor, see Tex. Gov’t Code Ann. § 41.007) evidence that he held a
permanent peace officer license. The county judge was an acknowledged conduit
13
through which evidence of this licensing could have been added to the commissioners
court agenda, and Stevens had no general right to speak at a commissioners court
meeting concerning his licensing unless the issue was first placed onto the agenda. See
Tex. Gov’t Code Ann. §§ 551.001(3)(B), 551.002, 551.007 (requiring only that public
testimony be allowed regarding items placed on the meeting agenda); Charlestown
Homeowners Ass’n, Inc. v. LaCoke, 507 S.W.2d 876, 883 (Tex. App. Dallas—1974, writ
ref’d); Op. Tex. Att’y Gen.No. JC-0169 (2000). That Stevens had previously served as
both a constable and sheriff’s deputy in Archer County is further evidence that the
commissioners court was fairly apprised that he held a permanent peace officer
license. For these reasons, we conclude that the purpose of subsection 86.0021(b)’s
notice requirements was fulfilled in this case.
To hold otherwise would create a procedural trap that could lead to a duly-
elected constable forfeiting his office even after providing timely, sufficient licensing
evidence to a county official who is recognized as one channel through which items
are regularly placed on the commissioners court agenda. See Roccaforte, 341 S.W. at
926–27. All it would take is for that evidence to then be kept—either inadvertently or
purposefully—from ever appearing on the court’s agenda for 270 days. This is
precisely what happened to Stevens here.
The State argues that merely providing evidence to the county judge did not
suffice to fulfill Stevens’s obligations under subsection 86.0021(b) because Texas
courts have held that the commissioners court can act only as a single body and
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cannot be bound by the unauthorized action of one member. This argument is
unavailing because the situation at hand does not involve any unauthorized action by
the county judge. Rather, the issue here may be more aptly construed as one of
inaction, specifically the county judge’s failure to place the evidence provided by
Stevens before the commissioners court. The county judge took no action—much
less any unauthorized action—to bind the commissioners court to anything. And
ultimately, the commissioners court had no say in approving Stevens’s candidacy—it
was merely entitled to evidence of his licensing, which it received for purposes of
subsection 86.0021(b).
IV. CONCLUSION
Accordingly, having held that the trial court reversibly erred and that the
undisputed evidence shows that Stevens substantially complied with the requirements
of subsection 86.0021(b), we reverse the trial court’s judgment and render a take-
nothing judgment against the State. See Tex. R. App. P. 43.3.
/s/ Brian Walker
Brian Walker
Justice
Delivered: December 15, 2022
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