Petition for Writ of Mandamus is DENIED; Opinion Filed February 13, 2013.




                                              In The
                                    Qtnurt App tahi
                                              tif
                        3Fifth t1ttrirt nf !Irxa at t1aL1w
                                      No. 05-13-00022-CV


                        IN RE DERICK DEWAYNE EVANS, Relator



                      On Appeal    fromthe 363rd Judicial District CoLirt
                                     Dallas County, Texas
                             Trial Court Cause No. F-i0-01 193-’


                                          OPINION
                         Before Justices Moseley, Francis, and Fillmore
                                  Opinion By Justice Moseley

       Derick Dewayne Evans seeks a writ of mandamus ordering the trial court to vacate two

orders whereby it suspended him from office during the course of his appeal from a criminal

conviction and appointed another person to perform his duties. We deny mandamus relief

       Evans served as a Dallas County constable until a jury convicted him of a felony offense.

Upon his conviction, the trial judge rendered judgment removing Evans from office pursuant to

section 87.03 1 of the Texas Local Government Code. After Evans filed a notice of appeal of his

criminal conviction, the State petitioned the trial court to find that suspending Evans while his

criminal appeal was pending was in the public interest. On August 6, 2012, the trial court held an

evidentiary hearing at which the State re-offered all the evidence admitted at the guilt/innocence

stage of Evans’s criminal trial. The evidence was admitted without objection. After considering the
evidence presented. counsels aruments. the Texas Local Government Code, and applicable

statutes, the trial court issued an order stating   it   was in the public interest to suspend Evans pending

the appeal of his criminal conviction (the August 6 Order). On August I 3, 2012, the trial court

issued an order appointing Cleophus R. Steele, Jr. to perform the duties of Evans’s former office for

the remainder of the term or until Evans is returned to office following a successful appeal of his

conviction (the August 13 Order). The August 13 Order states a bond “in the amount of $5,000”

shall he posted “in compliance with Local Government Code                 § $7.() 17.” Evans challenges the
August 6 Order and the August 1 3 Order.

        Mandamus is appropriate if Evans establishes a clear abuse of discretion for which there is

no adequate remedy by appeal.           in re Odysse’ Healthcare, Inc., 310 S.W.3d 419, 422 (Tex.

2010) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly

analyze or apply the law. in rt’ Cerberus Capital Mgnn., L.P., 164 S.W.3d 379, 382 (Tex. 2005)

(orig. proceeding).

                                             AuGIsT 6 ORDER

        Evans concedes the trial court had the power to find it is in the “public interest” to suspend

him during the pendency of his appeal. See TEx. Loc. Gov’T CODE               § 87.032 (West Supp. 2012).
However, Evans argues the trial     court   abused its discretion by failing to “specify the basis for the

finding” the suspension is in the “public interest.” Section 87.032 states:

        If the officer appeals the judgment, the appeal supersedes the order of removal unless
        the court that renders the judgment finds that it is in the public interest to suspend the
        officer pending the appeal. If the court finds that the public interest requires
        suspension, the court shall suspend the officer as provided by this chapter.

Id.. Because the statute does not require the trial court to state its basis for determining that “it is in
the public interest to suspend” Evans pending his appeal, we decline to conclude the trial                                                 court


abused its discretion by failing to do so.

                                                           AuGusT 13 ORDER

               Once the trial court found the public interest required Evans’s suspension. the court was

required to suspend Evans “as provided by this chapter.” TEx. Loc. Gov’T CoDE                                            § 87.032. Section
87.017(b)’ addresses suspension of an officer and temporary appointments; it states: “The judge may

not suspend the officer until the person appointed to serve executes a bond, with at least two good

and sufficient sureties, in an amount fixed by the judge and conditioned as required by the judge.”

Id.   § 87.017(b) (West 2008). Evans complains the trial court did not comply with section 87.017
because the August 13 Order did not require Steele to execute the bond before Evans’s suspension

was effective, did not require the bond be backed by two or more good and sufficient sureties, set

the bond at an “arbitrary” amount of $5,000, and did not impose any conditioning language on the

bond.

           By the time Evans filed this petition for mandamus, the bond was filed; thus, there is nothing

for us to consider with respect to Evans’s first complaint. Further, because the August 13 Order

states the bond must be posted “in compliance with Local Government Code                                               § 87.0 17”—---whieh
requires it be executed with two good and sufficient sureties—we cannot say the trial court abused

its discretion by failing to specifically recite the requirement of section 87.017 that a bond be

executed with at least two good and sufficient sureties. As to Evans’s latter two complaints,

asserting the amount of the bond is “arbitrary” and the bond lacks adequate conditioning language,


      Chapter 87 diiierentiates between civil and criminal removal proceedings. hi te Bazan. 251 S.W.3d 39. 42 ([cx. 2008). Chapter 87 addresses
civil rcmovals by petition and trial in subchapter B. Id.: TEX. Loc. GovT CODE         87.01 i87.0l9 (West 2008 & Supp. 2012). Subchapter C
 ‘connects its removal proceeding directly to the criminal prosecution. In ic Bacon. 251 S.W.3d at 42 (citing [EX. Loc. GOV’T CODE 87.03 1-
87.032). Although section 87.0 (7 falls under subchapter B. section 87.032 (which falls under subchapter C) directs the trial court to ‘suspend the
officer as pros dcd 1w this cliap!ui. ‘TEx. Loc GovT CoDE 87.032 (emphasis added). The relevant provision about suspensions in chapter 87
is section 87.017.




                                                                      —3—
the statute allows the trial court to lix the amount of the bond and does not require the trial court

impose a condition that the bond he payable to Evans if his conviction is reversed, as Evans urges

us to conclude. See id.   § $7Ol 7. We decline to conclude the trial court abused its discretion based
on the complaints Evans makes.

       We deny the petition for writ of mandamus.
                                                                                    F

                                                                   /



                                                                                1
                                                        JIM MflSELEY
                                                                    /         1:v
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