                        April 2, 1962

Xi. Frank J. Baughman
District Attornev               Cuinion No. WW-1299
47th District   "
Amarillo, Texas                 Re:     If Justices of the Peace
                                        and City Judges fail to
                                        report all traffic con-
                                        victions to the Department
                                        of Public Safety, what
                                        procedure should be
                                        followed in enforcing
                                        Section 152 of Article
                                        6701d, Vernon's Civil
                                        Statutes, and related
Dear Mr. Baughman:                      question.
          By letter you request our opinion on the following
subjects: What procedure should be followed in enforcing
Section 152 of Article @Old, Vernon's Civil Statutes, which
requires all justices of the peace and city judges to report
all traffic convictions to the Department of Public Safety;
and what state or county office is charged with responsibility
for enforcing this section?
          Section 152 of Article 670ld, Vernon's Civil Statutes,
in part,reads as follows:
           "(a) Every magistrate or judge of a
     court not of record and every clerk of a
     court of record shall keep a full record of
     every case In which a person is charged with
     any violation of this Act or of any other law
     regulating the operation of vehicles on high-
     ways.
          "(b) Within ten (10) days after con-
     viction of fiflforfelture of bail of a person
     upon a charge of violating any provision of
     thi.sAct or other law regulating the operation
     of vehicles on highways, every said magistrate
     of the court or clerk of the court of record
     in which such conviction was had or bail was
Mr. Frank J. Baughman, page 2 (WW-1299)


     forfeited shall pre are and immediately forward
     to the department PDepartment of Public Safetg
     an abstract of the record of said court covering
     the case in which said person was so convicted
     or forfeited bail, which abstract must be cer-
     tified by the person so required to prepare the
     same to be true and correct.

          "(c) Said abstract must be made upon a
     form furnished by the Department fif Public
     Safetg . . .
          II
           . . .
          "(e) The failure, refusal, or neglect of
     any such judicial officer to comply with any of
     the requirements of this Section shall constitute
     misconduct in office and shall be grounds for
     removal therefrom."
           Pursuant to Article 5970:
          "All district and county attorneys, . . .
     justice of the peace and all county officers
     now or hereafter existing by authority either
     of the Constitution or laws, may be removed
     from office by the judge of the district court
     for incompetency, official misconduct or
     becoming intoxicated by drinking intoxicating
     liquor, as a beverage, whether on duty or
     not; . . .'
          Article 5973 defines "official misconduct" with
reference to county officers as:
          1,   .any unlawful behavior in relation to
     the du&&   of his office, willful In its character,
     of any officer Intrusted in any manner with the
     administration of justice, or the execution of
     the law; and includes any willful or corrupt
     failure, refusal or neglect of an officer to
     perform any duty enjoined on him by law."
The word "willful" as used in this statute was defined in
Reeves v. State, 258 S.W. 577, 582.(civ. App. 1924, reversed
on other grounds, 267 S.W. 666), as follows:
.   -




    Mr. Frank J. Baughman, Page 3 (WW-1299)


              9,
               . . .The word 'willful' is used in the
         sense of a conscious and intentional failure
         or refusal to perform or keep inviolate any
         duty imposed upon the officer by law. . . ."
              By virtue of this statute and Section 152   (e) of
    Article 6701d, failure or refusal to report traffic   convictions
    required by Section 152 would constitute misconduct   of office
    and subject a justice of the peace to an action for   removal
    from office.
              Articles 5976-5986 relate the procedure to be
    utilized in a removal suit. This procedure for removal of
    elective county officials is exclusive. State v. Harney,
    164 S.W.2d 55 (Civ. App. 1942, error ref. w.o.m.).
              In State v. Starnes,246 S.W. 424 (Clv. App. 1922)
    the Court, referring to Article 5970, held that sLnce Article
    5977 provides for removal proceedings to be conducted in the
    name of the state, consent or assistance of the county or
    district attorney of the particular jurisdiction is required
    by virtue of the requirements of Section 21, Article V of the
    Constitution of Texas. The Court cited Staples v. State, 112
    Tex. 61, 245 S.W. 639 (1922), as controlling on this point and
    as supporting its opinion.
              Section 7, Article XV, Constitution of Texas, which
    declares that the Legislature shall provide for the trial and
    removal of all officers of the State, does not apply to muni-
    cipal officers. 30 Tex. Jur. Sec. 119, p. 223; see Bonner v.
    p;"er-;;;f, 104 Tex. 432, 138 S.W. 571 (lgll), affirming 13.f

              Grants of   power of removal from office are to be
    strtctly construed,   and whatever is not given in unequivocal
    terms is withheld.    This 1s especially true In the case of
    cities incorporated   by special Act of the Legislature. Diffle
    v. Cowan, 56 S.W.2d   1097 (Civ. App. 1932).
              Volume 30 of Texas Jurisprudence, pages 22X-233,
    discusses this problem in some detail. These pages stress
    that the particular law or charter provision of the city or
    town involved controls the removal of municipal officers.
    Since no particular municipality is mentioned in the request
    for opinion, no further opinion is here given as to what re-
    moval procedure, if any, may be utilized where a corporation
    court judge fails or refuses to provide the information required
    by Section 152 of Article 6701d.
Mr. Frank J. Baughman, page 4 (WW-1299)
                     SUMMARY

          Failure or refusal of a justice of the peace
          or corporation court judge to report traffic
          convictions, as required by Section 152 of
          Article 6701d, Vernon's Civil Statutes, con-
          stitutes misconduct in office. An action to
          remove a justice of the peace for misconduct
          in office may be brought pursuant to Article
          5970 et. seq., Vernon's Civil Statutes.
                               Very truly yours,
                               WILL WILSON
                               Attorney General of Texas


                          By Assistant
                              F...R~.
                                    Booth .~
FRB:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Henry Braswell
Bill Pool
Bob Shannon
Leon Pesek
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
