              OFFICE   OF THE   A-ITORNEY    GENERAL   OF T’EXAS
                                    AUSTIN
~c.yllcll
,namn*manIL


        son. see Balloy xumphrsy
        COUlty AttOrIl@~
        Crookatt, Tt3XR8

        Deai'SITI




        place of the c'epvfetsdman$ PO? desire our optnlon as to
        whether the aontiction or tbe trustee resulted in his re-
                                          be Oould continue to
                                                should be employed

                    srt&b   5908, Revised Cl011 Statutes, reada an

                  ~+~L~'convlctlons by a petit jury of any
              chti3tjwfrieers for any felony,    or ror any mls-
              aedqor   involving of ricsiaf. mlsoonduOt , shall
                da---ii.mtmte
              work               r~~0val rr0m 0rriae or the
              ofrloer 80 convicted. Each euoh jud@mnt of
              conviction ehnll embody within It an orner re-
              moving such 0frioar.”
                  The aborn statute speaks only Of OonYlOtlo&3 by
        petit jurlos, perhaps bsoause when 5.tbeoam law them
Hoa* Joe Bailey Humphrey, pago 3.


oould be no oonviotlon of a rmlony rxoept upon a &r   trid,
~~rtlolrloa, C. C. p., glring to the defendant the rL ht to
walr* a jury in a felony oas8 lees than oapltal, upon a plea
of guilty and with the oowent or the Distriot Attorney and
of the Court wan not snaoted until 1931., we are wro in-
olined to thk,   howevef, that in pasring Arti      3963, with
itr requirement or a jury oonriotlon, the Leglr&turr had In
mind 88otlon U4, oi ArtlOlt. 3, of the State Constitution,
seadine 80 r0uom:

          *Couiitymag88, oounty attorneys, olrrks
     or the Dietriot and countyCourts, juetloee or
     the peaoe, oonstables, and other county oifl-
     oers, may be removed by the Judges or the Dir-
     trlot Courts ror inoanpetuioy,  0rfi0id da-
     oonduot, habitual cImnkenno8s, or other oausrs
     defined by law, upon the oauae thereror be-
     set forth in wrftlng and the finding   or its
     truth by a jury.”
              From the opinion of the Supreme Court in Grimes vs.
‘l’hoclfi8, 104 S.Yi. 1058, lo& Tex. 36, we quotes
            “It is contended that right to the ofrloe
     is seoured by the Constitution    and that it o’an
     only be taken away, elthcr temporarily    or per-
     manently, by removal of the incumbent by the
     distrlot   judge, for oauses set rorth in writing
     and found by a jury to be true us prosoribed     by
     section   84.
            “It is well established    by tho authorities
     that under a Lonstitutlon     like this there 18 no
     power in the Legislature     to authorize  a reno~6.l
     so provided ror otherwise then in the presorlbed
     mode, and if a temporary suspension 0r the of-
     ricer,    during the psndenoy or valid proooedln@
     to remove and as t;n incident     of such procoedlngs
     were equivalent to a removal, the argument would
     be complete.     Ke thus state the oharaoter Or the
     suspension as temporary and Incidental      to the
     trial   or a legal and valid proaeedlng to remove
     beoause that is all that exists in this oase,
     as well as for the reason thet we do not doubt
     that there might be attempts at suspensions 8s
     well as at removals that would violate      the COE-
     stitutlon.’
.
                                                                     - --” 74




              m state OX rd.    Fiah Vs. O'bWaXS, COtUlty Judge
    et al, 74 f3.N. (2) 146, aotlon was to remove a county judge
    iSa the fOUS OOUUty0013~&3dOt~6    Ot DiPrmitCOIi$Lty. ThO
    trial wae to a jury But the court lnatructrd a rrrdiot ror
    the defendants. Ymnn the o$inlon of Judge Smith o? the San
    Antonio Court of Civil qppsalr we quote:
                  @Tn his firat, ~eOond, third, and fourth
         proposltlons relator oontenda that under the
         constitutional provision here lmoked a jury
         alone aa~ pas8 upon the lseue or whether an
         0frioial     is guilty or lnnooent of improper aota
         oharged against him in a ease of this oharao-
         ter, and that therefore the trial Judge erred
         in directing a veralot ior appellees, The prop-
         osition 1s correot, In a general eonse, in that
         no offlolal may be rkmored from orrice ror sots
         or inconptsncy      or mieoonduct unless ma until
         he has been found guilty or such &iota,by a
         jury of hla peers; a district Juilgehas no
         power to remove an olflalal in the absenos of
         such jury flndix..R
                x defendant ln a felony case dotis not have the un-
    ~unllfled right to waive a jury. Eiecan do 80 in c;ses less
    than oopltal with the consent and upprovo]. of the distrlot
    uttorney ana district    J’ud~e. klere such consent aAd z?pro-
    vu1 is given and as CI conooquenco thereor no convlotlon      by
    a petit jury is hnd, we are constrained      to hold that .rtlole
    5S68 does not apply.     our opinion follows that the trustee
    in i;uestlon WCSnot removed by this conviction      and continues
    to hold his oftloo.     our o~lnion  x0. o-1521 is Umitea ao-
    COraiIUjly~
                                              pours   rsry   truly
