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affirming trial court's dismissal of plaintiff's petition for writ of quo warranto alleging that judge who presided over his suit should be removed because he had not signed oath of office because such action may only be brought by attorney general or county or district attorney
Summary of this case from Martin v. PerkinsOpinion
No. 05-16-00578-CV
05-10-2017
J.B. GAINES, Appellant v. HONORABLE JUDGE JUAN JASSO, Appellee
On Appeal from the 193rd Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-16-01981
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Boatright
Appellee Juan Jasso is Justice of the Peace in the Justice Court, Precinct 5, Place 2, of Dallas County. He presided over a suit filed by appellant J.B. Gaines alleging legal malpractice against an attorney. Gaines subsequently filed an application for writ of quo warranto in district court, alleging that Judge Jasso should be removed from office because he had not signed the oath of office required by article XVI, section 1 of the Texas Constitution.
The caption on Gaines's notice of appeal names the appellant as "Sovereign J.B. Gaines, Vice President One Love Unity Among Brother & Sister et al." There is nothing in the record to indicate, however, that there are additional appellants or that Gaines is not filing the appeal in his individual capacity.
The record does not reveal the disposition of this suit, and Gaines does not complain of any specific ruling or action by Judge Jasso in it. Gaines's appellate brief indicates that Judge Jasso may have withdrawn voluntarily from the case after Gaines requested a pretrial conference.
The Texas Attorney General filed an "Advisory to the Court" and moved for dismissal of the case. The trial court granted the motion and rendered judgment dismissing the case. Gaines now appeals, contending the trial court erred by dismissing the case rather than actually litigating the constitutional questions Gaines presented.
"An action in the nature of quo warranto is available if: (1) a person usurps, intrudes into, or unlawfully holds or executes a franchise or an office . . . ." TEX. CIV. PRAC. & REM. CODE ANN. § 66.001(1) (West 2008). "If grounds for the remedy exist, the attorney general or the county or district attorney of the proper county may petition the district court . . . for leave to file an information in the nature of quo warranto." Id. § 66.002(a). "The attorney general or county or district attorney may file the petition on his own motion or at the request of an individual relator." Id. § 66.002(c). Thus, only the attorney general or a county or district attorney of the proper county may file a petition for writ of quo warranto. Reed v. Prince, 194 S.W.3d 101, 105 (Tex. App.—Texarkana 2006, pet. denied).
There is no evidence that Gaines is the attorney general or a county or district attorney. Nor is there evidence that the application for writ of quo warranto at issue here was filed by the attorney general or a county or district attorney at Gaines's request. Therefore, he was not authorized to file the petition for writ of quo warranto.
We affirm the trial court's judgment of dismissal.
/Jason Boatright/
JASON BOATRIGHT
JUSTICE 160578F.P05
JUDGMENT
On Appeal from the 193rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-16-01981.
Opinion delivered by Justice Boatright; Justices Fillmore and Whitehill participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee the Honorable Judge Juan Jasso, recover his costs of this appeal from appellant J.B. Gaines. Judgment entered this 10th day of May, 2017.