in the Interest of E.L.Y., a Child

In the INterest of ELY a Child IN THE TENTH COURT OF APPEALS No. 10-01-180-CV IN THE INTEREST OF E.L.Y., A CHILD From the 87th District Court Freestone County, Texas Trial Court # 99-226-B DISSENTING OPINION The rigors and expense of Anders and its progeny are for the appointment of counsel in criminal trials guaranteed by the Sixth Amendment and applied to the states through the Fourteenth Amendment. The federally recognized right to counsel in a termination of parental rights case is based only on the due process requirement of the Fourteenth Amendment. While the Sixth Amendment right to counsel applies to every critical stage of trial in any criminal proceeding in which incarceration is a possibility, the Fourteenth Amendment does not require the appointment of counsel in every proceeding in connection with the termination of parental rights. Because the rights being protected are different, and the basis of the protection is also different, a different analysis of what procedure is necessary to protect those rights should be made. When the judiciary compels the use of a particular procedure, it should be the minimum procedure necessary to protect the interest. We do not have the right to require the expenditure of taxpayer funds from county coffers to give elevated protections that we may like to have imposed, but are not required, to meet minimum due process requirements. We should not blindly adopt the same procedure, which the Supreme Court of the United States has determined is only a prophylactic framework in criminal cases, to be the only procedure acceptable in termination of parental rights cases. The problem in both types of cases is what should appointed counsel do when they have determined that there is no issue of arguable merit on which to base an appeal. Confronted with this question, the attorney is faced with the ethical issue that the litigant has no right to require the attorney to pursue a frivolous appeal which wastes judicial resources. I have contended that this court’s interpretation of Anders and its progeny requires more than is constitutionally required for criminal cases. For the same reason, and for the additional reason that this is not a criminal proceeding and therefore a different set of procedures may afford the required minimum constitutional protections, before I impose such stringent requirements, I would abate this cause for full briefing of the issue of what procedure should be adopted to protect the parent’s interest and expressly invite amicus briefs on the issue. Because the majority adopts excessive, and therefore unnecessarily costly, protections of this interest, I respectfully dissent. TOM GRAY Justice Dissenting opinion delivered and filed March 27, 2002 Publish in"> Ellis’ first issue asserts that both the Hewitt Municipal Court and the County Court at Law No. 2 “lack personam jurisdiction of the State.” He argues that the State should have been represented by the McLennan County Criminal District Attorney rather than by Hewitt’s city attorney. Ellis urges that Article V, section 21, of the Texas Constitution mandates that a county or district attorney represent the State in all criminal cases. Tex. Const. art. V, § 21. It provides: Sec. 21. A County Attorney, for counties in which there is not a resident Criminal District Attorney, shall be elected by the qualified voters of each county, who shall be commissioned by the Governor, and hold his office for the term of four years. In case of vacancy the Commissioners Court of the county shall have the power to appoint a County Attorney until the next general election. The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties; but if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature. The Legislature may provide for the election of District Attorneys in such districts, as may be deemed necessary, and make provision for the compensation of District Attorneys and County Attorneys. District Attorneys shall hold office for a term of four years, and until their successors have qualified. Id. (emphasis added). As a result of the authority given by the Constitution, the Legislature has provided: All prosecutions in a municipal court shall be conducted by the city attorney of such city, town or village, or by his deputy. The county attorney of the county in which said city, town or village is situated may, if he so desires, also represent the State in such prosecutions. In such cases, the said county attorney shall not be entitled to receive any fees or other compensation whatever for said services. The county attorney shall have no power to dismiss any prosecution pending in said court unless for reasons filed and approved by the judge. With the consent of the county attorney, appeals from municipal court to a county court, county court at law, or any appellate court may be prosecuted by the city attorney or his deputy. Tex. Code Crim. Proc. Ann. art. 45.03 (Vernon Supp. 1999). Section 44.255 of the Government Code provides: § 44.255 McLennan County (a) The criminal district attorney of McLennan County has all the powers, duties, and privileges in McLennan County that are conferred by law on county and district attorneys. (b) The criminal district attorney shall collect the fees provided by law for similar services rendered by a district or county attorney. Tex. Gov't Code Ann. § 44.255 (Vernon 1988). Thus, the legislature has specified that with the consent of the Criminal District Attorney of McLennan County, a city attorney or assistant may prosecute appeals from municipal courts in a County Court at Law. Ellis does not deny that article 45.03 provides authority for the city attorney to prosecute. Rather, he urges that it was a violation of separation of powers for the legislature to enact article 45.03 as it encroaches, he says, on the Criminal District Attorney’s power as outlined in section 44.255 of the government code. Suggesting that they conflict, Ellis urges that section 44.255 must prevail over article 45.03. We disagree that they conflict and choose, as we must, to read them together. See Ex parte Harrell, 542 S.W.2d 169, 171-72 (Tex. Crim. App. 1976). Article 45.03 gives the county attorney the authority to delegate the power to prosecute appealed municipal-court cases. Section 44.255 simply gives that same power to the McLennan County Criminal District Attorney. This question was considered by the Fort Worth Court in Naff v. State, 946 S.W.2d 529, 532 (Tex. App.—Fort Worth 1997, no pet.). Naff complained that he was denied due process because the city attorney or his deputy represented the State in its prosecution of his complaints. The Fort Worth Court held that, when a city attorney or his deputy represents the State in a municipal court proceeding, it does not violate article V, section 21 of the Texas Constitution and, thus, does not violate a defendant's due process rights. Ellis characterizes Naff as “bad case law begging to be overturned.” He urges that the constitution only allows the legislature to delegate authority between a county and a district attorney when a county has both. Although the section contemplates counties in which there is no district attorney, he asserts that it also applies when there is no county attorney. Thus, he says, the legislature is without authority to regulate the duties in these counties. We disagree. If we were to read Section 21 of article V as Ellis suggests, then article 45.03 would be constitutional as to county attorneys in counties with a district attorney but unconstitutional as to those without a district attorney. We will follow the holding in Naff. A similar issue has been considered by the Eastland Court of Appeals. Thornton v. State, 778 S.W.2d 149, 150-51 (Tex. App.—Eastland 1989, no pet.). Like McLennan County, there is no constitutional "County Attorney" in Taylor County, where Thornton was tried. The Eastland Court held that a criminal district attorney (while performing the duties of county attorney) may consent, pursuant to Article 45.03, to the city attorney or his deputy prosecuting an appeal from a municipal court to a county court at law. We agree. We do not find article 45.03 to be unconstitutional. The Criminal District Attorney for McLennan County may delegate the authority to prosecute in municipal court and all appeals therefrom. Thus, issue one is overruled. FORUM In his second issue, Ellis argues that the original court was an “improperly set forum.” He alleges that the City of Hewitt controls both the municipal prosecutor and the municipal judge and “has transformed a State court into the city council’s private revenue center.” He asserts that the municipal court has been “transformed into a forum where all officers are illegally controlled by the city council.” This appeal comes to us after trial de novo in the County Court at Law No. 2. “In all appeals to a county court from justice courts and municipal courts other than municipal courts of record, the trial shall be de novo in the trial in the county court, the same as if the prosecution had been originally commenced in that court. An appeal to the county court from a municipal court of record may be based only on errors reflected in the record.” Tex. Code Crim. Proc. Ann. art. 44.17 (Vernon Supp. 1999). The Hewitt Municipal Court is not a court of record. The County Court at Law of McLennan County is a court of record. Thus, the “record” which might show “error” is that of the County Court at Law. See id. A trial de novo literally is a trial from the beginning as if no former trial had been had. State v. Campbell, 820 S.W.2d 44, 45 (Tex. App.—Austin 1991, pet. ref’d) (citing Ex parte Jones, 128 Tex. Crim. 380, 81 S.W.2d 706, 707 (1935)). The accused stood before the County Court at Law as if the prosecution began in that court, unaffected by what might have happened in the justice court. Id. (citing Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984); Jones, 81 S.W.2d 706; Martoni v. State, 74 Tex. Crim. 64, 166 S.W. 1169 (1914)). Therefore, any complaints about the original trial are not presented for our review. We overrule issue two. CONSTITUTIONALITY OF ARTICLE 45.06 Ellis' third issue asserts that the Hewitt City Court is “subverted to produce City Revenue.” He alleges that “it is a violation of due process to be forced to try a cause in a court of justice literally subverted to produce convictions and illegal revenue to cities and city attorneys.” The Legislature has provided for proceedings in municipal courts. Tex. Code Crim. Proc. Ann. arts. 45.01-.56 (Vernon 1979 & Supp. 1999). Incorporated cities may pass ordinances and collect fines imposed by municipal courts. Id. art. 45.06. It is this article of which Ellis complains. He urges that it is in violation of article III, section 51 of the Texas Constitution, which provides: § 51. Grants of public money prohibited; exceptions Sec. 51. The Legislature shall have no power to make any grant or authorize the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever; provided, however, the Legislature may grant aid to indigent and disabled Confederate soldiers and sailors under such regulations and limitations as may be deemed by the Legislature as expedient, and to their widows in indigent circumstances under such regulations and limitations as may be deemed by the Legislature as expedient; provided that the provisions of this Section shall not be construed so as to prevent the grant of aid in cases of public calamity. Tex. Const. art. III, § 51. The purpose of the constitutional provision is to prevent the gratuitous application of public funds to any individual. Graves v. Morales, 923 S.W.2d 754, 757 (Tex. App.—Austin 1996, writ denied) (citing Edgewood Indep. Sch. Dist. v. Meno, 893 S.W.2d 450, 473 (Tex. 1995)); see also Harris County v. Hermann Hosp., 943 S.W.2d 547, 550 (Tex. App.—Eastland 1997, writ granted, w.r.m.). But the Constitution does not invalidate an expenditure which incidentally benefits a private interest if it is made for the direct accomplishment of a legitimate public purpose. Id. (citing Brazoria County v. Perry, 537 S.W.2d 89, 90 (Tex. Civ. App.—Houston [1st Dist.] 1976, no writ)). "A transfer of funds for a public purpose, with a clear public benefit received in return, does not amount to a lending of credit or grant of public funds in violation of article III, sections 51 and 52." Id. (citing Edgewood, 893 S.W.2d at 473-74). Thus, the collection of fines and the retention of funds by the city does not violate article III, section 51 of the Texas Constitution. Article XI, section 5, of the Constitution provides that “[c]ities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters.” Tex. Const. art. XI, § 5. Thus, the Constitution allows cities with populations over 5,000 to draw their own charters and include anything in those charters not inconsistent with the general laws or the constitution. Miller v. Uvalde Co., 20 S.W.2d 403 (Tex. Civ. App.—San Antonio 1929, writ dism’d, w.o.j.). These are known as “home-rule” cities. Chapter nine of the local government code applies to the adoption or amendment of a municipal charter as authorized by article XI, section 5. Tex. Loc. Gov’t Code Ann. §§ 9.001-9.008 (Vernon 1999). The city of Hewitt is a home-rule city. Thus, because the constitution allows the city of Hewitt to regulate itself and because the collection of fines is not in violation of the Constitution, issue three is overruled. SIMULTANEOUS REPRESENTATION Ellis' final issue asserts that Kathleen Dow, acting as an assistant city prosecutor for Hewitt and as the Municipal Judge of Bellmead, is in violation of the Texas Constitution. Tex. Const. art. XVI, § 40. Article XVI, section 40, which prohibits certain persons from holding more than one civil office at a time, provides: No person shall hold or exercise at the same time, more than one civil office of emolument, except that of Justice of the Peace, County Commissioner, Notary Public and Postmaster, Officer of the National Guard, the National Guard Reserve, and the Officers Reserve Corps of the United States and enlisted men of the National Guard, the National Guard Reserve, and the Organized Reserves of the United States, and retired officers of the United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and retired warrant officers, and retired enlisted men of the United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and the officers and directors of soil and water conservation districts, unless otherwise specially provided herein. . . . State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas and who are not State officers, shall not be barred from serving as members of the governing bodies of school districts, cities, towns, or other local governmental districts; provided, however, that such State employees or other individuals shall receive no salary for serving as members of such governing bodies. It is further provided that a nonelective State officer may hold other nonelective offices under the State or the United States, if the other office is of benefit to the State of Texas or is required by the State or Federal law, and there is no conflict with the original office for which he receives salary or compensation. No member of the Legislature of this State may hold any other office or position of profit under this State, or the United States, except as a notary public if qualified by law. Id. (emphasis added). Dow is the municipal judge for the city of Bellmead and the city prosecutor for Hewitt. A municipal judge, whether elected or appointed, full or part-time, holds a “public office.” Op. Tex. Att'y Gen. No. DM-428 (1996). However, there is a question about whether that office is a “civil office of emolument.” Section 574.001 of the government code provides that a person “may hold the office of municipal judge for more than one municipality at the same time if each office is filled by appointment.” Tex. Gov’t Code Ann. § 574.001(b) (Vernon Supp. 1999). Thus, the legislature considers the appointed position of municipal judge not to be a civil office of emolument. In 1997, the legislature proposed a constitutional amendment to “allow a person who holds the office of municipal court judge to hold at the same time more than one civil office for which the person receives compensation.” Analyses of Proposed Constitutional Amendments, p.9, Texas Legislative Council, Sept. 1997. That amendment failed. However, because the right to hold the office of municipal judge for more than one municipality at the same time if each is filled by appointment already existed, the failure of the amendment did not affect that right. Id.; Tex. Gov’t Code Ann. § 574.001(b). The amendment would have expanded the right to include offices filled by election. Analysis of Proposed Constitutional Amendments, p.9, Texas Legislative Council, Sept. 1997. Because the Bellmead Municipal Court Judge is a position filled by appointment, it is not a civil office of emolument. We next turn to the question of whether the position of city prosecutor is a civil office of emolument. In Powell v. State, the Court of Criminal Appeals considered whether the position of assistant district attorney is a civil office of emolument. Powell v. State, 898 S.W.2d 821, 824-25 (Tex. Crim. App. 1994). Because an assistant district attorney acts subject to the control and supervision of the district attorney, he is merely a public employee and not an “officer.” Id.; see also Op. Tex. Att'y Gen. No. DM-428 (1996) (citing State ex rel., Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)). The position of city prosecutor is similar in that it is not an elected position and the city prosecutor acts at the direction of the city charter. In this appeal, the prosecutor acted with the consent of McLennan County’s Criminal District Attorney. Tex. Code Crim. Proc. Ann. art. 45.03; Thornton, 778 S.W.2d at 150-51. Thus, the office of city prosecutor is not a “civil office of emolument.” Because neither position is a civil office of emolument, Dow is not acting in violation of the Constitution. See Art. XVI, § 40. Issue four is overruled. Having overruled all issues, we affirm the judgment. BILL VANCE Justice Before Chief Justice Davis, Justice Vance, and Justice Gray Affirmed Opinion delivered and filed August 18, 1999 Do not publish