Saturday, October 23, 2010

Official Misconduct - Taking The Will Of The Voters At Will

By The Legendary
R.S. Gates
as told to
Jim Parks

People - about a hundred of them - were standing shoulder to shoulder in the 100-plus-degree heat of the meeting room of the West Waco Public Library when I asked the question of Criminal District Attorney John Segrest.

He was busy debating Abel Reyna, challenger for the post of DA. The moderator had thrown the program open to questions and she picked me to ask my question.

Citing an opinion written by John Segrest in 2006, I asked if he believed that the actions of the County Judge were unconstitutional. As he had taken an oath to uphold the constitution, how was his lack of intervention not a violation of his oath of office?

Though the question does not regard prosecuting the garden varieties of crime, it was the question for which I'd been seeking an answer since mid-November, 2006. Nevertheless, it has everything to do with the law – and crime - and the constitutional underpinnings of the Republic.

The people of Precinct 6 cast their votes and selected a new Justice of the Peace. The candidate they selected was myself, R.S. Gates.

Click on the pictures to enlarge:


Though the McLennan County Commissioners' Court canvassed the vote and certified the election, County Judge Jim Lewis refused to issue a certificate of election. I was denied the opportunity to serve out the term for which I was elected, which would have expired on December 31, 2010.


The position of Justice Court of Precinct 6 had been eliminated when the Court consolidated Constable Precinct 6 by combining it with Precinct 1 and Precinct 5.

Because it was a candidate forum, Abel Reyna answered the question first by saying the District Attorney is not granted oversight responsibility of other elected officials.

Mr. Segrest said he was asked for an opinion only and he fulfilled the requirements of the law by answering the question. He also declared, “You were elected.”

So, there it was. I had finally gotten my answer as to why he stood by and did nothing when the voters had spoken at the polls and selected me as their Justice of the Peace.

His opinion was that, under the law, the election of an official is conferred by the voters, not by the issuance of a certificate of election

While not the most relevant question of the night, the question was not irrelevant to the District Attorney contest, as explained by both candidates.

In fact, the voters of Texas went to the polls and amended Article V, §18(c) of the State Constitution to that effect in 1983, voiding a court case known as Tarrant County v. Ashmore, 635 S.W.2d 417, 420-21(Tex.1982.)

AshmoreIn that case, the Court held that the commissioners court has “received a grant of power from the people of the State and from the legislature to perform the action here complained of,” that is, to abolish offices and declare vacancies by redistricting after notice and a hearing.

Under the constitutional amendment, when a political subdivision is redistricted, the person elected to a term in that precinct or district is required to serve out the term for which he was elected because, “It is a public trust, created for the benefit of the state, and not for the benefit of the individual citizens thereof, and the prospective emoluments of a public office are not property in any sense.”


According to Mr. Segrest, “the individual cannot by his or her actions or decisions extinguish the right of the State and its people to have the benefits provided by an official...

“The voters of Texas could have just as easily rejected the 1983 amendment to that Article and left Ashmore the law of this State. But they didn't, and it isn't.”

In effect, the voters – my neighbors and friends – were told that the Constitution of the State of Texas does not matter. Their votes don't matter.

The will of the people had been ignored by the actions of one man, County Judge Jim Lewis.

But this conflict has a long and complicated history. We should begin at the beginning - and nowhere else.

In the 2006 primary, when Constable Ken Brown actively campaigned for the opponent of Jim Lewis, he was told by former Commissioner Wendell Crunk there would be consequences for his disloyalty.

Effective August 24, 2006, the McLennan County Commissioners' Court began a “money-saving” campaign to eliminate Precinct 6, which included Moody and Bruceville-Eddy areas. At the time, Precinct 6 Constable Brown won a race for City Council of Moody. He was serving as both Constable and City Councilman.

The County Judge asked Mr. Segrest to give an opinion on that matter and he said that under Art. XVI, §65 of the Texas Constitution, he had resigned from his duties as Constable. The Commissioners Court decided to appoint retired McLennan County Sheriff's Sergeant Jack Goodwin to serve in the position until December 31, 2008, when the term to which Mr. Brown had been elected would expire.

Mr. Segrest gave the opinion that, according to a 1999 Attorney General's opinion, “[a] Commissioners Court has no enforceable duty to fill a vacancy in the office of Constable.”

Mr. Segrest wrote, “Under these authorities it would seem that the vacancy created by Brown's resignation need never to have been filled by the Commissioners Court at all because Art. XVI, §17 provides that 'all officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified'...”

The Justice Department approved the redistricting order entered by the county commissioners in October, just before the general election.

There was an election; people went to the polls and voted; the ballots were counted; the Court canvassed the election results, but the Judge refused to issue a certificate of election. I filed a petition asking for the County Judge to be ordered to issue the certificate of election. The petition was denied by the 10th District Court of Appeals with one dissenting vote by Chief Justice Gray, who noted that “a candidate is elected by virtue of having received the majority of the votes cast, not by virtue of the prima facie evidence thereof in the form of a certificate of election delivered by the canvassing authority,” according to Tex. Election Code Annoted § 67.016(a),(c), (e) (Vernon 2003).


When I appealed to the Supreme Court of Texas, that tribunal also denied my petition and issued no written opinion. The complicated part is the elected official has no constitutional protection, so my attorney and I asked the wrong question of the appellate courts. We should have asked if the voters had a right to representation by their chosen elected official and not asked that a certificate of election be declared.

That is the story of how the voters of McLennan County Precinct 6 were disenfranchised by the actions of one man, the County Judge, while many others who were obligated by their oath of office to uphold the Texas Constitution stood by in silence and did nothing about it.

As the leader of one local grass roots organization said, “Who cares? It happened a long time ago.” That same organization proclaims support for constitutionally limited government.

Government had the power to invalidate elections prior to 1983. The people removed that power, not by violence or by prosecuting a law suit. They removed the authority through the democratic process of going to the polls and amending the Constitution of the State of Texas to take away that authority and bestow new authority to elect officials upon themselves. Jim Lewis ignored all this in violation of the amended Texas Constitution and against the legal advice of the District Attorney.

In 1983 the people cared enough about their rights to amend their State Constitution. On election day, November 2nd, 2010, we shall see if the constitution still matters in McLennan County.

Here is a footnote to the story of how the voters were denied their constitutional right to an election:

The Justice of the Peace who was defeated, Judge Raymond Britton, was effectively removed from office by the voters. Judge Jim Lewis created a new position for him. He is now the Jail Magistrate.

  • Jim Lewis told the public this was a cost-cutting move, but the move made Precinct 5 the largest precinct, one which extends from the southern to northern border of McLennan County. This necessitated adding a deputy constable for Precinct 5; his salary is more than that paid the original constable. The Jail magistrate position was quickly elevated to a higher salary than that previously paid the Justice of the Peace.
  • In 2009, the magistrate of the combined precinct retired. As the only elected Justice of the Peace residing in that precinct, I petitioned the court to appoint me. The Court appointed Pat Richardson who had no experience and had never run for or held elected office,

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  1. They removed a constable when they could have deferred to the voters.
    They gave voters elected officials they were not allowed to vote for.
    They prevented the person elected taking office.
    They refused to appoint the person elected by the people to fill the vacancy.
    They made a job for the guy who the people fired at the polls.
    Two down, one to go!

  2. I was talking to a friend about this and he said he was sympathetic that things were not handled properly by did not think something that happened 17 years ago was really relevant today. I suggested for perspective, he explain to his wife how womens right to vote became a reality 90 years ago and since it happened so long ago women really didn't need to vote any more. I hope he is ok since I have not heard from him since.