Judge: County Plays No Role In Legal Case of Commissioner

Goldenseal 1687806996

As elected officials and citizens await the trial that could remove Kerr County Commissioner (Pct. 1) Harley David Belew from office, the county judge has clarified the county’s position.

“I think it is important for our citizens to understand that the county plays no part in this legal case. It is outside our jurisdiction, and we have no legal authority or responsibility in the matter,” said Kerr County Judge Rob Kelly. “The county makes no judgment in this situation, legal or otherwise.”

He further explained that, while Texas Local Government Code, provides for any citizen to file for the removal of a county official from office for misconduct while holding office, it does not apply to misconduct prior to taking public office. State of Texas prosecutors, however, can file a quo warranto petition.

“‘Quo warranto’ translates from Latin as ‘by what authority’ does that person hold that public office?” Kelly said. It focuses on the qualifications a person has for holding public office. A final felony conviction disables a person from holding public office, unless that ability has been judicially restored or there is some other form of clemency, such as a pardon from the governor.

In this particular case, the quo warranto petition could have been filed by the county attorney, a district attorney or the state attorney general.

When this issue arose, the county attorney recused herself, citing a conflict of interest because she legally represents all the officials on the Kerr County Commissioners’ Court.

198th District Attorney Stephen Harpold initiated the investigation and subsequently filed the “quo warranto” petition questioning whether Belew has the rightful authority to hold his office.

During the initial hearing, the visiting judge, the Hon. Sid Harle, denied a plea in abatement filed by Belew’s defense attorney, Patrick O’Fiel. Thus, the case will continue and be heard, in all probability, in July.

Quo warranto trial and appellate proceedings are expedited under the Texas Rules of Civil Procedure and given top priority, Kelly explained.

If it is found that Belew has a final felony conviction that has not been judicially restored or pardoned, the quo warranto remedy is an order of removal from public office.

If that happens, then Belew will have the right to an expedited appeal to the 4th Court of Appeals in San Antonio, and possibly, on to the Texas Supreme Court.

Kelly speculated that a case of this nature should be completed within a few months and should be concluded before the end of the year.

“One other point I’d like to make clear is that the vetting process for candidates for county office is the responsibility of the respective political parties requesting their nominees be placed on the primary ballot in March and again on the general ballot in the November election. It is my understanding that this was included in the original investigation and no criminal charges were pursued,” Kelly added.

The following question-and-answer information is being provided to answer some common questions the public has had surrounding the “quo warranto” case:

What is a quo warranto proceeding?
A 'quo warranto' is a type of legal proceeding where the state petitions a court to determine under what authority an individual claims to hold office. If the court determines that the office holder is disqualified from holding that office, the only available remedies are removal, costs and a fine.

Does the Kerr County Commissioners’ Court have a role in a quo warranto proceeding?
No, the Kerr County commissioners and county judge do not participate in quo warranto proceedings.  The county judge does have authority to fill county commissioner vacancies. 

 Can the decision be appealed? How long could that take?
Yes. Quo warranto appeals are considered "accelerated" and have shorter deadlines than in other civil cases; a losing party must perfect an appeal within 20 days after the judgment is signed. The clerk has 10 days to file the record and the appellant has 20 days to file their brief. The appeals court may decide the case on the papers submitted to the trial court. The rules do not govern how long the court may consider the appeal before issuing an opinion. 

Does the elected individual continue to serve while the quo warranto proceeding is pending?
Yes. Unlike impeachment, there is no automatic suspension for an office holder pending final resolution.

What is the effect of a removed official's votes on any commissioners’ court orders?
The "de facto officer" doctrine means that, for public policy reasons, even though an individual was statutorily disqualified from holding their office, any official acts of that individual remain effective and not subject to attack based on their subsequent removal.

Is a removed official required to reimburse the county for their salary following removal?
Similar to the validity of their official acts, the de facto officer doctrine means that an office holder is still entitled to the salary and emoluments of that office just as much if they were a de jure officer. However, if the court does find in favor of the State, the court must order reimbursement for the costs of prosecuting the quo warranto, and the court may, but is not required to, fine the individual for unlawfully holding the office.