Ex Parte King

Citations

• 35 Tex. 657

Syllabus

<p>1. The statutory requirements as to service of citations in error are not applicable when an ex parte order of a district judge, made of his own motion, and removing a district clerk from office, is brought to this court by writ of error. In such a case the writ of error was necessary to invoke the jurisdiction and the supervisory powers of the Supreme Court; but no service of citation in error upon the district attorney was necessary.</p> <p>3. Though the Constitution of 1869 confers power upon the district judges to remove sheriffs and district clerks from office, for cause spread upon the minutes of the court, yet these provisions do not invest a district judge with an arbitrary power to remove such officers for any cause which he may see proper to spread upon the minutes of his court. The officer cannot he rightfully removed unless he is guilty of some breach of the trust implied by law in the tenure of his office. Only such incompetency, nonfeasance or misfeasance, corruption or partiality in office, as would amount to a forfeiture of the right to enjoy it, can rightfully call into exorcise the judge’s power to remove.</p> <p>3. Since the adoption of the common law, in the year 1840, the Constitutions of Texas have been framed with reference to it, and by its ...principles and modes of procedure their interpretation has been and must he controlled; and hence, when the present Constitution clothed the district judges with the power to remove sheriffs and district clerks, it was intended that such power should he exercised in obedience to the rules of the common law. The proper mode of procedure, therefore, is to enter a rule nisi, requiring the officer to show cause why he should not he removed from his office. This rule nisi may he entered by the judge of his own motion, or upon the relation of another; hut in every case the cause of removal must be set forth in plain and intelligible words, and with issuable allegations affording the inculpated officer an o