I was set to try a removal case on Monday. Now I'm not. During pretrials, the defendant (a constable) filed a plea to the jurisdiction claiming improper service and sovereign immunity. That's right. Sovereign immunity. But that's not the maddening part. The trial judge denied the plea. The constable's lawyer then announced that, since the removal suit proceeds against him in his official capacity, he will be taking an interlocutory appeal under sec. 51.014(a)(8) of the Civil Practice and Remedies Code. Consequently, says the constable (through his mouthpiece), trial is stayed under subsection (b). The judge agreed.

In the past, I have brought an interlocutory appeal of the denial of a plea to the jurisdiction in an official-capacity claim against a county officer (see Potter County Att'y's Office v. Stars & Stripes Sweepstakes, L.L.C., 121 S.W.3d 460, 464-65 (Tex. App.--Amarillo 2003, no pet.)). But that rested on the notion that the claim was against the officer purely in an official capacity, which is a claim against the county.

Thus, my question: Do you think a removal suit against a county officer proceeds against the officer in his/her official capacity or his/her individual capacity? (If it's the latter, of course, a motion to dismiss the appeal for want of jurisdiction will be in order). For what it's worth, I tend to think it's the latter (since it isn't a suit to compel the county or any of its component offices to do anything), but there is no case law directly on point that I have been able to locate so far.

Did the judge temporarily remove the public official as part of the pretrial stuff? That often solves everything. I am guessing not since the constable is looking for ways to delay.

Before I research it here a few off the cuff remarks. If an office holder had an election contest our office would not be representing him and I think there are at least AG opinions to the effect that such a contest is not a suit in an official capacity. Only by analogy does an election contest compare to a removal suit. On a more basic level this is a suit to remove a person from an office not a suit against the office. I realize that elected individuals often identify themselves too closely with the office but this situation is certainly in excess of the norm. If I recall correctly this removal suit is failing to qualify under TCLEOSE standards correct?

That, and a few other minor miscalculations ... like witness tampering in a felony case against his brother ... and initiating a 100-mph-plus pursuit of a suspect through a residential area in his personal (no lights or siren) car because he saw the suspect commit the imminently dangerous offense of burglary of a coin-operated machine ... and not working for over 2 1/2 years.

May he claim sovereign immunity? I thought he was limited to official immunity. Maybe I have my immunities wrong again. I think Cornyn explains it in Chambers.

So this opinion points out that the county could not pay for an attorney for an elected official whose interest in that criminal case was purely personal. There are also some of out of state analogous authority.

Scott - As I recall, removal challenges the office holder's qualifications to hold the elected office, so it would seem to me that this is a suit against the official in his/her individual capacity. It has nothing to do with the "office" being held.

We just got through removing two of our Constables, although they agreed to leave voluntarily. I will look through my research and see if I have anything that might help. Good luck.

I apparently will filing a couple of removal suits against constables in the near future. I would appreciate any forms folks may have used to remove elected officials in their jurisdictions.

Russell,

I sent you a whole mess of forms and stuff.

A.D.