Texas' Scolaro Case

Texas Case Law
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SCOLARO v. STATE EX REL. JONES, 1 S.W.3d 749 (Tex.App.-Am. [7th Dist.] 1999)
1 S.W.3d 749
Susan J. SCOLARO, Appellant v. The STATE of Texas, ex rel. Bob JONES,
Appellee.
Nos. 07-99-0064-CV, 07-99-0100-CV.
Court of Appeals of Texas, Seventh District at Amarillo, Panel B.
August 5, 1999.

Appeal from the 72nd District Court of Lubbock County; Nos.
98-503, 598-A and B; Honorable Bill McCoy, Judge.
Page 750
[EDITORS' NOTE: THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE
NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT
DISPLAYED.]
Page 751
Craig, Terrill & Hale, (Eric G. Walraven and H. Grady Terrill),
Lubbock, for appellant.
Ralph H. Brock, Attorney at Law, Lubbock, John W. Smith,
District Attorney Pro Tem, for appellee.
Before BOYD, C.J., and QUINN and JOHNSON, JJ.
JOHN T. BOYD, Chief Justice.
This is an appeal from a quo warranto case in which appellant
Susan J. Scolaro (Scolaro) challenges her removal as judge of the
County Court at Law No. 1 of Lubbock County by appellee the State
of Texas, ex rel. Bob Jones (the State). In seeking Scolaro's
removal from office, the State alleges that she did not meet the
statutory requirements to serve in that capacity on November 3,
1998, the date of the general election. In response to competing
motions, the trial court granted partial summary judgment for the
State removing Scolaro from office. By doing so, he inferentially
overruled Scolaro's motion for summary judgment. This order was
severed from the remainder of the proceeding, making it final and
appealable. Scolaro brought an appeal from that judgment and it
is before us as case number 07-99-0064-CV.
The remaining issues concerning imposition of costs and a fine
were tried March 17, 1999. As a result of that trial, the court
imposed a fine of $2,500 on Scolaro and assessed costs against
her. She has also taken an appeal from that judgment and it is
before us in case number 07-99-0100-CV. The parties have briefed
and argued both appeals together. We will likewise combine our
consideration and disposition of both appeals.
This dispute has been before this court before. In In re Jones,
978 S.W.2d 648 (Tex.App. — Amarillo 1998) (orig.
proceeding), relator Bob Jones, a write-in candidate for the
office, sought to have this court issue a writ of mandamus
commanding the Chairman of the Lubbock County Republican Party to
administratively declare Scolaro ineligible to run in the
November 3, 1998 general election. The challenge was based on
Jones's claim that Scolaro did not satisfy the practice of law
requirement imposed by Section 25.0014 GOV'T (3) of the Government
Code. That statute requires that the judge of a county court at
law
be a licensed attorney in this state who has practiced
law or served as a judge of a court in this state, or
both combined, for the four years preceding election
or appointment, unless otherwise provided for by law.
Tex. Govt. Code Ann. § 25.0014 GOV'T (3) (Vernon Supp. 1999). It
was undisputed that Scolaro was admitted to the practice of law
in Texas in November 1984 and that she voluntarily assumed
inactive status on June 14, 1989, pursuant to Section 81.052 GOV'T of
the Government Code. The question before us in that proceeding
was whether Jones conclusively established that Scolaro did not
meet the Government Code practice requirement.
Jones relied on the language of the statute and records from
the Texas Supreme
Page 752
Court and State Bar of Texas that Scolaro's status did not change
to active until November 18, 1994, making her 15 days short of the
statute's practice requirement. In response, and assertedly unable
to locate documentation supporting her position, Scolaro primarily
relied on her own affidavit that she mailed a request for
reinstatement and payment by check on August 22, 1994, and that she
resumed the practice of law on September 1, 1994.
In denying Jones's petition we concluded:
.
. . the only requirements under § 81.052 (d) for
the change in membership from inactive to active status
are 1) the inactive member's application and 2) the
payment of required fees. Because the statute does not
provide that restoration to active membership is subject
to any discretion or determination by the clerk or the
bar, we hold that when an inactive member sends an
application for a change from inactive membership
status and pays the required fees, that change in
membership is effective, ipso facto, upon receipt of
the application and payment to the bar. Because the bar
records and supreme court records do not reflect when
the application for membership change and payment of
fees were received, we may consider, for the purposes
of the proceeding before us, the member's affidavit
that she mailed the request and sent the required fees
to the State Bar. Thus, a question of fact exists
regarding the date the application and payment of fees
was received, which precludes the granting of mandamus
relief Additionally, we have noted that attached to the
clerk's letter is a payment record which shows that on
November 18, 1994, Scolaro was `reinstated to the
active rolls for `94,' which relator acknowledges, is a
part of the official record. We judicially note that
the State Bar fiscal year begins on June 1. Therefore,
the clerk's statement that Scolaro `was reinstated to
the active rolls on November 18, 1994,' is not
conclusive as to the effective date of the
reinstatement. Consequently, [the party chairman's]
failure to administratively declare Scolaro ineligible
was not a failure to perform a ministerial duty and
mandamus will not issue.
Id. at 653-54. In order to remove any question whether our
holding in Jones on the requirements for a change in bar
membership status from inactive to active is part of the "law of
the case," we reiterate and expressly adopt that holding. See
Benham v. Benham, 726 S.W.2d 618 (Tex.App. — Amarillo 1987,
writ ref'd n.r.e.) (finding of venue fact in venue proceeding
does not become the law of the case or bind the court or jury in
a subsequent trial on the merits).
Before addressing the specific issues raised in this appeal, we
note that the State's brief lists the Lubbock Avalanche-Journal
as an intervenor. The record does not contain a petition in
intervention, order striking the intervention, or other
disposition of claims asserted by this party. The parties do not
challenge the finality of the trial court's judgment and, because
the second judgment before us was rendered after a trial on the
merits, we may presume that the trial court intended to, and did,
dispose of all parties and issues before it. North East
Independent School District v. Aldridge, 400 S.W.2d 893, 897-98
(Tex. 1966).
Scolaro now presents three challenges to the trial court's
judgments. In her first and third issues, she challenges the
judgment in case number 07-99-0064-CV and assigns error to the
trial court's action in granting the State's motion for partial
summary judgment and denying her motion for summary judgment. Her
second issue applies to the judgment in case number 07-99-0100-CV
and challenges the imposition of a fine. For reasons we later
recount, we affirm the judgments of the trial court.
The standards by which we must review summary judgment are so
well established
Page 753
that an extensive recitation of them is unnecessary. It is sufficient
to note that a movant's right to such a judgment requires them to
establish that there is no genuine issue of material fact and they
are entitled to judgment as a matter of law. Nixon v. Mr. Property
Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). Evidence
favorable to the non-movant will be taken as true, every reasonable
inference must be indulged in favor of the non-movant, and any doubts
resolved in their favor. Id. When both sides move for summary judgment
and the trial court grants one motion and denies the other, the
reviewing court should review both sides' summary judgment
evidence and determine all questions presented. Bradley v. State
ex rel. White, No. 97-1135 (Tex. 1999). When faced with error in
that circumstance, the reviewing court should render the judgment
the trial court should have rendered. Id.
Quo warranto is an extraordinary remedy prosecuted by the State
against a person who usurps or unlawfully holds a public office.
Although ancient in origin, the action is now authorized and
governed by chapter 66 of the Civil Practice and Remedies Code
(Vernon 1997). Section 66.003 CIV. PRAC. & REM. of that
statute specifically authorizes a judgment removing the person from
office, imposing a fine, and charging costs against them. These
remedies are exclusive. Newsom v. State, 922 S.W.2d 274,
278 (Tex.App. — Austin 1996, writ denied).
In support of her first and third points, Scolaro presents four
arguments. They are: 1) her payment of bar dues had retroactive
effect to either the start of the bar year, or the date of her
original request; 2) the doctrine of spoliation became applicable
when the State Bar destroyed original correspondence concerning
reactivation of her membership; 3) the statutory practice
requirement contained in Section 25.0014 GOV'T (3) of the Government
Code is not limited to the period immediately preceding the
judge's election; and 4) the rules regarding reinstatement to
active status are unconstitutionally vague.
Retroactive Effect
Scolaro argues that her payment of bar dues for 1994 should be
retroactive because there "is no clear reason" it should not be
retroactive. In support she cites Hill v. State, 393 S.W.2d 901
(Tex.Crim.App. 1965), in which a defendant challenged his
criminal conviction on the fact that his appointed attorney was
delinquent in payment of his bar dues at the time of trial. The
court initially noted the bar rule at that time providing "all
person not members of the State Bar are hereby prohibited from
practicing law in this State." Id. at 903. In rejecting the
appellant's argument and finding the attorney's subsequent
payment of dues retroactive, the court held that a delinquency in
payment of bar dues did not make them unlicensed to practice law
in this state.
The State responds by citing the recent case of Satterwhite v.
State, 979 S.W.2d 626, 627 (Tex.Crim.App. 1998), a criminal
prosecution of an attorney under Section 38.122 PENAL of the Penal Code
who represented a client when his license had been suspended for
nonpayment of dues. Satterwhite relied on Article III, Section 7
(A) of the Texas State Bar Rules as support of the argument that
his subsequent payment of bar dues and reinstatement were
retroactive. That rule provides:
When a member, who has been suspended for nonpayment
of fees or assessments, removes such default by
payment of fees or assessments then owing, plus an
additional amount equivalent to one-half the
delinquency, the suspension shall automatically be
lifted and the member restored to former status.
Return to former status shall be retroactive to
inception of suspension, but shall not affect any
proceeding for discipline of the member for
professional misconduct.
Page 754
State Bar Rules art. III, Section 7 (A), reprinted in Tex. Govt.
Code Ann., Title 2, Subtitle G, App. A (Vernon 1998). Based on
the latter half of the last sentence, the court ruled that
Satterwhite's subsequent payment and reinstatement did not
absolve him of criminal liability for conduct committed during
the time his license was suspended and noted that any attempt by
the State Bar to negate the effect of the criminal statute would
be unconstitutional. Satterwhite, 979 S.W.2d at 629. The court
distinguished Hill on the basis that it dealt with a criminal
defendant's claim of ineffective assistance of counsel based on
their attorneys' right to practice law. Id.
The differences between the issues addressed in Hill and
Satterwhite and the issues before us are significant. Both of
those cases concerned administrative suspensions rather than
attorneys voluntarily taking inactive status. Hill was also
decided before the adoption of Section 7 of the State Bar Rules.
That is significant because that section provides different
standards for reinstatement from administrative suspensions and
return from inactive status. In contrast to reinstatement from
administrative suspensions governed by subsection A quoted above,
return from inactive status is governed by subsection C, which
provides: "[a]n inactive member may return to active status upon
written application and payment of fees for the current year."
See also Tex. Govt. Code Ann. § 81.052 GOV'T (d) (Vernon 1998).
Unlike subsection A, subsection C contains no provision for
retroactivity. This omission supports the conclusion that a
change from inactive status is not retroactive. See Laidlaw Waste
Systems v. Wilmer, 904 S.W.2d 656, 659 (Tex. 1995). Moreover, the
record contains the deposition testimony of Kathy Holder, the
Membership Director of the State Bar, that the bar does not view
a change in status as retroactive. Subsection A of Section 7 is
never implicated because at no time during the 1994 bar year were
Scolaro's dues delinquent. The evidence shows that she had
already paid her 1994 bar dues at the inactive member rate of
$50.
Scolaro next argues that even assuming her 1994 active
membership dues were first paid in November, there is a genuine
issue of fact as to the date she requested a return to active
status and the subsequent payment should be retroactive to the
date of that request. As support she cites cases in which our
supreme court has held that payment of filing fees is retroactive
to the date of the filing. See Tate v. E.I. DuPont de Nemours &
Co., 934 S.W.2d 83, 84 (Tex. 1996); Jamar v. Patterson,
868 S.W.2d 318, 319 (Tex. 1993). In those cases the court treated the
documents as "conditionally filed" when tendered and the
subsequent fee payment as finalizing the original filing. We find
those cases inapplicable to the payment at issue.
With regard to documents filed in courts, a document is "filed"
when it is tendered to the clerk. Jamar, 868 S.W.2d at 319. It is
the act of tendering the document to the clerk that is of legal
significance. The payment of a filing fee is merely security for
costs. Rodeheaver v. Alridge, 601 S.W.2d 51, 54 (Tex.Civ.App.
— Houston [1st Dist.] 1980, writ ref'd n.r.e.); Op. Tex.
Art's. Gen. No. DM-459 (1997). Without such payment, the document
is still treated as "conditionally filed." Jamar, 868 S.W.2d at
319. In contrast, the payment of membership dues is one of the
two statutory prerequisites for a change from inactive to active
status. Tex. Govt. Code Ann. § 81.052 GOV'T (d) (Vernon 1998); In
re Jones, 978 S.W.2d at 653. Scolaro offers no policy reason or
legislative history which would persuade us that we should imply
into the plain language of the statute that a request for return
to active status is "conditionally effective" until the dues
payment is made. Kathy Holder's deposition suggested at least one
reason it should not be so. Until an attorney satisfied both
statutory requirements, the bar would respond to any requests
concerning their status as inactive. Holder described the
difficulty and confusion which would be the
Page 755
result if the bar attempted to make changes in status retroactive.
Finding no support for her argument, we hold that Scolaro's payment
of her active bar dues in November 1994 did not have retroactive
effect.
Spoliation
Scolaro next argues that the doctrine of spoliation is
applicable to create a presumption that documents destroyed by
the State Bar would have been favorable to her position. See
Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998); H.E. Butt
Grocery Co. v. Bruner, 530 S.W.2d 340, 344 (Tex.Civ.App. —
Waco 1975, writ dism'd). It is undisputed that the State Bar
routinely destroys original correspondence after one year.
Scolaro argues that this doctrine of spoliation creates a
presumption that the original correspondence would have shown
that she satisfied the requirements for return to active status
before November 3, 1994, thus precluding rendition of summary
judgment against her. The State correctly notes that the doctrine
of spoliation, as Scolaro seeks to rely on it, only applies to
the conduct of parties.[fn1] Brewer v. Dowling, 862 S.W.2d 156,
159 (Tex.App. — Fort Worth 1993, writ denied) ("failure to
produce evidence within a party's control" raises presumption);
H.E. Butt, 530 S.W.2d at 343 ("Where a party is in possession of
evidence").
It is clear that the State Bar is not a party to this
proceeding. Although the State Bar is an administrative agency of
the judicial branch, it is also a public corporation. Tex. Govt.
Code Ann. § 81.011 GOV'T (a) (Vernon 1998). When the Texas
Department of Public Safety and the Dallas County District
Attorney are held not to be the same party for purposes of
collateral estoppel, see State v. Brabson, 976 S.W.2d 182, 184
(Tex.Crim.App. 1998), it is difficult to conceive how the State
Bar could be considered to be a party to this quo warranto
proceeding brought by a special prosecutor in Lubbock County.
Even setting aside the fact that the destruction of any
documents was done by a non-party, the State has also presented
evidence which would rebut any presumption against it by showing
that the destruction was not with a fraudulent intent. The facts
before us are similar to Ordonez v. M. W. McCurdy & Co., Inc.,
984 S.W.2d 264 (Tex.App. — Houston [1st Dist.] 1998, no
pet.), where the court held that evidence of destruction of a
driver's log books after six months was part of a normal business
practice, the presumption from spoliation was inapplicable. Id.
at 273. Here, the evidence showed that it is the normal business
practice of the State Bar to destroy original correspondence
after one year and only retain electronic records of such
correspondence. The documents pertaining to Scolaro were not
singled out for destruction. Moreover, at the time of the
destruction, there was no contemplation of litigation relevant to
those records by the State Bar or the parties to this proceeding.
Actual Practice Experience
Scolaro's third argument is that she met the practice
requirement of Section 25.0014 (3) because 1) the "intent" of the
statute is that candidates have four years of legal experience,
and 2) she was actually engaged in the practice of law for the
four years preceding the election. We find these arguments
without merit.
It is well established that the purpose of statutory
construction is always to ascertain legislative intent. Mitchell
Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex. 1997); City
of Mason v. West Texas Utilities Co., 150 Tex. 18,
237 S.W.2d 273, 278 (1951). Courts must take statutes as they find them and
must find a statute's intent in its language and not
Page 756
elsewhere. RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607
(Tex. 1985). Additionally, every word in a statute must be
presumed to have been used for a purpose and every word excluded
for a purpose. Cameron v. Terrell & Garrett, Inc.,
618 S.W.2d 535, 540 (Tex. 1981).
The statute at issue provides that a candidate for a statutory
county court must have "practiced law or served as a judge of a
court in this state, or both combined for the four years
preceding election or appointment." Tex. Govt. Code Ann. §
25.0014 GOV'T (3) (Vernon Supp. 1999) (emphasis added). By its
inclusion of the article "the" in this requirement, the
legislature clearly specified which four years may be considered
toward the practice requirement. Under the authority discussed
above, this court is not free to ignore this restriction imposed
by the legislature.
Scolaro's second argument under this contention is that she was
actually engaged in the practice of law from September 1, 1994,
without regard to her status as a member of the bar. She offers
her own testimony that she studied law and handled legal matters
for herself and her husband. Although she has not presented any
description of these legal matters or documents generated in
connection with these matters, for the purpose of summary
judgment review, we accept these assertions as true.
Scolaro's argument fails to address the effect of Section
81.053 GOV'T (a) of the Government Code which provides that "[a]n
inactive member may not practice law in this state." She relies
instead on a letter sent by the membership department of the bar
concerning inactive status. An examination of this letter shows
that it does not support her contention. In a portion of the
letter giving examples of activities which constitute the
practice of law, thus precluding eligibility for inactive status,
it states that services "rendered solely on behalf of a member's
own personal interests" are excluded. Scolaro's reliance on this
letter offers no support for her position because it defines
services rendered for one's own interest, which is what she
asserts is the legal work she performed from September 1, 1994,
as not constituting the practice of law. She fails to explain how
her conduct would not constitute the practice of law for purposes
of Government Code Section 81.053 GOV'T (a), but would be the practice
of law under Section 25.0014 (3).
In a related first argument, Scolaro seeks to distinguish the
Texas Supreme Court case of Sears v. Bayoud, 786 S.W.2d 248 (Tex.
1990). That case involved the eligibility of a candidate for that
court under the constitutional requirement that a justice of that
court must have been a practicing lawyer for at least ten years.
It was undisputed that the candidate at issue was licensed less
than ten years before the date of the election, but more than ten
years before the date he would have taken office. Id. at 250. On
the central issue before it, the court held that practice
requirement must be satisfied by the date of the election, not
merely the date on which he would have assumed the office. Id. at
252. The court expressly held the fact that the candidate was
only a few days short of the practice requirement was of no legal
significance. Id. at 250.
Scolaro argues that Sears is inapplicable because it concerned
the date the candidate was originally licensed and it is
undisputed that she was licensed in 1984. This argument is
without merit. Two holdings from Sears are clearly applicable;
first, that a candidate's eligibility must be determined as of
the date of the election, and second, even when a candidate's
practice experience is only a few days short of the position's
requirement, a court may not disregard that deficiency as de
minimus.
She argues that the case of Ferris v. Carlson, 314 S.W.2d 295
(Tex.Civ.App. — Dallas 1958) (orig. proceeding), is more
analogous to the facts before us. Ferris involved an attorney
running for district
Page 757
judge. The local party committee determined that, although the
candidate was licensed to practice law for the entire period, there
was conflicting evidence on whether he was engaged in the practice
of law for the year 1953, and it determined that he did not practice
law that year and would not meet the statutory requirement. In
response, the candidate brought a mandamus action against the
committee in the appellate court. Holding that a fact question was
presented, the court denied the petition. Scolaro argues that the
evidence in the present case similarly presents a fact question on
whether she practiced law from September 1, 1994. Only after
presenting three pages in support of the applicability of Ferris
does Scolaro acknowledge that the Texas Supreme Court granted mandamus
in that case.[fn2] In reversing the opinion on which she relies,
the supreme court held the party committee could properly look to the
records of the supreme court concerning the candidate's status as
a member of the bar but the question of whether his actual
conduct constituted the practice of law was a mixed one of law
and fact and the party committee had no authority to resolve it.
314 S.W.2d at 579.
Scolaro's argument assumes that the question before the trial
court was one of fact, that is, whether she was engaged in the
practice of law before November 3, 1994. This assumption is based
on her belief that she could be engaged in the practice of law
for the purpose of Section 25.0014 (3) without regard to a grant
authority from the State Bar of Texas. This assumption is
incorrect. The State established that she could not have met the
statutory practice requirement, regardless of her actual conduct
in providing legal services because, under Section 81.053 GOV'T (a) of
the Government Code, as a matter of law she was not authorized to
practice law until she was reinstated to the active rolls of the
State Bar, well after November 3, 1994.
Constitutionality
Scolaro's final argument is a constitutional challenge to the
rules governing a change from inactive to active status. She
argues the rules are so vague as to deprive her of due process.
In support, she cites General Tire, Inc. v. Kepple,
917 S.W.2d 444, 453 (Tex.App. — Houston [14th Dist.] 1996), reversed,
970 S.W.2d 520 (1998), in which that court applied cases
discussing vagueness of statutes to Rule 76a of the Rules of
Civil Procedure. That opinion also noted the rule that vagueness
challenges to statutes which do not involve First Amendment
freedoms must be examined in light of the facts of the individual
case. Citing United States v. Mazurie, 419 U.S. 544, 550, 95
S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). In other words, the
statute or rule must be impermissibly vague as applied to the
fact of the case, not merely vague as applied to a hypothetical
set of facts.
As we noted in In re Jones, an attorney's return to active
status is governed by Section 81.052 (d) and article III, Section
7 of the State Bar Rules adopted pursuant to that statute. 978
S.W.2d at 653. Section 81.052 (d) provides:
An inactive member at his request may become an active
member on application and payment of the required fees.
The State Bar Rules essentially mirror this language. In the
course of her argument, it is clear that she does not challenge
the requirements, rather her constitutional challenge is to an
unwritten requirement that an attorney return their bar card.
We adhere to our holding in In re Jones, that the clerk of the
supreme court and the State Bar have no authority to impose
additional requirements without a change in the statute or rules.
978 S.W.2d at 653. However, Scolaro's argument fails for two
reasons. First, she does not challenge a statute or rule. She has
provided no authority
Page 758
that a constitutional vagueness challenge may be asserted as to
practices not embodied in a statute or rule. Second, there is no
evidence that Scolaro's return to active status was delayed because
of an attempt to impose any additional requirements. Any ruling we
make on this issue would have no effect on the outcome of this case.
Consequently, it would be advisory, and we may not render advisory
opinions. Camarena v. Texas Employment Com'n, 754 S.W.2d 149,
151 (Tex. 1988).
Our review of each of the arguments advanced by Scolaro in
support of her first and third issues convinces us that she has
failed to show error in the trial court's rendition of partial
summary judgment for the state or in denial of her motion for
summary judgment. We overrule her first and third issues.
In her second issue, Scolaro assigns error to the trial court's
imposition of a $2,500 fine. Our disposition of her first issue
is also dispositive of her first argument under this issue, that
imposition of the fine was improper because she was entitled to
hold the office. She also argues the lack of any evidence to
support the amount of $2,500.
The State responds by noting an absence of any authority that
evidence is required to support the amount of a fine in a quo
warranto proceeding. In closing argument at trial, the State
recommended a fine of $2,500 "because she has put us through this
and now Lubbock is going to have to replace her." From its
comments, it is apparent the trial court followed this
recommendation.
Texas cases discussing the imposition of fines in quo warranto
proceedings are rare. In what is probably the earliest Texas case
to discuss the issue, our supreme court in Banton v. Wilson, 4 Tex. 400
(1849), noted the origin of quo warranto as a criminal
proceeding and that its evolution into a civil remedy, as
embodied in what the court referred to as the statute of Anne,
included a change in the nature of the fine to be nominal only.
Id. at 407. It also noted the inapplicability of the statute of
Anne in Texas. Id.
The court next visited the issue in State v. De Gress, 53 Tex. 387
(1880), shortly after the legislature authorized quo warranto
proceedings by statute in 1879. Addressing the issue of whether
the proceeding was civil or criminal, the court noted the
similarity of the new Texas statute to the statute of Anne and
determined that, as a civil proceeding, only the imposition of a
nominal fine was authorized. Id. at 397. In Ball v. Merriman,
245 S.W. 1012, 1014 (Tex.Civ.App. — Beaumont 1922), reversed,
116 Tex. 527, 296 S.W. 1085 (1927), the imposition of a one cent
fine against the board of supervisors of Fresh Water Supply
District No. 1 of Jefferson County was noted without discussion.
Other courts to address the issue have not limited fines to
nominal amounts. In Standard Oil Co. v. Missouri, 224 U.S. 270,
56 L.Ed. 760 (1912), the United States Supreme Court recognized
the Missouri supreme court's authority to impose a $50,000 fine
in a quo warranto proceeding. Id. at 238.
The continued vitality of State v. De Gress under the current
statute governing quo warranto proceedings presents interesting
questions deserving of resolution. However, we are constrained to
address the issues raised by the parties to this appeal. With
regard to the imposition of a fine, Scolaro's challenge is to the
sufficiency of the evidence supporting the trial court's award
and not to its authority to impose a fine in excess of a nominal
amount. Therefore, we do not address that question.
Although there was some discussion in the trial court of
Lubbock County's expenses in prosecuting the action, there is
authority that attorney's fees and expenses, in contrast to court
costs, may not be recovered in a quo warranto proceeding, making
that an improper measure. See Aldrich v. State ex rel. Cox,
Page 759
658 S.W.2d 323, 328 (Tex.App. — Tyler 1983, no writ).
The legislature's omission of standards or limits for fines
imposed under Section 66.003 (3) in quo warranto proceedings
suggests that it chose to leave the matter to the trial court's
discretion. Viewing the record as a whole, we cannot say that the
trial court's imposition of a fine of $2,500 was arbitrary or
unreasonable. See Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 242 (Tex. 1985) (discussing test for abuse of
discretion). We overrule Scolaro's second point.
Finding no reversible error in the trial court's judgments, we
affirm the judgments involved in these appeals.
[fn1] In Trevino, the court noted that spoliation for conduct of
a party is an evidentiary matter, not a separate cause of action.
It declined to decide if an independent claim for spoliation of
evidence could be asserted against a non-party. 969 S.W.2d at
951, n. 1.
[fn2] The supreme court's opinion does not appear in Scolaro's
table of authorities.

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