Constable's night of drinking at home won't cost him his job

A Tarrant County constable is no longer at risk of losing his job for drinking at home on his own time last summer.

A lawsuit calling for Precinct 5 Constable Ruben Garcia Jr. to be removed from office based on a rarely used Texas law — which allows officials to be removed for a variety of reasons, including incompetence or intoxication — had been filed last month.

That lawsuit has now been dismissed by visiting Senior District Judge J. Blair Cherry Jr. of Lubbock.

"The court finds that citation and service in this case should not occur," Cherry wrote, noting that the suit "is dismissed."

At issue is what happened around 3 a.m. June 10, 2017, when Garcia called 911 and asked for an officer to respond to his home, the lawsuit stated.

Two officers responded, noting that Garcia smelled of alcohol, had slurred speech and was "highly intoxicated" when he requested a protective order. The officers told him they couldn't give him that and asked that he contact the district attorney's office.

"That intoxication was caused by drinking an alcoholic beverage," according to the lawsuit filed on behalf of Benny Ortiz on June 1. "His intoxication is grounds for removal" from office.

Garcia's attorney has said the only reason the constable called the police in the first place was because he was threatened by Ortiz, who happens to be the boyfriend of Garcia's niece. Beyond that, the constable was consuming alcohol in his own home while he was off duty.

"What we have here is an instance where the Defendant is alleged to have been intoxicated, but there is no allegation that this is habitual or interfered with his duties," Cherry wrote. "lnstead, the affidavits reflect that he was in his own home when he became disturbed about a person named Benny Ortiz and called the police.

"When the police arrived, he exited his home to talk to them, and made his complaint. The police believed him to be intoxicated. There is no other allegation of any wrongdoing."

Garcia's attorney, Francisco Hernandez, said he was glad to hear the lawsuit was dismissed.

"Justice has prevailed, thank goodness," he said. "It saves my client a lot of time, money and grief. The judge did the right thing."

Ortiz's attorney, William S. Nolen of Colleyville, said he and his client were disappointed in the decision. But he said the facts in the case were clear.

"At this point our case has been denied but I believe the same case could be brought by another plaintiff and I believe the case would move forward to a jury," he said.

The Tarrant County district attorney's office declined to comment on the ruling.

Old law

The arcane law used in this case — Texas Local Government Code 87 provision — is rarely cited.

But there have been at least two high-profile cases in which it was cited recently.

One was in 2013, after then-Travis County District Attorney Rosemary Lehmberg was arrested on a charge of drunken driving.

The other was in 2015, after then-Dallas County District Attorney Susan Hawk sought treatment for prescription drug addiction and abuse. That petition claimed she was incompetent.

The Code 87 provision lets petitions be filed against officials ranging from district attorneys and county judges to county surveyors and constables.

The main reasons cited: incompetency, official misconduct or intoxication.

But the statute notes that "intoxication is not a ground for removal if it appears at the trial that the intoxication was caused by drinking an alcoholic beverage on the direction and prescription of a licensed physician practicing in this state."

"Chapter 87, Sec. 87.OL6 gives the Court the duty, and the discretion, to pass upon the merits of the petition before citation may be issued, and service obtained," Cherry wrote in his ruling. "The Legislature, in essence, made the Court a gatekeeper for these cases."

Denied

Garcia, a Democrat, has served as the precinct 5 constable since 2012.

In Texas, constables often serve legal documents in evictions, truancy, child support and child custody cases.

The lawsuit said that Ortiz "further requests this court sign an order of removal of Constable Ruben Garcia Jr. from his office of Tarrant County Constable."

Cherry denied that request and dismissed the case.

This story was originally published July 9, 2018 at 12:22 PM with the headline "Constable's night of drinking at home won't cost him his job."