
    BOLTON v. STATE.
    (Court of Criminal Appeals of Texas.
    March 12, 1913.)
    1. Criminal Law (§ 93) — Jurisdiction — “Official Misconduct. ’
    The failure of the tax assessor of a county to make a report of the fees collected by him, as required by law, is “oficial misconduct” within Const, art. 5, § 8, conferring on district •courts jurisdiction to try all misdemeanors in-Yolying official misconduct, and Code Cr. Proc. 1895, art. 89, giving the district court exclusive jurisdiction in cases involving official misconduct; and hence the county court had no .jurisdiction of a prosecution for such failure, •since “official misconduct” includes the failure ■of an officer to perform any and all acts re•quired by law to be performed, especially in view of R.ev. Civ. St. 1911, art. 6033, defining “official misconduct,” as used with reference ■•to the removal of county officers, as including .any willful failure, refusal, or neglect of an ■ officer to perform any duty enjoined on him by law.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 129, 137-166; Dec. Dig. § '93.
    
    For other definitions, see Words and Phrases, vol. 6, pp. 4953-4955.]
    2. Taxation (§ 325) — Assessors—Criminal Offenses — Indictment.
    An indictment charging the tax assessor of D. county with failing to make a report of the fees collected by him, required by law to be made in counties having more than 15,000 population, should have alleged that D. county had such population.
    [Ed. Note. — For other cases, see Taxation, ■Cent. Dig. § 548; Dec. Dig. § 325.]
    Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.
    James E. Bolton was convicted of crime, -and he appeals.
    Reversed and remanded, with instructions.
    Samuell & Adams, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER In Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

In this case the appellant was alleged to be tax assessor of Dallas •county on December 1, 1911, and that he fail-ed to make the report required by law showing the fees collected by him for the fiscal year beginning December 1, 1910, and ending November 30, 1911. On the trial he was con'victed, and his punishment assessed at a fine of $100.

When the indictment was returned into the criminal district court of Dallas county on the 7th day of May, 1912, the judge of that court transferred the case to the county court of Dallas county, at law. On the trial of the case in the county court, appellant did not plead to the jurisdiction of the county court, but he has filed in this • court a motion alleging that the indictment charged him with official misconduct, and that the county court has no jurisdiction of that offense; but the jurisdiction is conferred on the district court by the Constitution and laws of this state. There can be no question but that section 8 of article 5 of the Constitution confers on the district courts jurisdiction to try all misdemeanors involving official misconduct, and that article 89 of the Code of Criminal Procedure provides: “The district court shall have exclusive jurisdiction in cases of misdemeanor involving official misconduct” So the question here to be decided is, Does the indictment allege that appellant was guilty of official misconduct? If so, the county court had no jurisdiction over this offense,-and its judgment is a nullity.

What is meant by the words “official misconduct” in our Constitution and Code has been the subject of judicial inquiry in this state in a number of cases. In the case of Watson v. State, 9 Tex. App. 215, this court held that this provision of the Constitution related to only such misdemeanors “that involve unlawful official behavior, willful or corrupt in its nature, whether an act of omission or commission, involving moral turpitude;” but in the case of Hatch v. State, 10 Tex. App. 515, that case was overruled in so far as it held that the county court had jurisdiction to try an official for failure to perform any duty required of him by law, and held that such acts were “omcial misconduct” within the purview of the Constitution and the Code,’ and the district court alone had jurisdiction of such offenses. This latter case seems to be more in consonance with the definition of “official misconduct” contained in the statutes of this state. Article 6033 of the Revised Civil Statutes provides that under the head of “official misconduct” shall be included any willful failure, refusal, or neglect of an officer to perform any duty enjoined on him by law. Inasmuch as the law makes it the duty of the assessor to make this report, and makes it a misdemeanor for him to fail to do so, we are of the opinion that such failure renders him guilty of “official misconduct,” and that the county court had no jurisdiction of this offense.

In Mechem on Public Officers, § 457, it is said: “The omcial doing of a wrongful act, or the officer’s neglect to do an act which ought to have been done, will constitute official misconduct, although there was no corrupt or malicious motive.” This rule is also approved in Thorp on Public Offices, § 855. Thus it is seen that whether we turn to the statutory definition of “official misconduct,” or the common-law definition, these words seem to include the failure to perform any and all acts required by law to be performed; and, if such be the case, then under our Constitution and laws the( county court had no jurisdiction to try appellant for this offense, but the district court has exclusive jurisdiction. Therefore the case is reversed and remanded, with instructions to the county court to retransfer this case to the criminal district court of Dallas county, in which the indictment was returned by the grand jury.

There are other questions raised by appellant; but, as the county court had no jurisdiction to try this offense, we do not deem them before this court in a way we should review them. However, we will add we think the indictment should have alleged that Dallas county was a county of the population named in the act in which officers are required to make a report; that is, more than 15,000 population.

Reversed and remanded, with instructions to retransfer the case to the criminal district court.  