Constable Swinney sues Donley County

Constable Jimmy Swinney filed a lawsuit in district court last Tuesday, June 19, over the salary set for him by Donley County.

According to documents in the county clerk’s office, the petition names as defendants County Judge Jack Hall; commissioners Don Hall, Ernest Johnston, Henry C. “Buster” Shields, and Bob Trout; and Donley County.

Constable Swinney would not comment on the case. His attorney, Chuck Hester of Canyon, would only say that they expect 100th District Judge David McCoy to recuse himself from the case. Hester said that would be the normal procedure in a case such as Swinney’s to avoid any potential conflict of interest.

County Attorney Pro Tem Kaye Messer said she sees no reason for Judge McCoy to recuse himself and said she would oppose any attempt to have him do so.

Messer met with the commissioners’ court Tuesday and discussed the case in closed session. At press time she said she was preparing the county’s response.

The petition filed by Swinney’s attorneys says the constable’s salary “is unlawful and such conduct is arbitrary and unreasonable on the part of Defendants and constitutes an abuse of discretion.”

Swinney filed as a write-in candidate for constable of Precincts 1&2 on September 7, 2000, and was elected without opposition with 52 votes during the November 7 election, according to published reports. The office had been vacant since 1969.

In December, the county set Swinney’s salary at $3,170. County officials at the time said they based the salary on the number of warrants and citations Swinney would serve for Justice of the Peace Jimmy Johnson. They also said Swinney’s services to police Precincts 1&2 would not be needed based on comments by then Sheriff-elect Butch Blackburn.

The salary for the constable in Precincts 3&4 is $17,146.95.

Messer said Swinney’s attorneys sent a letter of demand to the county this spring seeking a salary equal to the Precinct 3&4 constable’s. The county did not respond to that letter.

A June 19 opinion obtained by Donley County from Texas Attorney General John Cornyn says constables’ salaries are within the discretion of the commissioners’ court but subject to judicial review.

The opinion says a court ruling found that Uvalde County could not limit a constable’s salary because, among other things, the constable knew there was no salary set for the office or the constable’s law enforcement services were not necessary.

The Attorney General also said salaries of constables may differ if the circumstances in each precinct reasonably required different salaries.

“I’m very comfortable with the county’s position,” Messer said.

Swinney’s petition asks the court to command the county set and pay a reasonable salary for his term. The petition also seeks back pay with pre-judgment interest, attorney fees, and punitive damages.