Sunday, April 3, 2011

The Impeachment of Gov. Ferguson

Some events occur so rarely in the course of the political history of a state that they become something of a curiosity. The impeachment of an executive officer is one of these events. In the 200 years that the United States has existed, two Presidents have been impeached, while another resigned from office rather than face this ignominy (though he was not able to avoid it). And in the 175 year history of the state of Texas, only one governor has ever been impeached: James E. Ferguson (1915-1917).

James Ferguson seemingly burst onto the Texas political scene from nowhere. Prior to his election as governor in 1914, Ferguson had held no political office at any level, but was a local attorney (admitted to the bar after buying his examiners a bottle of whiskey) and banker in Belton and Temple, TX. However, Ferguson was politically experienced. He had worked against local-option prohibition in Bell County and was involved in 4 campaigns (2 as campaign manager): for Congressman Robert Henry in 1902, for Cone Johnson in 1908, for Robert Davidson in 1910, and for Gov. Oscar Colquitt in 1912 (the defining feature of many of these campaigns was anti-prohibition). After running so many campaigns for others, "Farmer" Jim set out on his own, as an anti-prohibitionist of course, and won the gubernatorial election of 1914 (at this time, terms for governor were a period of two years) and re-election in 1916.

After his re-election, Ferguson was being investigated by the House and the Travis County DA for diversion of state funds, misuse of appropriated funds and  embezzlement. The House found that Ferguson was guilty of misconduct, but declined to impeach the Governor. While Ferguson was involved in this investigation, he became embroiled in a battle with the University of Texas. Ferguson wanted the Board of Regents to fire professors that he found objectionable - alleging that they were corrupt - and called for the resignation of university president, Robert E. Vinson. Students from the University marched on the Capitol and protested in front of the Governor's Office on the south steps of the Capitol (where many protests and rallies are still held), which angered Ferguson even further. When the Board would not fire the professors, Ferguson vetoed the appropriation for the University of Texas, except for the salary of a College of Mines administrator.

However, what really drove the move for impeachment was a disagreement between Gov. Ferguson and Speaker F. O. Fuller on the placement of West Texas A&M University in Abilene. A locating board of 5 members, including Gov. Ferguson, Lt. Gov. Hobby, and Speaker Fuller, had toured West Texas cities that wanted the new college. When the board later met in Austin, three votes went to Abilene, but shortly after the vote, there were reports that three members of the board had not voted to locate the school in Abilene. According to Fuller, Ferguson made him sign a statement that the voting had been fair and accurate. Fuller renounced the statement, and along with Lt. Gov. Hobby, signed an affidavit that he had not voted for Abilene. On July 23rd, Speaker Fuller issued a call for a special session, although he did not have the authority to do so, to deal with the issue of the University of Texas appropriations. On July 27th the Travis County DA indicted Ferguson on criminal charges related to the findings of misconduct by the House of Representatives.

After several days of speeches and battling back against the charges brought against him, on July 30th, Ferguson called for a special session to take up the issue of the appropriations for the University of Texas on August 1st, but that day, the House convened to begin the impeachment of Gov. James E. Ferguson. The House met as a committee of the whole to consider the impeachment of Ferguson on 13 charges, including four relating to his dealings with the University of Texas. There were several weeks of testimony about diversions and misuse of state funds, the University of Texas and the location of West Texas A&M, including the testimony of Gov. Ferguson (setting a precedent for an executive officer attending his own trial), which raised more questions about the governor's financial dealings. In the end, the House voted to impeach James Ferguson on 21 articles.

His impeachment effective, Ferguson would now be suspended from exercising the powers of his office, according to Article 15, Section 5 of the Texas Constitution, and Lt. Gov. Hobby would become the acting governor, while the Texas Senate met as a High Court of Impeachment. On August 27th, the Senate adopted its rules of procedure on impeachment. On August 29th, Acting Gov. William Hobby called another special session to allow the Senate to try Ferguson and rule on his removal from office (special sessions last for a period of 30 days, and the prior session would end on August 31st). The Senate covered many of the issues which had previously been covered in the House, and once again, Ferguson taking the stand on his own behalf (and even making closing arguments before the Senate). Of the House's 21 articles of impeachment, the Senate passed 10 on a series of "yes/no" votes. With the passage of these article, Ferguson was effectively removed from office, and while the Senate was considering whether or not to prohibit Ferguson from ever again seeking office, he resigned. A majority of the Senate Committee on Civil Jurisprudence recommended that Ferguson be barred from seeking any future office and there report was adopted on September 25th by a vote of 25 to 3. "Farmer" Jim was no longer Governor of Texas.

However, this was not the last Texas would see of Jim Ferguson. Ferguson would run for office on four more occasions. Ferguson would attempt to vie for a 3rd term as Texas Governor in 1918, but was soundly defeated in the Democratic primary by William P. Hobby. In 1920, he would run for President under the American Party banner with William Hough of New York. Their ticket was only on the ballot in Texas where they won 47,968 votes - compared to the Democratic ticket (Cox and Roosevelt) which carried the state with 288,767 votes. Ferguson would also run for U.S. Senate in 1922, but would lose to the KKK endorsed candidate, Earl B. Mayfield, in the Democratic primary run-off election. His last attempt at electoral office was in 1924, but was prevented after the Texas Supreme Court on June 2nd ruled he was ineligible to seek office. Hedging against the inevitable ruling, on May 28th, Ferguson's wife, Miriam, filed to run in the Democratic primary for governor. She would win the election, but lose her bid for re-election in 1926. Jim Ferguson would run his wife's unsuccessful gubernatorial campaigns in 1930 (when the Texas Supreme Court again rejected petition to be on the ballot), 1932, and 1940.

In his book, the Impeachment of Jim Ferguson, Bruce Rutherford notes the relevance of the impeachment of Jim Ferguson to other impeachment proceedings, especially as a matter of precedence, as well as its place in the history of this procedure. During his trial, Ferguson's attorney, W. A. Hanger, argued that the charges brought against the governor were not impeachable offenses, and this would seem to make sense, when one considers that the House had earlier in the year investigated the matters and only alleged that Ferguson was guilty of misconduct. However, when one looks at the history of impeachment, one gets a different impression of what is/was an impeachable offense, as Mr Rutherford did (pp. 136-37): 'The transgressions that most commonly resulted in impeachment for "high crimes and misdemeanors" [referring to the history of impeachment in England] were misapplication of funds, maladministration, rendering unconstitutional opinions, using high office to deny due process to individuals or to obtain personal gain, appointing unfit men, and neglect of duty in warfare.' This is confirmed by Blackstone's Commentaries (Chp. 1Chp. 9, Chp. 19) and the debate in the Constitutional Convention (Sept. 8th). The charges against Ferguson certainly met some of these criteria.

Ferguson's legal team also alleged that the Texas Legislature did not have the constitutional authority to take up the matter of impeachment, because the special session had not been called for that purpose (Article 3, Section 40 of the Texas Constitution). The Texas Supreme Court would rule on this matter during Ferguson's attempt to run for governor in 1924 (Ferguson v. Maddox, 263 S.W. 888). The Court ruled that impeachment was a judicial, not a legislative function, and thus was not governed by the restrictions on special sessions. As Attorney General John Hill summed up the case in one of his opinions: "As neither House acts in a legislative capacity in matters of impeachment, this section [Article 3, sec. 40] imposes no limitation with relation thereto, and the broad power conferred by article 15 stands without limit or qualification as to the time of its exercise." The Court also ruled that Ferguson's "11th hour" resignation had not prevented the Senate from prohibiting his future holding of office.

One further issue was raised by during the proceedings in the Texas as to the nature of the impeachment trial. Ferguson's attorney, W. A. Hanger argued that the trial was a criminal proceeding, while M. M. Crane, the attorney representing the House of Representatives, argued that it was a civil proceeding. On Sept. 11th of 1917, the President Pro Tem of the Senate, W. L. Dean, ruled that the impeachment trial was a quasi-criminal proceeding. In England, impeachment was a criminal proceeding, with the historical punishment being death, but in the United States, as Mr Rutherford notes, "where the penalty is removal from office, it is not" (p. 138). In these proceeding the ruling of the Senate is final, although some friends of "Farmer" Jim attempted to essentially pardon him. In a majority report to the 39th Legislature, some legislators recommended passing legislation to grant a release to "every person against whom has heretofore been rendered by the Senate of the State of Texas in any impeachment proceeding."

In the online records the Texas Legislative Reference Library, I can only find reference to one other executive officer who faced impeachment proceedings: Land Commissioner J. T. Robinson in 1929. James Ferguson was certainly a special case in Texas history and the history of impeachments. It is amazing that a man who came into office so beloved left office in disgrace. Bruce Rutherford's conclusion that, "As long as his political base is securely intact, no political official needs to worry about being impeached," is accurate.

Notes:
  1. The Texas Constitution of 1876, under which the state of Texas operates, devotes an entire article to the subject of impeachment (Article 15). 
  2. You can read the testimony of the impeachment trial here and here.

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