NO. 07-03-0089-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
DECEMBER 18, 2003
______________________________
ARTHUR WARE, INDIVIDUALLY AND AS POTTER COUNTY JUDGE,
JOHN STRADLEY, INDIVIDUALLY AND AS POTTER COUNTY COMMISSIONER,
MANNY PEREZ-VILLASENOR, INDIVIDUALLY AND AS POTTER COUNTY
COMMISSIONER, STRICKLAND WATKINS, INDIVIDUALLY AND AS POTTER
COUNTY COMMISSIONER, IRIS SANDERS LAWRENCE, INDIVIDUALLY
AND AS POTTER COUNTY COMMISSIONER, AND POTTER COUNTY, TEXAS,
APPELLANTS
V.
TERRY MILLER, POTTER COUNTY CONSTABLE, PRECINCT 2, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 88,221-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
OPINION
Arthur Ware, Potter County Judge, and John Stradley, Manny Perez-Villasenor,
Strickland Watkins, and Iris Sanders Lawrence, individually and as Commissioners or
former Commissioners of Potter County, appellants, present this appeal from a judgment
signed February 10, 2003, following a non-jury trial on the merits which, although it denied
Terry Miller any recovery for damages, awarded $90,824.25 attorney’s fees, plus other
fees. Presenting four issues,1 Arthur Ware et al. contend (1) Miller’s declaratory judgment
claim presents a moot question; (2) the award of attorney’s fees under the Declaratory
Judgments Act2 was not authorized where the declarations sought were the same as the
essential elements of the mandamus claim previously denied; (3) Arthur Ware, et al., as
individuals, are entitled to legislative immunity from liability for attorney’s fees based on
their budgetary actions; and (4) Miller was not entitled to declaratory judgment concerning
the reasonableness of his Constable’s salary because he did not (a) serve any process,
(b) attend the justice court for his precinct, (c) make any arrests, or (d) submit any reports
concerning criminal activity during his term of office. For the reasons expressed below,
the judgment of the trial court is vacated and the appeal is dismissed.
By his original petition filed during the final month of his term of office, Miller
commenced the underlying action to recover reasonable compensation for his term as
Constable and mandamus relief under Article XVI, section 61 of the Texas Constitution
and Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981). In
addition, Miller sought declaratory relief, including attorney’s fees. By order signed
1
Issues are restated.
2
Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-37.011 (Vernon 1997 & Supp. 2004).
2
December 21, 2001, in addition to denying Arthur Ware et al.’s motion for summary
judgment, the trial court granted Miller’s motion for partial summary judgment and directed
that a writ of mandamus be issued commanding the Commissioners Court to set and pay
a reasonable salary for Miller as Constable for 24 months, including all employee benefits
provided to elected officials of Potter County. Upon Arthur Ware et al.’s interlocutory
appeal,3 we concluded
• the trial court erred in denying Arthur Ware et al.’s plea to the
jurisdiction as to Miller’s claim for damages;
• mandamus relief was not appropriate; and
• legislative immunity protected the Commissioners from liability in their
individual capacities.
Because the December 21, 2001 order was only a partial summary judgment and
interlocutory, without addressing Miller’s request for declaratory relief, we reversed the
partial summary judgment and order directing the issuance of a writ of mandamus,
rendered judgment for Arthur Ware et al. on Miller’s claim for recovery of a reasonable
salary, ordered a severance, and remanded the proceedings seeking declaratory relief to
the trial court.
After remand, Arthur Ware et al. filed a supplemental plea to the jurisdiction
contending that Miller’s declaratory judgment action was moot; however, the supplemental
3
See Ware v. Miller, 82 S.W.3d 795 (Tex.App.--Amarillo 2002, pet. denied).
3
plea was denied by the trial court.4 After the severance and remand, Miller did not amend
his pleadings to raise any new claims but instead, proceeded to a non-jury trial on the
merits based on his prior pleadings on February 10, 2003. Following presentation of the
evidence,5 upon conclusion of the hearing, the trial court signed its judgment. Among
other things, the trial court concluded that Miller was entitled to a reasonable salary and
that Arthur Ware et al. had the legal obligation to set a reasonable salary for him pursuant
to Article XVI, section 61; however, the judgment did not make any monetary award of
salary or damages to Miller. As material here, the judgment also provided that Miller:
is entitled to recover reasonable attorney’s fees and expenses in the sum of
$90,824.25 pursuant to § 37.009 of the Texas Civil Practice & Remedies
Code. The judgment for attorneys [sic] fees shall run jointly and severally
against all Defendants herein with the following additional sums in the event
of an appeal:
(a) $7,500 attorneys [sic] fee [sic] in the event of an appeal to
the Court of appeals; and
(b) $7,500 attorneys [sic] fees in the event of an appeal to the Texas Supreme Court.
All sums awarded to Plaintiff shall bear interest at the rate of 10% per annum
from the date of judgment until paid, for recovery of which let execution issue
as to the individual Defendants. No execution shall issue as to Potter
County or its property. In the event this judgment is not observed by
4
The order denying the plea to the jurisdiction concluded, “[a]fter considering the
pleadings, the arguments of counsel and the evidence relevant to the jurisdictional issues,
the Court has determined that the remaining claim under the Uniform Declaratory
Judgments Act is justiciable and is not moot. The plea to the jurisdiction, therefore, must
be denied.”
5
Because Arthur Ware et al. do not challenge the sufficiency of the evidence or
contend the trial court abused its discretion in awarding attorney’s fees, we need not detail
the evidence presented at the hearing.
4
Defendant, Potter County, Texas, acting by and through its commissioners
court, the Court, without affecting the finality of this judgment, will entertain
requests for supplemental relief in accordance with § 37.011 Tex. Civ. Prac.
& Rem. Code Ann. Costs of court are taxed against Defendants. All relief
requested in this cause and not specifically and expressly granted herein is
hereby DENIED.
Findings of fact and conclusions of law were not requested and except as contained in the
judgment, no conclusions of law were made by the trial court.
By their first issue, Arthur Ware et al. contend that Miller’s claim for declaratory
judgment upon remand was moot. We agree. A case is moot when (1) a party seeks a
judgment to resolve a controversy, but no controversy exists, or (2) judgment is sought on
a matter which, when rendered for any reason cannot have a practical legal effect on an
existing controversy. Texas Health Care Info. Council v. Seton Health Plan, Inc., 94
S.W.3d 841, 847-48 (Tex.App.–Austin 2002, no pet.); see also Campus Communications,
Inc. d/b/a A & M Magazine v. Texas A & M University System, No. 01-02-00878-CV, 2003
WL 21027936, at *1 (Tex.App.–Houston [1st Dist. May 8, 2003, no pet. h.) (dismissing the
appeal because the issues before it were moot).
Under article II, section 1 of the Texas Constitution, Texas courts do not have any
jurisdiction to issue advisory opinions. See Valley Baptist Medical Center v. Gonzalez,
33 S.W.3d 821, 822 (Tex. 2000). Moreover, in State v. Morales, 869 S.W.2d 941, 947
(Tex. 1994), the Court re-announced that the Uniform Declaratory Judgments Act was
merely a procedural device “for deciding cases already within a court’s jurisdiction” and
5
that a request for declaratory relief “cannot confer jurisdiction on the court, nor can it
change the basic character of a suit.”
Declaratory judgment actions cannot be used to resolve hypothetical or contingent
situations. Firemen’s Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex. 1968). In Valley
Baptist, the discovery dispute was rendered moot when the Medical Center presented a
representative for deposition. 33 S.W.3d at 822. Similarly, Miller’s action for declaratory
judgment based on his pre severance pleadings was rendered moot because of our first
decision.
Because the District Court erroneously assumed jurisdiction of Miller’s request for
declaratory judgment, we vacate the trial court’s judgment and dismiss the appeal. Tex.
R. App. P. 43.2 (e). Our disposition of this issue pretermits consideration of the remaining
issues.
Don H. Reavis
Justice
Quinn, J., concurs in the result.
6