in Re Galveston County Judge Mark Henry, Galveston County Commissioner Ryan Dennard, Galveston County Commissioner Joe Giusti, Galveston County Commissioner Stephen Holmes, Galveston County Commissioner Ken Clark, in Their Official Capacities as the Galve
Opinion issued April 14, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00820-CV
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IN RE GALVESTON COUNTY JUDGE MARK HENRY,
GALVESTON COUNTY COMMISSIONER RYAN DENNARD,
GALVESTON COUNTY COMMISSIONER JOE GIUSTI,
GALVESTON COUNTY COMMISSIONER STEPHEN HOLMES, AND
GALVESTON COUNTY COMMISSIONER KEN CLARK,
IN THEIR OFFICIAL CAPACITIES AS THE
GALVESTON COUNTY COMMISSIONERS COURT, Relators.
Original Proceeding on Petition for Writ of Mandamus
OPINION CONCURRING IN
DENIAL OF EN BANC RECONSIDERATION
Relators have filed a petition for a writ of mandamus, challenging an ex
parte order signed by the judge of the 56th Judicial District Court in his capacity as
Galveston County Administrative District Judge. The order, styled “Ex Parte
Honorable Mark Henry and Galveston County Commissioners Court,” states in its
entirety:
On this the 24th day of September, 2014, the Administrative
Judge of the Galveston County District Courts considered the actions
of the Honorable Mark Henry and the Galveston County
Commissioners Court in terminating the employment of the Galveston
County Justice Administrator on or about July 24, 2014, in proceeding
to post the position for employment of a new justice administrator and
in proceeding to interview candidates to fill the position. The
authority to appoint and terminate court personnel lies with the courts,
not the county judge nor the commissioners court and the county
judge’s termination of the justice administrator and proposed selection
of a replacement violates the separation of powers doctrine and
infringes on the courts’ inherent powers. These actions also violate
Local Government Code Sec. 151.004 which prohibits the county
judge and commissioners court from attempting to influence the
appointment of a person to a position authorized by the
commissioners court for the department of another district, county or
precinct officer in the county.
It is therefore ORDERED AND DECREED that the actions of
the county judge and commissioners court of terminating the
employment of the Galveston County Justice Administrator was a
void act without legal authority and is hereby NULLIFIED and set
aside. Further that the county judge and commissioners court are
ordered to cease and desist the process of attempting to hire a new
justice administrator.
A panel of this court denied the petition for mandamus without an opinion
explaining the ruling, as authorized by Appellate Rule 52.8(d). I agree the petition
was correctly denied, but because of the unusual circumstances I write separately
to explain my reasoning.
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Whatever the merits of the relators’ complaints about the ex parte order, they
have an adequate remedy by appeal. There has been no presentation of a dispute to
a court, no presentation of evidence, no fact finding, and no application of law to
facts by a judge to resolve this dispute between the administrative judge and the
commissioners court. That process is available to resolve the dispute, and an
appeal is available from the final resolution. E.g., Weber v. Walker, 591 S.W.2d
559, 561 (Tex. Civ. App.—Dallas 1979, no writ) (cities filed suit asking district
court to order commissioners court to provide funds for sheriff’s personnel);
Comm’rs Court of Lubbock Cnty. v. Martin, 471 S.W.2d 100, 103 (Tex. Civ.
App.—Amarillo 1971, writ ref’d n.r.e.) (declaratory judgment action challenging
constitutionality of statute regarding appointment and compensation of probation
personnel); Wichita Cnty. v. Griffin, 284 S.W.2d 253, 254 (Tex. Civ. App.—Fort
Worth 1955, writ ref’d n.r.e.) (official court reporters filed suit in district court for
writ of mandamus to compel commissioners court to pay increased salaries as
ordered by the district courts); see also Vondy v. Comm’rs Court of Uvalde Cnty.,
620 S.W.2d 104, 104–05 (Tex. 1981) (mandamus sought by constable in district
court to compel commissioners court to set a reasonable salary for constable’s own
office).
We should not exercise our mandamus jurisdiction in this circumstance
because the ordinary judicial process is available, and it results in a remedy by
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appeal. Cf. Eichelberger v. Eichelberger, 582 S.W.2d 395, 400 (Tex. 1979) (citing
Pope v. Ferguson, 445 S.W.2d 950 (Tex. 1969)).
Michael Massengale
Justice
The en banc court consists of Chief Justice Radack, and Justices Jennings, Keyes,
Higley, Bland, Massengale, Brown, Huddle, and Lloyd.
Justice Massengale, joined by Justice Brown, concurring in the denial of en banc
reconsideration.
Publish. TEX. R. APP. P. 47.2(b).
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