ACCEPTED
01-14-00820-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/29/2015 10:21:34 AM
CHRISTOPHER PRINE
CLERK
No. 01-14-00820-CV
_____________________________________________________________
RECEIVED IN
1st COURT OF APPEALS
IN THE HOUSTON, TEXAS
FIRST COURT OF APPEALS 1/29/2015 10:21:34 AM
at Houston, Texas CHRISTOPHER A. PRINE
Clerk
_____________________________________________________________
IN RE GALVESTON COUNTY JUDGE MARK HENRY,
GALVESTON COUNTY COMMISSIONER RYAN DENNARD,
GALVESTON COUNTY COMMISSIONER KEVIN O’BRIEN,
GALVESTON COUNTY COMMISSIONER STEPHEN HOLMES,
AND GALVESTON COUNTY COMMISSIONER KEN CLARK,
IN THEIR OFFICIAL CAPACITIES AS THE
GALVESTON COUNTY COMMISSIONERS COURT,
Relators
v.
THE HONORABLE LONNIE COX, 56th DISTRICT COURT
Respondent
_____________________________________________________________
From the 56th Judicial District Court of
Galveston County, Texas
_____________________________________________________________
AMICUS CURIAE BRIEF IN SUPPORT OF RELATORS
_____________________________________________________________
John B. Dahill
State Bar No. 05310430
TEXAS CONFERENCE OF URBAN COUNTIES
500 W. 13th Street
Austin, Texas 78701
(512) 476-6174 telephone
(512) 478-5122 facsimile
Table of Contents
Table of Contents .......................................................................................................2
Table of Authorities ...................................................................................................3
Identity and Interest of Amicus Curiae ......................................................................5
Argument....................................................................................................................5
I. Respondent Had No Jurisdiction to Issue Ex Parte Order ..............................5
II. Respondent’s Ex Parte Order Issued Sua Sponte Ignored Due Process .........7
III. Respondent’s Ex Parte Order Not Supported by Statutory Authority ............9
Prayer .......................................................................................................................12
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Table of Authorities
Cases
Commissioners Court of Lubbock County v. Martin,
471 S.W.2d 100 (Tex. Civ. App.—Amarillo 1971, writ ref'd n.r.e.) ..................... 7
Commissioners Court of Titus County v. Agan,
940 S.W.2d 77 (Tex. 1997).....................................................................................5
Dist. Judges of 188th Judicial Dist. v. County Judge and Commissioners
Court for Gregg County, Tex.,
657 S.W.2d 908 (Tex. App.—Texarkana 1983, writ ref'd n.r.e.) ....................... 7, 8
Ector County v. Stringer,
843 S.W.2d 477 (Tex. 1992) ................................................................................. 6
Hooten v. Enriquez,
863 S.W.2d 522, 529 (Tex. App. 1993) .............................................................. 10
In re El Paso County Com'rs Court,
281 S.W.3d 16 (Tex. App. – El Paso 2005, no pet.) ...................................... 6, 7, 8
Matter of El Paso County Courthouse,
765 S.W.2d 876 (Tex. App.—El Paso 1989, no writ) ............................................ 8
Mays v. Fifth Court of Appeals,
755 S.W.2d 78 (Tex. 1988)................................................................................. 6, 7
State v. Johnson,
52 S.W.2d 110 (Tex. Civ. App.—San Antonio 1932, writ dism'd w.o.j.) .......... 11
Vondy v. Commissioners Court of Uvalde County,
620 S.W.2d 104 (Tex. 1981) .................................................................................. 7
Attorney General Opinions
Tex. Att'y Gen. Op. LO-96-003 (1996) .................................................................... 10
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Statutes
Tex. Const. art. V, § 8 ........................................................................................... 5, 6
Tex. Gov't Code Ann. § 24.020 ............................................................................ 5, 6
Tex. Gov't Code Ann. § 74.101, Government Code................................................. 9
Tex. Gov't Code Ann. § 74.103, Government Code............................................ 9, 10
Tex. Loc. Gov't Code §§ 151.001 – 151.903 ........................................................... 10
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Identity and Interest of Amicus Curiae
The Texas Conference of Urban Counties (“CUC”) is a Texas nonprofit
organization composed of 37 member counties, representing approximately 80% of
the population of Texas. CUC serves its member counties through education
endeavors and through representation before state and federal governmental
entities. CUC and its members have a strong interest in matters affecting the
authority over the creation of county staff positions and the fiscal impact of those
positions, and in the appropriate manner and means by which decisions of a county
commissioners court may be reviewed by a state district court. 1
Argument
I. Respondent Had No Jurisdiction to Issue Ex Parte Order
The Texas Constitution provides that “[t]he District Court shall have
appellate jurisdiction and general supervisory control over the County
Commissioners Court, with such exceptions and under such regulations as may be
prescribed by law.” Tex. Const. art. V, § 8; see also Tex. Gov't Code Ann. §
24.020 (Vernon). A district court's constitutional supervisory control over a
commissioners court’s judgment can generally only be invoked when the
commissioners court acts beyond its jurisdiction or clearly abuses the discretion
conferred upon the commissioners court by law. Commissioners Court of Titus
1
The author of this brief has received no fee for its preparation.
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County v. Agan, 940 S.W.2d 77, 80 (Tex. 1997); Ector County v. Stringer, 843
S.W.2d 477, 479 (Tex. 1992); In re El Paso County Com'rs Court, 281 S.W.3d 16,
24 (Tex. App. – El Paso 2005, no pet.).
Relators have provided this Court with a long list of cases dating back
almost 90 years holding that a lawsuit must be filed in the district court in order to
invoke the district court’s supervisory control over the commissioners court. In a
very clear expression of this principle, the El Paso Court of Appeals has held that a
district court cannot invoke its own jurisdiction to exercise supervisory control
over the commissioners court under Article V, Section 8 of the Texas Constitution
or Section 24.020 of the Texas Government Code. In re El Paso County Com'rs
Court, 281 S.W.3d at 26.
Respondent cites Mays v. Fifth Court of Appeals, 755 S.W.2d 78 (Tex.
1988) to support his claim that a lawsuit was not required to invoke the district
court’s supervisory jurisdiction over the Commissioners Court. [Actually,
Respondent primarily cites a concurring opinion in Mays, and not the majority
holding.] The Supreme Court held in Mays that “[t]he performance of a clear
statutory duty which is ministerial and nondiscretionary may be directed by the
District Court without notice and hearing in the absence of a statutory requirement
to the contrary.” Quite simply, Mays is not applicable to this matter. Respondent
can cite no statutory duty that was ministerial and nondiscretionary violated by the
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Galveston County Commissioners Court. The matter before this Court is far more
similar to the facts in In re El Paso County Com'rs Court than those in Mays, the
former being decided 7 years after Mays.
In the instant matter, no lawsuit had been filed vesting the district court with
supervisory jurisdiction over the Galveston County Commissioners Court before
the issuance of Respondent’s ex parte order. Therefore, Respondent’s order was
not a valid exercise of the district court’s supervisory control of the Commissioners
Court. If this Court were to decide otherwise, the judiciary in Texas would be “on
the perilous road to potentially second-guessing every executive or administrative
decision of a county commissioners court.” See In re El Paso County Com'rs
Court, 281 S.W.3d at 27.
II. Respondent’s Ex Parte Order Issued Sua Sponte Ignored Due Process
Texas Courts have recognized that the judicial branch possesses inherent
power to require the legislative and executive branches to provide essential staffing
and facilities for it to properly perform its judicial functions. See Dist. Judges of
188th Judicial Dist. v. County Judge and Commissioners Court for Gregg County,
Tex., 657 S.W.2d 908 (Tex. App.—Texarkana 1983, writ ref'd n.r.e.); Vondy v.
Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981);
Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100, 110 (Tex.
Civ. App.—Amarillo 1971, writ ref'd n.r.e.). However, the inherent power to
Page -7-
require such staffing is not unlimited. Dist. Judges of 188th Judicial Dist., 657
S.W.2d at 909 (“The [inherent] power is not unlimited…especially in the area of
government finances.”). It does not excuse judicial officers from the burden of
showing that compelled staffing is essential for the holding of court, the efficient
administration of justice, or the performance of a court’s constitutional and
statutory duties. See Dist. Judges of 188th Judicial Dist., 657 S.W.2d at 909 - 910
(where judges failed to establish the required essentiality, there was no basis for
exercise of judges' inherent power to compel county judge and commissioners'
court to fund increased salaries for court personnel and to implement a court
administration system for the county); See also In re El Paso County Com'rs
Court, 281 S.W.3d 16, 28 (“[S]ound public policy considerations demand that
when the judiciary seeks to use its inherent power to overcome the legislative
prerogative, it must be held to a high standard and must assume the burden of
showing that the funds sought to be compelled are essential for the holding of
court, the efficient administration of justice, or the performance of its constitutional
and statutory duties.) The court generally must afford procedural due process
including notice and hearing. See Matter of El Paso County Courthouse, 765
S.W.2d 876, 882 (Tex. App.—El Paso 1989, no writ). A court’s own
administrative findings cannot be enforced unless those findings are established by
a fact finding process. Dist. Judges of 188th Judicial Dist., 657 S.W.2d at 910.
Page -8-
It is undisputed in this case that the Respondent issued an ex parte order sua
sponte. Respondent now defends such order with an assertion, in part, of inherent
power. But Respondent wholly overlooks the due process requirements which
must accompany the judiciary’s exercise of such inherent power.
III. Respondent’s Ex Parte Order Not Supported by Statutory Authority
The issue before this Court is the validity of Respondent’s ex parte order to
the Galveston County Commissioners Court. For the reasons stated above,
Respondent’s order is void, without regard to whatever statutory authority may
vest district courts with the authority to create and supervise positions within
county government. But lest some on this Court believe Respondent’s actions
were legitimate to protect statutory authority over the Director of the Galveston
County Justice Administration Department, a review of relevant Texas statutes is
warranted.
Texas statutes permit judges to create certain positions – and, in some
instances, obligate taxpayers to fund those positions. Such is the case, for
example, for court coordinators under § 74.101, Government Code (“The local
administrative judge and each district or statutory county court judge may establish
a court coordinator system and appoint a court coordinator for his court to improve
justice and expedite the processing of cases through the courts.”); court staff and
support personnel under § 74.103 (“The courts may appoint appropriate staff and
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support personnel according to the needs in each county.”); and court
administrators in certain specific counties under Chapter 75, Government Code
(which does not include any provision applicable to Galveston County). [Courts
may also appoint court reporters, but those statutes clearly are not applicable in this
matter.] There is no statutory authority for the district and statutory county courts
in Galveston County to create the positions that comprise the Galveston County
Justice Administration Department.
Chapter 151 of the Local Government Code generally regulates the process
by which elected district, county and precinct officers may appoint deputies,
assistants and clerks and other employees that are required in the performance of
the officer’s duties. See Tex. Loc. Gov't Code §§ 151.001 – 151.903. The process
for elected officials to request approval for hiring employees should coincide with
the annual budget setting process. See Hooten v. Enriquez, 863 S.W.2d 522, 529
(Tex. App. 1993); Tex. Att'y Gen. Op. LO-96-003 (1996) (“Thus, subsection
74.104(a) authorizes the judges to recommend salaries for the court coordinators,
and their recommendations are subject to change during the county budgeting
process. We also believe that the courts' power to appoint staff and support
personnel ‘according to the needs in each county,’ Gov't Code § 74.103, is subject
to the commissioners court's approval of the position and compensation pursuant to
section 151.901 of the Local Government Code.”). Failure to comply with Chapter
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151 may render personnel appointments void and subject the purported appointee
to removal. See State v. Johnson, 52 S.W.2d 110, 111 (Tex. Civ. App.—San
Antonio 1932, writ dism'd w.o.j.); 35 Tex. Prac., County And Special District Law
§ 7.16 (2d ed.).
The procedures set forth in Chapter 151, Local Government Code, provide
order in the establishment of county financial obligations vis-à-vis personnel for
independent elected district, county, and precinct offices. A county and its
taxpayers should not be subject to the random desires of officials for staffing their
offices outside of the process found in Chapter 151. Absent a showing of
compliance with Chapter 151 and the existence of authority to appoint the Director
of the Galveston County Justice Administration Department, Respondent had no
authority under Texas statutes to assert any control or supervision over the
position. A review of Respondent’s Reply to Petition for Mandamus reveals no
assertion that Respondent, his predecessors, or other members of the judiciary in
Galveston County ever complied with Chapter 151 or its predecessor statute with
respect to the Director of the Galveston County Justice Administration
Department.
To the contrary, Relators have produced evidence to show that the Galveston
County Commissioners Court created the county’s personal bond office in 1973,
and created the county’s collection improvement program in 2005. In the case of
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the former, the statute in 1973 permitted creation of a personal bond office by
either a county or by a judicial district. In the case of the latter, Article 103.0033,
Texas Code of Criminal Procedure, requires a county – not the judiciary – to
establish a collection improvement program. The employees of both of those
offices reported to the Galveston County Commissioners Court, and were later
placed within the Galveston County Justice Administration Department.
Prayer
For the reasons stated in this Amicus Curiae Brief, the Texas Conference of
Urban Counties requests that the Court issue a writ of mandamus directing Judge
Lonnie Cox, presiding judge of the 56th Judicial District Court of Galveston
County and Administrative Judge of the Galveston County District Courts, to
vacate his ex parte Order of September 24, 2014.
Respectfully submitted,
/s/ John B. Dahill
John B. Dahill
State Bar No. 05310430
TEXAS CONFERENCE OF URBAN COUNTIES
500 W. 13th Street
Austin, Texas 78701
(512) 476-6174 telephone
(512) 478-5122 facsimile
Page -12-
Certificate of Service
I certify that a copy of this Amicus Curiae Brief in Support of Relators was
served via certified mail, return receipt requested, facsimile, and/or electronically
on this 29th day of January 2015, to the following:
James P. Allison Andrew Mytelka
j.allison@allison-bass.com amytelka@greerherz.com
J. Eric Magee Angie Olalde
e.magee@allison-bass.com aolalde@greerherz.com
Phillip Ledbetter Greer, Herz & Adams, L.L.P.
p.ledbetter@allison-bass.com One Moody Plaza, 18th Floor
ALLISON BASS &MAGEE, L.L.P. Galveston, Texas 77550
A.O. Watson House (409) 866-
402 W. 12th Street
Austin, TX 78701 Amici Curiae
(512) 482-0701 telephone
(512) 480-0902 facsimile
Attorneys for Relators
Mark W. Stevens
markwandstev@sbcglobal.net
Attorney at Law
P.O. Box 8118
Galveston, TX 77553
(409) 765-6306 telephone
(409) 765-6469 facsimile
Attorney for Respondent
/s/ John B. Dahill
John B. Dahill
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CERTIFICATE OF COMPLIANCE
I certify that this computer-generated Amicus Curiae Brief in Support of Relators
contains 2,306 words and complies with TEX. R. APP. P. 9.4.
/s/ John B. Dahill
John B. Dahill
Page -14-
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
Combined Opinion