the Honorable Mark Henry, County Judge of Galveston County v. the Honorable Lonnie Cox, Judge of the 56th District Court of Galveston County

ACCEPTED 01-15-00583-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 7/7/2015 9:39:16 AM CHRISTOPHER PRINE CLERK NO. __________________ In the Court of Appeals FILED IN for the 1st COURT OF APPEALS HOUSTON, TEXAS First District of Texas 7/7/2015 9:39:16 AM CHRISTOPHER A. PRINE Clerk THE HONORABLE MARK HENRY, COUNTY JUDGE OF GALVESTON COUNTY, Appellant, v. THE HONORABLE LONNIE COX, Appellee. From the 56th Judicial District Court of Galveston County, Texas, Cause No. 15-CV-0583 APPELLANT’S EMERGENCY MOTION FOR STAY Edward L. Friedman James P. Allison State Bar No. 07462950 Texas Bar No. 01090000 efriedman@bakerlaw.com j.allison@allison-bass.com BAKER & HOSTETLER LLP J. Eric Magee 811 Main Street, Suite 1100 Texas Bar No. 24007585 Houston, Texas 77002 e.magee@allison-bass.com Telephone: 713.751.1600 Phillip Ledbetter Facsimile: 713.751.1717 Texas Bar No. 24041316 p.ledbettcr@allison-bass.com ALLISON, BASS & MAGEE, L.L.P. A.O. Watson House 402 W. 12th Street Austin, Texas 78701 Telephone: 512.482.0701 Facsimile: 512.480.0902 Attorneys for Appellant EMERGENCY MOTION FOR STAY TO THE HONORABLE COURT OF APPEALS: The Honorable Mark Henry, County Judge of Galveston, Appellant, moves pursuant to Rules 29.1(b) and 29.3 of the Texas Rules of Appellate Procedure, for an emergency stay of a temporary injunction with which he cannot lawfully comply. A stay is needed to prevent contempt proceedings from being initiated based on that temporary injunction and to avoid further political discord between the administrative judges of Galveston County and the Galveston County Commissioners Court. 1 BACKGROUND FACTS Judge Henry is the County Judge of Galveston County. He presides over the five-member Galveston County Commissioners Court. Judge Cox is the presiding judge of the 56th Judicial District Court of Galveston County and the Administrative Judge of the Galveston County District Courts. 1Indeed, one journalist has described this case as “a separation-of-powers dispute of epic proportions.” See Angela Morris, Judges, Commissioners Fighting in Separation-of-Powers Brawl, Texas Lawyer, June 26, 2015, http://www.texaslawyer.com/id=1202730719716/Judges-Commissioners-Fighting-in- SeparationofPowers-Brawl#ixzz3eStNanng (emphasis added). 1 The legal dispute underlying this motion for stay centers on the commissioners court’s July 24, 2014 employment termination of Bonita Quiroga, a nonparty to this appeal or the injunction proceeding below. Prior to her discharge, Ms. Quiroga served as Galveston County’s Director of Justice Administration, a position that was initially created in 1995 and included duties related to both the legislative and judicial branches. Ms. Quiroga was appointed to that position by the commissioners court in 2000.2 At the time of her termination, Ms. Quiroga had thirteen (13) direct reports, nine (9) of whom performed services related to the legislative branch functions and five (5) of whom performed functions related to the judicial branch functions. Throughout her employment as Director, she was supervised by the 2 There is no statutory basis for the position of Director of Justice Administration. At the time the position was created in the county, Chapter 75 of the Texas Government Code did not authorize the Galveston County district courts to establish a court administration system or appoint a court administrator. See TEX. GOV’T CODE § 75.401, et seq. Furthermore, Ms. Quiroga was not an appointee of the judiciary pursuant to Chapter 151 of the Texas Local Government Code. She was also not employed under any statute by which the Director of Justice Administration served at the pleasure of the administrative district judge. See, e.g., TEX. GOV’T CODE § 52.041 (“An official court reporter is a sworn officer of the court and holds office at the pleasure of the court.”); TEX. GOV’T CODE § 74.101(b) (“Each court coordinator serves at the pleasure of the judge who appointed him.”); TEX. GOV’T CODE § 76.002 (community supervision and correction departments established and supervised by the district and statutory county court judges trying criminal cases). Rather, the position always reported to, and was under the supervision of, the County Judge and commissioners court. 2 commissioners court and—at all times—reported directly to the County Judge and commissioners court. Yet, Judge Cox contends that the mere fact that Ms. Quiroga performed some judiciary-related functions empowered him with the exclusive authority to make decisions regarding her employment (i.e., to hire and fire her). As a result, Judge Cox issued two ex parte orders seeking to undo Ms. Quiroga’s termination and initiated temporary injunction and contempt proceedings against Judge Henry. Notably absent as parties in the present lawsuit are any of the four commissioners of Galveston County or the commissioners court itself. During the protracted legal and political dispute over Ms. Quiroga’s termination, attempts were made to resolve the issue. One such endeavor culminated on May 12, 2015, when Judge Cox, along with the administrative judges for the Galveston County Courts at Law and Probate Court, submitted an application to the commissioners court, pursuant to section 74.103 of the Texas Government Code and Chapter 151 of the Texas Local Government Code, to create the position of Director of Court Administration, which would report to Judge Cox as the Administrative District Judge. The application asked the 3 commissioners court to create the position of Director of Court Administration, which would perform all of the judiciary-related duties previously performed by the Director of Justice Administration position, but none of the legislative-related duties previously performed by the Director. Judge Cox requested that the new position be paid within a salary range of $85,000 – $120,000 (the approximate salary Ms. Quiroga previously earned as Director of Justice Administration). On June 13, 2015, the commissioners court approved the new position of Director of Court Administration, but at a salary range between $57,705 and $63,695, which it determined was more commensurate for the newly-created position which had less duties and less direct reports than the Director of Justice Administration position. That same day, the commissioners court also provided several administrative staff support positions for the Director of Court Administration, each of these positions was created in the 56th Judicial District Court. The commissioners court recognized that Judge Cox could appoint whomever he chooses to the newly-created positions, specifically including Ms. Quiroga. Because the new Director of Court Administration position rendered the Director of Justice Administration 4 position substantially duplicative and unnecessary, the commissioners court abolished the latter position in the Justice Administration Department, and transferred funds associated with the salary and benefits for the former Director of Justice Administration position to the General Government Fund. Not content with the salary set by commissioners court for the Director of Court Administration position, Judge Cox initiated the instant action solely against Judge Henry. Judge Cox did not name the commissioners court or any of the four commissioners as a party to the litigation. In this action, Judge Cox sought and received an ex parte temporary restraining order and recently a temporary injunction against Judge Henry. Judge Cox also seeks a declaration of constructive contempt against Judge Henry for his purported violations of Judge Cox’s two ex parte orders. All this as part of Justice Cox’s endeavor to reinstate Ms. Quiroga as Director of Justice Administration—a position from which she was rightfully terminated a year ago and that no longer exists. After several days of evidence and argument, the Honorable Sharolyn Wood, presiding over the 56th Judicial District Court of 5 Galveston County, granted Judge Cox’s application for a temporary injunction. The trial court issued a prohibitive and mandatory injunction against Judge Henry under the guise of “return[ing] to the last, peaceful, uncontested status of July 23, 2014.” The temporary injunction requires Judge Henry “and all acting in concert with him” to reestablish the position of Director of Justice Administration, remove the legislative-related duties from that position, appoint Ms. Quiroga to the position, and set Ms. Quiroga’s salary at the same amount she was earning a year ago. Accordingly, the temporary injunction attempts to order Judge Henry to force the commissioners court—a nonparty to this suit—to recreate a position that no longer exists and, critically, to amend the Galveston County budget in order to transfer funds back into the Justice Administration Department to pay Ms. Quiroga the salary ordered by the court. (See Exhibit A). Importantly, during the hearing, counsel for Judge Henry requested a stay of the temporary injunction pending an interlocutory appeal of the order. Instead of conditionally granting the requested stay on the condition that a notice of appeal is filed in short order, Judge Wood denied the request outright. On the filing of Judge Henry’s notice 6 of appeal, the temporary injunction was automatically stayed pursuant to TEX. R. APP. P. 29.1(b) and TEX. CIV. PRAC. & REM CODE § 6.001. See Dallas v. North By West Entertainment, 24 S.W.3d 917, 918-19 (Tex. App.—Dallas 2000, no pet.) (holding that Rule 29 stays a temporary injunction appealed by a governmental entity); Enriquez v. Hooten, 857 S.W.2d 153, 154-55 (Tex. App.—El Paso 1993, no writ) (concluding that TEX. CIV. PRAC. & REM. CODE § 6.001 applies to county commissioners); Public Util. Comm’n v. Coalition of Cities for Affordable Util. Rates, 776 S.W.2d 221, 222 (Tex. App—Austin 1989, no writ) (holding that, when a state commission has the right under section 6.001 of the Texas Civil Practice and Remedies Code to supersede an order, the trial court cannot deny suspension of a temporary injunction). Therefore, Judge Wood abused her discretion by denying Judge Henry’s request to stay the enforcement of the temporary injunction. See, e.g., Dallas, 24 S.W.3d at 918 (rejecting arguments that trial court had discretion to deny government entities’ request to stay temporary injunction). 3 As 3 While this ground alone is sufficient to warrant a stay from this Court, in an abundance of caution, appellant sets forth the additional bases to support temporary relief and the compelling circumstances which establish the necessity of the requested stay from this Court. See TEX. R. CIV. P. 29.3; Lamar Builders, Inc. v. Guardian Savings & Loan Assoc., 786 S.W.2d 789, 790-91 (Tex. App.—Houston [1st Dist.] 1990, no writ). 7 such, an immediate stay of the temporary injunction by this Court is required in order to avoid contempt proceedings and to avoid further political discord. AN EMERGENCY STAY OF THE TEMPORARY INJUNCTION IS NECESSARY A. The temporary injunction attempts to order Judge Henry to obtain results that he has no lawful ability to achieve. Judge Henry is without authority to unilaterally (i) re-establish the Justice Administration Department, (ii) recreate the Director of Justice Administration position (but with fewer duties and responsibilities than it previously had), (iii) reinstate Ms. Quiroga to the position of Director of Justice Administration, and (iv) amend the budget to transfer funds into the Department of Justice Administration in order to pay Ms. Quiroga the salary ordered by the trial court. See Canales v. Laughlin, 214 S.W.2d 431, 455 (Tex. 1948) (“[T]he individual commissioners have no authority to bind the county by their separate action.”); Nueces Cnty. v. De Pena, 953 S.W.2d 835 (Tex. App.—Corpus Christi 1997, no writ) (same). The commissioners court, as a whole, is charged with the crucial responsibility of setting the annual county budget and may spend county funds only “in strict compliance with the budget.” TEX. LOCAL GOV’T CODE § 111.070; see also id. §§ 111.003, 8 111.0675; Gattis v. Duty, 349 S.W.3d 193, 203 (Tex. App.–Austin 2011, no pet.) (providing that the commissioners court may authorize an amendment to the original budget only after compliance with the strict procedures set forth by statute). It is worth noting that a failure to adhere to the statutory budget requirements would subject the commissioners court to legal action by the taxpayers or the county itself. See Gattis, 349 S.W.3d at 204-05. Again, Judge Henry possesses only one vote among the five- member commissioners court. See TEX. GOV’T CODE § 551.001, et seq.; TEX. LOCAL GOV’T CODE § 81.001, et seq. It is axiomatic that each member of the commissioners court must exercise his or her own independent judgment in voting on county matters and that Judge Henry alone cannot act for Galveston County. See Rowan v. Pickett, 237 S.W.2d 734, 738 (Tex. Civ. App.—San Antonio 1951, no writ) (“Furthermore, the individual commissioners have no authority to bind the county by their separate action. This requirement is not formal. It is substantial . . . that the members may have the benefit of the knowledge and opinions of the other members . . . .”); cf. Canales, 214 S.W.2d at 454 (Although commissioners are elected by 9 precinct, the “court is manifestly a unit, and is the agency of the whole county.’”) Thus, even if Judge Henry complies with the temporary injunction by setting the relevant issues on the commissioners court’s agenda and personally voting as ordered by the trial court, the remaining commissioners are not bound by the temporary injunction; of course, each commissioner, in exercising his independent discretion to vote in the best interest of the taxpayers, could reject the directives placed on Judge Henry by the temporary injunction. Moreover, the nonparty commissioners cannot be forced to comply with such order by threat of contempt. See Ex Parte Davis, 470 S.W.2d 647, 649 (Tex. 1971) (observing that injunctions are in personam in nature and thus not enforceable against nonparties to the action); accord TEX. R. CIV. P. 683 (providing that an injunction “is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of the order”). As a matter of law, the commissioners are not the “agents” “servants” or “employees” of the County Judge for which they can be held bound to 10 the terms of the temporary injunction. Indeed, each commissioner is an independent elected official. TEX. CONST. art. V, § 18(b). Judge Henry is simply without the ability to comply with the temporary injunction. He lacks the authority—unilaterally—to do what he is ordered to do under the temporary injunction. Because compliance is impossible, the specter of contempt looms large over Judge Henry, a stay of the temporary injunction should be granted. Further, a stay of the temporary injunction is essential in order to avoid further political rancor and discord among the Administrative Judges and the County Judge while this issue is resolved through this appeal. See In re Sheshtawy, 154 S.W.3d 114, 124-25 (Tex. 2004) (providing that courts of appeals “retain[] overarching power to stay any actions of the trial court … that may interfere with its jurisdiction or the subject matter of the appeal”). B. The temporary injunction does not maintain the status quo. Although the trial court’s rationale for entering the temporary injunction was to maintain the status quo, the temporary injunction does not preserve the status quo. The status quo is simply not preserved by the mandatory injunction which: (i) reinstates Ms. Quiroga to the 11 position of Director of Justice Administration, which she last held eleven months ago, (ii) orders that the legislative branch duties previously part of that position be excised from the duties of the position, and (iii) orders that Ms. Quiroga be paid the same salary she previously was paid as if the job duties and responsibilities remained the same. See Pharaoh Oil & Gas, Inc. v. Ranchero Esperanza, Ltd., 343 S.W.3d 875, 883 (Tex. App.—El Paso 2011, no pet.) (“A temporary mandatory injunction changes the status quo.”). Thus, the temporary injunction issued against Judge Henry, in addition to being impossible to comply with, does not maintain the status quo. C. The important constitutional issues and political discord arising from this dispute compel the issuance of a stay by this Court. Finally, the issues present here raise serious questions of constitutional significance relating to the Separation of Powers Doctrine and the relationship between the legislative branch of government (commissioners court) and the judicial branch of government (the Administrative District Judge of Galveston County), which compel the issuance of stay of the subject temporary injunction. The Texas Supreme Court has made clear that when, as in this case, a temporary 12 injunction of a trial court raises important constitutional and political questions that have potential statewide implications, a stay of the injunction during the pendency of the appeal is warranted. See Republican Party of Tex. v. Dietz, 924 S.W.2d 932 (Tex. 1996) (staying trial court’s temporary injunction that prohibited a political party from refusing to provide a booth at the parties’ convention due to the important constitutional and political issues presented); see also Special Order, In re State of Texas, Cause Nos. 15-0139 (Tex. Feb 19, 2015) (granting emergency stay motion regarding county clerk’s duty to enforce Texas marriage laws); Special Order, In re State of Texas, Cause Nos. 15-0135 (Tex. Feb 19, 2015) (same). Accordingly, the important constitutional issues giving rise to this interlocutory appeal, and the current rancor and political discord, further compel the issuance of a stay order from this Court. 4 CONCLUSION AND REQUEST FOR RELIEF For these reasons, Judge Henry requests this Court to issue a stay of enforcement of the temporary injunction from which this appeal is 4 Supra FN 1. 13 taken. Judge Henry further requests all other relief to which he may be entitled. Respectfully submitted, /s/ Edward L. Friedman Edward L. Friedman Texas Bar No. 07462950 efriedman@bakerlaw.com BAKERHOSTETLER LLP 811 Main Street, Suite 1100 Houston, Texas 77002 Telephone: 713.751.1600 Facsimile: 713.751.1717 James P. Allison Texas Bar No. 01090000 j.allison@allison-bass.com J. Eric Magee Texas Bar No. 24007585 e.magee@allison-bass.com Phillip Ledbetter Texas Bar No. 24041316 p.ledbettcr@allison-bass.com ALLISON, BASS & MAGEE, L.L.P. A.O. Watson House 402 W. 12th Street Austin, Texas 78701 Telephone: 512.482.0701 Facsimile: (512) 480-0902 Attorneys for Appellant 14 CERTIFICATE OF COMPLIANCE As required by the Texas Rules of Appellate Procedure, I certify that I have notified or made a diligent effort to notify all parties by expedited means (such as by telephone or fax) that this motion for temporary relief has been or will be filed. /s/ Edward L. Friedman Edward L. Friedman 15 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served to the following parties on this the 6th day of June, 2015, in accordance with the Texas Rules of Civil Procedure. /s/ Edward L. Friedman Edward L. Friedman 16 Exhibit A