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
8/20/2015 3:48:18 PM
CHRISTOPHER PRINE
CLERK

No. 01-15-00583-CV

In the First Court of Appeals FILED IN
1st COURT OF APPEALS
THE HONORABLE MARK HENRY,COUNTY JUDGE HOUSTON,
OF TEXAS
8/20/2015 3:48:18 PM
GALVESTON COUNTY, CHRISTOPHER A. PRINE
Clerk

Appellant

v.

THE HONORABLE LONNIE COX,

Appellee

From the 56th Judicial District Court of
Galveston County, Texas, Cause No. 15CV0583

OBJECTION TO SECOND AND “FINAL”
MOTION TO EXTEND TIME

And

RENEWED MOTION TO ENFORCE
TEMPORARY INJUNCTION UNDER TRAPs 29.3 and 29.4

TO THE HONORABLE FIRST COURT OF APPEALS:

Appellee and this counsel would ordinarily not bother the Court with

objections to a motion for extension. However, this case and the present motion,

however, are different. The most recent motion is not only a transparent attempt at

tactical delay, but outright financial extortion of one or more trial judges in

Galveston County. See Exhibit “G”, extract of August 19, 2015 County

1
Commissioners Court Meeting. The traditional principles of forbearance no

longer apply to this dispute.

Background

Compliance with the injunction of July 6, CR 239 ff, was initially half

hearted, with the Director of Justice Administration Bonnie Quiroga only gradually

given keys, computers and a promise of pay to be delivered on July 21.

Then, on July 14, 2015, Mr. Joseph Nixon of the firm of Beirne Parson &

Maynard entered as counsel and declared that Appellant would ignore the

injunction. See letter of Joseph Nixon, July 14, 2015, Exh. A. Thereafter, Ms.

Quiroga’s pay was denied, her computer access cut off, her phone cut off, and she

was ousted from her previous quarters to a subsidiary room on the third floor of the

Galveston County Justice Center.

On July 30, 2015, Counsel Nixon sent a letter (Exh. D) inviting Appellee

Cox to “hire” a justice administrator at the same salary –slightly over $63,000—

which the trial court had found to be arbitrary and a deliberate attempt to control

the hiring process. CR 329, 333, p. 4, para. 4 (“…Respondent Henry abandoned

his plan to force a hand-picked candidate as the judiciary’s chief administrative

officer, yet, used the ability to set the slary for the new position at a sufficiently low

salary salary to continue to control the hiring process.”)

2
 A few weeks later, County HR Director Peri Bluemer emailed Judge Cox

with a similar suggestion. See Exh. E, Bluemer email of August 11, 2015. That

email and its attachment from County Legal Director Robert Boehmer contain a

suggestion that the County might artificially superimpose bureaucratic procedures

to delay and the “reappointment” of individuals to the same jobs they presently

hold but under different titles. The implicit threat is that some individuals might

be without jobs and without pay, and publicly held hostage along with the

administration of court functions in this dispute.

In response, this counsel sent a letter (Exh. F) to Mr. Nixon at 9:20 a.m.

August 19, 2015, advising that the proposals of Ms. Bluemer and Mr. Nixon were

violative of the injunction, and suggesting that any such actions should be

preceeded by application to the trial court—at which time evidence could be heard

regarding all violations to date of the inujunction. The present Motion followed

about an hour later, at 10:48 a.m.

No Basis for “”Extension”

The August 19 Motion for a “Final” Extension does not even try to satisfy

the requirements of TRAP 10.5. The Reporter’s record was filed on July 17, 2015.

Appellant’s counsel has previously indicated that he had an important briefing

commitment at the end of July.

3
 Appellee accepts for these purposes and for the sake of argument that

Appellant’s counsel was “out of the office” and presumably out of commission for

all of August 10. That single day is not a significant factor when one has about 20

working days to prepare a brief in an accelerated appeal.

Appellant’s counsel cites no other specific assignments or deadlines which

have absorbed his time.

However, since July 31, 2015, Appellant and his counsel have attempted to

delay the progress of this accelerated appeal. See, e.g., the tediously captioned

“Motion to Abate, Etc.” filed on August 3, 2015.

Since July 31, Appellant has had 13 working days --arguably minus one for

a dental appointment out of the office—and has nine days remaining. One can do

a lot of briefing in 20 days, yet Appellant insists now on an extension taking the

briefing deadline past September 1.

Why? The answers are revealing and disturbing.

Tactical Delay—SB 1913

From the email of Ms. Bluemer and the attached email of Legal Director

Robert Boehmer, it is apparent that Appellant wants to delay briefing past the

initial effective date of SB 1913. Senate Bill 1913 as signed codifies the

constitutional authority of the trial judges to select staff personnel for the position

of Justice Administrator and similar, but retains—as it must under the

4
constitution—funding authority with the Commissioners’ Court. It appears to be

the objective of Appellant, per Ms. Bluemer’s missive, to superimpose procedures

to hobble the “appointment” of people who are and have been doing the work in

question for some time, i.e., to control the hiring process and further to control that

process by the imposition of arbitrary and unreasonably low salaries. See

Temporary Injunction, CR CR 329, 333, p. 4, Para. 6.

Lawyers’ Money

An even less inspiring reason is the bonanza which this case has become for

Appellant’s and numerous counsel. See Exhibit C, a reprint of the Galveston

County Daily News Article of Sunday, August 8 2015. To date, the County has

spent c. $177,000 in the mandamus proceeding and the case now on appeal. In a

two week period, the firm of Baker & Hostetler had seven attorneys working on

this case, and has been paid c. $147,000. A single attorney working at $550 per

hour charged and was paid c. $73,000 for his work over a two week period-- all of

which produced the Temporary Injunction of July 6.

Judges’ Money

The response of Appellant to the public outcry over the fees paid to lawyers

has been to violate wholesale the separation of powers clause by attempting to

threaten one or perhaps all of Galveston’s trial judges with economic retaliation.

5
 At the Commissioners’ Court meeting of Wednesday, August 19, Appellant

and other Commissioners openly speculated about denying the trial judges the

$18,000 per year supplement which has been paid for some years—ostensibly to

defray the legal fees mentioned above. See Transcript, attached as Exhibit G

hereto, and in particular pp. 5-6:

COMMISSIONER GIUSTI: How Much?
COMMISSIONER DENNARD: That’s the discussion. I think one factor
is the amount of attorneys fees that we’re incurring.
COMMISSIONER GIUSTI: We’re incurring more attorney’s fees because
you are having for [sic] trials.
JUDGE HENRY: No. We are incurring attorney’s fees because one of them
sued me.
COMMISSIONER GIUSTI: Oh, those fees. This could kind of look pretty
Retaliatory, huh?
COMMISSIONER DENNARD: I don’t think it’s a question of retaliatory. I
think it’s a question of somebody has got to pay the bill. So where are those
going to come from. Are they going to come out of general revenues or are
they going to come out of the – come from the folks who are responsible for
the costs?

The proceedings of August 19, Exhibit G, reveal the objective of

Appellant—to turn trial judges into subservient vassals of the Commissioners

Court. If one reads the transcript as favoring selective denial of a supplement to

only one or a few of the trial judges, it would be a clear instance of direct and

unconstitutional influence. On the other hand, if the $18,000 supplement were

denied to all judges, it would simply be collective extortion against the entire

judiciary of Galveston County.

6
 Renewed Motion for Enforcement
Under TRAPs 29.3 and 29.4

Until now, this Honorable Court appears to have indulged in an assumption

of good faith and responsible behavior on the part of Appellant and those acting

with him. That assumption is no longer warranted. It is now even more obvious

that Appellant Henry and others are trying to “game” the system by

administratively dismantling the Justice Administration System and superimposing

administrative requirements and financial sanctions which will hold the trial courts

and the justice system hostage.

Prayer

The Court is urged to promptly DENY the latest Motion by Appellant, and

further is re-urged to refer this case to the District Court for enforcement, or

alternatively for hearings, receipt of evidence, and a report to this Court of

Appeals, under TRAPs 29.3 and 29.4.

Respectfully submitted,
/s/ Mark W. Stevens
Mark W. Stevens
TBN 19184300
P. Box 8118
Galveston, Texas 77553
409.765.6306
Fax 409.765.6459
Email: markwandstev@sbcglobal.net
Counsel for
th
Lonnie Cox of the 56 Judicial District Court

7
 Certificate of Compliance

The foregoing instrument in relevant parts contains 1,334 words in Times
New Roman Type, with text double spaced and extended quotes in 2.0 spacing.

/s/ Mark W. Stevens

Mark W. Stevens

Certificate of Service

The foregoing was efiled and e-mailed PDF to Mr. Edward Friedman on
August 20, 2015 at efriedman@bakerlaw.com, and also to James P. Allison
(j.allison@allison-bass.com) ; J. Eric Magee (e.magee@allison-bass.com); and
Phillip Ledbetter (p.ledbetter@allison-bass.com) and N. Terry Adams, Jr. at the
firm of Beirne Maynard Parsons LLP (tadams@bmpllp.com) . An additional copy
of this instrument has been served via email to Mr. Joseph M. Nixon at the firm of
Bierne, Maynard & Parsons (jnixon@bpmllp.com) and to James P. Allison at
j.allison@allison-bass.com.
/s/ Mark W. Stevens

Mark W. Stevens

Exhibits

A Joseph Nixon Letter of July 14, 2015
B Mark Henry Memo to County Auditor July16, 2015
C Galveston County Daily News Article, August 8, 2015
D Joseph Nixon Letter of July 30, 2015
E Peri Bluemer email of August 11, 2015
F Mark W. Stevens Letter to Mr. Nixon of August 19, 2015
G Transcript of Commissioners Meeting of August 19, 2015

8
 BEIRNE, MAYNARD & PARSONS. L.L.P.
1300 POST OAK BOULEVARD
SUITE 2500
HOUSTON, TEXAS 77056-3000

(713) 62;3-0887 DIRECT D,AL: (71;3) 871-6609
EMAIl...: JN1XQJ/toI@BMPLLP,CON
FAX (713) 960-15':7
SOARf:) CERTIFIED
CiVIL TRIAL LAW
TEXAS SOARO OF L.EGAL SP£CIAl..IZAT'ON

July 14, 2015

Mark W. Stevens VIA FIRST CLASS MAIL,
Attorney at Law CERTIFIED MAIL,
P.O. Box 8118 FACSIMILE (409) 765-6459, AND
Galveston, Texas 77553 EMAIL markwandstev@sbcglobal.net

Re: Cause No. 15CV0583; The Honorable Lonnie Cox, Local Administrative Judge,
Galveston Co. v. The Honorable Mark Henry, County Judge, Galveston County;
in the 56th Judicial District Court of Galveston County, Texas

Dear Mr. Stevens:

I now represent the Honorable Mark Henry in the above-referenced case and have
attached for your review a file-stamped copy of the Notice of Appeal which was filed on July 13,
2015. Because the appeal is based upon the court's denial of the plea to the jurisdiction and the
trial court's incorrect assumption of subject matter jurisdiction, the entire proceeding, including
the application of the temporary injunction, is stayed pursuant to Tex. Civ. Prac. & Rem. Code §
51.014(aX8) and (b). You should further note that the filing of the notice of appeal suspended
the temporary injunction pursuant to Tex. R. App. P. 29.1 (b) and Tex. Civ. Prac. & Rem Code §
6.001(b)(4).

Accordingly, Ms. Bonnie Quiroga will no longer be allowed access to Galveston County
facilities, office or infrastructure other than that which is accessible to the public. She is, of
course, not considered an employee of the County, has no job function or duties, and will not
receive a salary or benefits from the County.

I realize it is not necessary for you to remind your client that this matter is no longer in
either his jurisdiction or the jurisdiction of the trial court, if it ever was. Accordingly, any
attempt to unilaterally enforce the temporary injunction by way of a new, ex parte verbal or
written order will be met with the most rigorous of opposition utilizing all lawful means
necessary to protect the civil rights of those who are County employees.

If you have any questions, please do not hesitate to contact me.

Very truly yours,

~14~[A,~

Joseph M. Nixon

2198919v.19999991114011
EXHIBIT "A" P. 1/4

A
 Flled: 7113/20158:13:35 PM
JOHN D, KINARD - District Clerk
Galveston County, Texas
Envelope No. 6048080
By: Shaiija Dixit
7/14120159:35:54 AM

CAUSE NO, 15-CV-0583

THE HON. LONNIE COX § IN THE DISTRICT COURT OF
§
PLAINTIFF, §
§
v. § 56TH JUDICIAL DISTRICT
§
THE HON. MARK HENRY, COUNTY §
JUDGE OF GALVESTON COUNTY, §
§
DEFENDANT. § GALVESTON COUNTY, TEXAS

NOTICE OF APPEAL

Defendant, The Honorable Mark Henry, County Judge of Galveston County, files

this Notice of Appeal, pursuant to section 51.014(a)(8) of the Texas Civil Practice and

Remedies Code and Rules 25.1 and 26.I(b) of the Texas Rules of Appellate Procedure,

and would respectfully show the Court as follows:

1. Defendant, The Honorable Mark Henry, County Judge of Galveston County

desires to appeal this Court's Order, signed June 23, 2015, that denies his Plea to the

Jurisdiction in the above-captioned matter.

2. Defendant appeals to the First or Fourteenth Court of Appeals in Houston

Texas. Defendant believes this interlocutory appeal should go to the First Court of

Appeals because Defendant has previously filed a related (a) original proceeding, and (b)

interlocutory appeal in the First Court of Appeals- both arising from this same case:

a No. 0 1-14-00820-CV; In re Galveston County Judge Mark Henry, et
al.; and

b. No. Ol-15-00583-CV; The Honorable Mark henry, Judge of
Galveston County v. The Honorable Lonnie Cox.

EXHlBIT ttA') P. 2/4
 3. A copy of this Notice of Appeal has been served on all parties to the

proceeding from which this interlocutory appeal is taken. See TEX. R. APP. P. 2S.l(e),

28.1 (b).

4. This interlocutory appeal is an accelerated appeal under Rule 28.1 of the

Texas Rules of Appellate Procedure and is not a parental termination or child protection

case. TEX. R. ApP. P. 28.1, 25.1(d)(6).

5. This interlocutory appeal results in an automatic stay of all proceeding in the

trial cOUli during the pendency this appeal. TEX. Crv. PRAC. & REM CODE §51.014(b),

(c).

Respectfully submitted,

BAKER & HOSTETLER LLP
By: //s/ Edward L. Friedman
Edward L. Friedman
Texas Bar No. 07462950
efriedman@bakerlaw.com
811 Main Street
Suite 1100
Houston, Texas 77002~6111
Telephone: 713.751.1600
Facsimile: 713.751.1717
Attorney tor Defendant
The Honorable Judge Mark Henry

Exhibit "'Nfl, 3/4

2

 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Notice of Appeal was
sent to all counsel of record by email and facsimile on this 13th day of July, 2015 as
follows:

/s/ Edward L. Friedman
Attorney for Defendant
The Honorable Judge Mark Henry

EXhibit flAil P. 4/4

3

 MEMORANDUM

TO: Kevin Walsh,
Galveston County Treasurer

FROM: Mark Henry,
Galveston County Judge

DATE: July 16,2015

RE: Payroll for Unfunded and Unauthorized County Positions

As you are aware, the County may not payor authorize salary disbursements to
individuals who are neither county employees nor hold positions for which the county has not
authorized payment. I have attached for your review a copy of the certified minutes from the
Commissioner's Court meeting held on June 13, 2015. As you can see from these minutes, the
Commissioner's Court voted for and issued an order removing from the budget the salary and
position of Director of Judicial Administration. Previously, Ms. Bonnie Quiroga had been
dismissed from that position, also by vote and order passed by the Commissioner's Court.

Although ancillary orders from District Courts have issued, those orders are suspended
by the application of Tex. Civ. Rem. & Prac. Code §§ 6.001(b)(4) and 51.014(a)(8) and (b) and
Tex. R. App. 29.1 (b). Additionally, the Commissioner's Court has not voted to reinstate Ms.
Quiroga, her salary, or the position of Director of Judicial Administration. As one member of the
Commissioner'S Court may not revoke or reverse the express order of a prior decision of the
Commissioner's Court, the county should not disburse any payment, salary or funds whatsoever
to Ms. Quiroga until such time as the entire Court has voted and ordered to do so. To date, a vote
to alter the Commissioner's Court orders ofJune 13, 2015 has not occurred.

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 BEIRNE, MAYNARD & PARSONS, L.L.P.
1300 POST OAK BOULEVARD
SUITE 2500
HOUSTON, TEXAS 77056-3000

,JOSEPH M. NIXON
(713) 623-0887 DIRECT D,AL: (713) 871-6809
EMAIL: JNIXON@BMPLLP.COM
FAX (713) 960-1527
BOARD CERTIFIED
CIVIL TRIAL LAW
TF"A5 BOARD Of' LEGAL SPECIALIZATION

July 30,2015

Mark W. Stevens VIA FIRST CLASS MAIL,
Attorney at Law CERTIFIED MAIL, AND
P.O. Box 8118 EMAIL markwandstev@sbcglobal.net
Galveston, Texas 77553

Re: Cause No. 15CV0583; The Honorable Lonnie Cox, Local Administrative Judge,
Galveston Co. v. The Honorable Mark Henry, County Judge, Galveston County;
in the 56 th Judicial District Court of Galveston County, Texas

Dear Mr. Stevens:

I am writing so that you might remind your client in this case that he has the opportunity
to appoint a candidate of his choice, without approval or consideration of the Galveston County
Commissioner's Court, to the following positions:

Court Manager Annual salary: 22(E) $63,695
Administrative Specialist Annual salary: 18(A) $42,907
Administrative Coordinator Annual salary: 15(A) $36,998
Administrative Assistant Annual salary: 14(A) $35,215
Administrative Officer Annual salary: 19(A) $45,079.

On June 13,2015, the Commissioner's Court created positions at your client's request.
This is at least the second request of your client to fill these positions.

Please take note of your client's sworn testimony as to whether there was a critical
current need for filling the position of Director of Justice Administration (annual salary up to
$120,000) which the County tenninated in July, 2014:

Q: (By Mr. Friedman) The District Judges have not had or at least - the
District Judges have not had anyone in the position of the Director of
Justice Administration since July 24 of2014; is that right?

A: [By Judge Cox] We've been operating without that person, yes.

o

Mr. Mark Stevens
July 30, 2015
Page 2

Q: And the Court Systems didn't shut down, didn't collapse. The Court
Systems continued to operate and maintain efficiently, correct?

A. The Court Systems continued to operate, yes.

Hearing transcript Vol. 2, p. 118, line 20 to p. 117, line 4 (June 23,2015).

As Ms. Bonnie Quiroga remains without a position with Galveston County, your client
may appoint Ms. Quiroga to any of the above-referenced positions.

Very truly yours,

~~7

2206151v.1005032/108027
From: Bluemer, Peri

Sent: Wednesday, August 12, 2015 10:36 AM

To: Cox, Lonnie; Sullivan, Kim; Roberts, Barbara; Grady, Patricia; Grady, John; Slaughter, Michelle; Ellisor, John; Neves,

Kerry; Darring, Anne; Ewing, Jack

Cc: Boemer, Bob

Subject: FW: Court administrator system background

Hello:

Based on the information I received from the Legal department (attached and below), I wanted to reach out to all of

you.

The hiring process takes some time. Therefore, in order to ensure your ability to place employees into the
pOSitions effective September 1st, I encourage you to begin the interview and hiring process now.
The court administrator system goes into effect in just three weeks.
I want to be very clear that The Human Resources Department is available to assist your efforts. We offer
resume screening, pre-interviews and full interview packets as well as reference checking.
And, if you would like to consider any existing employees for these positions, we have a great INTERNAL
Candidate interview tool as well. This tool is optional, but I wanted you to know it is available for you.
Internal candidates can interview during work hours.

Please let me know if there is anything we can do to assist with this process.
~Peri

Peri A. Bluemer
thief Human Resources Officer
t;alveston County, Texas

----....... ---------~--~------.

[

Peri.bluemer@co.galveston.tx.us
722 Moody, Galveston, Texas 77550 I if 409-770-5350 I Fax: 409-766-4599ICell: 409-692-5273

Galveston County Human

Resources

Core Purpose
We Want "fa Be llle Bl!st We GII'I Be fn Making: PQ.opi es'
livel> E~s,ier,

Strategies
o Follow Thro!.leh To The Resohrtiol1 EveoyTime
o Consistently Rc"'C