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
9/11/2015 3:05:58 PM
CHRISTOPHER PRINE
CLERK

No. 01-15-00583-CV
__________________________________________
FILED IN
1st COURT OF APPEALS
IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS
AT HOUSTON, TEXAS 9/11/2015 3:05:58 PM
_______________________________________
CHRISTOPHER A. PRINE
Clerk
THE HONORABLE MARK HENRY, COUNTY JUDGE
OF GALVESTON COUNTY,
Appellant,
v.
THE HONORABLE LONNIE COX,
Appellee.
_____________________________________________________

On Interlocutory Appeal from the 56th District Court, Galveston County, Texas
__________________________________________________________
APPELLANT’S MOTION TO SET ASIDE THE TEMPORARY
INJUNCTION AT ISSUE BECAUSE IT BECAME
MOOT ON APPEAL AND TO DISMISS THE CAUSE
_______________________________________________________________

TO THE HONORABLE FIRST COURT OF APPEALS:

Appellant, The Honorable Mark Henry County Judge of Galveston County,

files this Motion to Set Aside the Temporary Injunction at Issue Because it Became

Moot on Appeal and to Dismiss the Cause, and would show the Court as follows:

Background

1. This interlocutory appeal concerns a temporary injunction that District

Court Judge Lonnie Cox obtained on behalf of Ms. Bonita Quiroga against County

Judge Mark Henry of Galveston County. In a nutshell, the temporary injunction

order directed County Judge Mark Henry to:
 (i) reinstate Ms. Quiroga’s employment as the court administrator
for Galveston County, with only court-related responsibilities
and reporting to only the administrative judge, and

(ii) pay Ms. Quiroga her old salary of $113,000 that she made for a
different administrator job with greater responsibilities. (CR.
337, 339 [Nos. 1, 2, & 5]); (CR. 254, 337.)

2. Because the Commissioners Court of Galveston County had already

authorized Judge Cox, as the administrative judge, to appoint Ms. Quiroga to be

the new court administrator for the district and statutory county courts in Galveston

County, this injunction case boils down to a salary dispute. (RR. 3:204-205); (RR.

4:113-114); (App. G, H to Appellant’s Br.). Judge Cox thinks the salary range for

the new court administrator position should be $85,000-$120,000. (RR. 3:113-114)

(RR. 7:DX. 44.) The Commissioners Court, on the other hand, set the salary range

at $57,705-$63,695, in order to account for the decreased job responsibilities. (RR.

3:204-205, 215-216); (RR. 4:113-114, 115); (App. G to Appellant’s Br.)

3. Judge Cox therefore sought and obtained injunctive relief claiming

that County Judge Mark Henry and the Commissioners Court of Galveston County

had no authority to hire or fire Ms. Quiroga or to set her salary as the court

administrator. These issues are now controlled by the new amendments to Section

75.401 of the Government Code that became effective on September 1, 2015. TEX.

GOV’T CODE § 75.401 (Vernon 2015), 2015 Tex. Sess. Law Serv. Ch. 966

2
(S.B.1913) (Vernon 2015) (Ex. A). As a result, on September 1, the temporary

injunction became moot during this appeal.

New Section 75.401 of the Government Code

4. New Section 75.401 now provides specific statutory authority for a

court administrator position in a county like Galveston County for the district and

statutory county courts collectively. TEX. GOV’T CODE § 75.401 (Vernon 2015)

(Ex. A.) Under the new statute, the court administrator position is to be appointed

by the judges of the courts served by that position and serves at the pleasure of

those judges. TEX. GOV’T CODE § 75.401(c) (Vernon 2015) (Ex. A.). Furthermore,

the “salary range” for the court administrator position under new Section 75.401 is

to be “set by the commissioners court.” TEX. GOV’T CODE § 75.401(d) (Vernon

2015) (Ex. A.).

The temporary injunction has become moot on appeal.

5. Accordingly, the temporary injunction that directs County Judge Mark

Henry to reinstate Ms. Quiroga’s employment as the court administrator for

Galveston County has become moot during this appeal because the judges in

Galveston County served by that position now have the exclusive power under the

statute to appoint Ms. Quiroga to be the new court administrator—not County

Judge Mark Henry. TEX. GOV’T CODE § 75.401(c) (Vernon 2015) (Ex. A.).

3
 6. The temporary injunction that directs County Judge Mark Henry to

pay Ms. Quiroga her old salary of $113,000 for the court administrator position has

also become moot during this appeal because the new statute now clearly gives the

Commissioners Court and County Judge Mark Henry the exclusive authority to set

the salary range for the court administrator—not Judge Cox or the judges served

by that position. TEX. GOV’T CODE § 75.401(d) (Vernon 2015) (Ex. A.).

7. In anticipation of new Section 75.401 becoming effective on

September 1, the Commissioners Court of Galveston County provided as follows

in its Order of June 13, 2015:

The Texas Legislature has enrolled Senate Bill 1913, which
would modify Texas Government Code Section 75.401 in a
manner that authorizes the appointment of collective
administrative personnel (“Court Administrator”) for both
county and district courts under that chapter. Following any
legal effect of such amendment, Galveston County
Commissioners Court would be empowered to authorize
appointment of a court administrator in accordance with such
statutory changes.
...
IT IS FURTHER ORDERED that if S.B. 1913, recently enrolled
by the Texas Legislature, is enacted into law, then effective on
September 1, 2015; the above-described position of Court
Manager shall be retitled as Court Administrator under Texas
Government Code Section 75.401; the “salary range” for the
Court Administrator position, as required by S.B. 1913, shall be
22(A) $57,705 through 22(E) $63,695; and the other
aforementioned positions shall be transferred to the Court
Administrator’s office. Upon creation of a court administrator’s
office, the Court Administrator and subordinate staff shall report

4
 to the district courts and statutory courts collectively. (RR.
7:DX. 52:1, 5-6); (App. G. to Appellant’s Br.)

The temporary injunction should be set aside and this injunction suit and
cause dismissed in all things
8. Therefore, because new Section 75.401 took effect on September 1,

the temporary injunction in this case no longer has a practical effect on an existing

controversy and the temporary injunction has become moot on appeal. In this

situation, the Texas Supreme Court has instructed as follows:

‘The rule has long been established in this court that when a
case becomes moot on appeal, all previous orders are set aside
by the appellate court and the case is dismissed. … When the
appeal is from an order granting a temporary injunction, and
that phase of the case becomes moot on appeal, the same rule
applies. The proper order is to set aside all orders pertaining to
the temporary injunction and dismiss that portion of the case,
leaving the main case still pending.’

Guajardo v. Alamo Lumber Co., 317 S.W.2d 725, 726 (Tex. 1958) (quoting Texas

Foundries v. International Moulders & Foundry Workers’ Union, 248 S.W.2d 460

(Tex.)); see also Cameron v. Saathoff, 345 S.W.2d 281, 282 (Tex. 1961).

9. As applied here, the proper disposition is for the Court to now set

aside the temporary injunction order that forms the basis of this interlocutory

appeal, dismiss the suit below that relates to the temporary injunction, and dismiss

this cause. Guajardo, 317 S.W.2d at 726; see also Cameron, 345 S.W.2d at 282.

Because Judge Cox did not plead a recognized cause of action below, the dismissal

5
should be a complete dismissal of the underlying injunction suit in all things and a

corresponding dismissal of this cause.1 (CR. 271-73.)

WHEREFORE, PREMISES, CONSIDERED, Appellant, The Honorable

Mark Henry, County Judge of Galveston County respectfully requests the Court to

grant this Motion in all things, set aside the temporary injunction order at issue

because it has become moot during this appeal, dismiss the underlying injunction

suit in all things, and correspondingly dismiss this cause. Appellant additionally

prays for such other and further relief to which he may be justly entitled.

Respectfully submitted,
BEIRNE, MAYNARD & PARSONS, L.L.P.
By: /s/ N. Terry Adams, Jr.
N. Terry Adams, Jr.
Texas Bar No. 00874010
tadams@bmpllp.com
Joseph M. Nixon
Texas Bar No. 15244800
jnixon@bmpllp.com
James E. “Trey” Trainor
Texas Bar No. 24042052
ttrainor@bmpllp.com
1300 Post Oak Blvd, Suite 2500
Houston, Texas 77056
(713) 623-0887 (Tel)
(713) 960-1527 (Fax)
Counsel for Appellant

1
Judge Cox only alleged contempt against County Judge Mark Henry for not following his two
void sua sponte orders or the void TRO and only sought injunctive relief in his original and
amended petitions. (CR. 9, 271-73.)
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 CERTIFICATE OF CONFERENCE

In accordance with TEX. R. APP. P. 10.1(a)(5), the undersigned counsel for

Appellant spoke with Mr. Mark Stevens, counsel for Appellee, today by telephone

regarding this Motion and Mr. Stevens indicated that Appellee is opposed to this

Motion being granted.

/s/ N. Terry Adams, Jr.
N. Terry Adams, Jr.

CERTIFICATE OF SERVICE

I hereby certify that I have complied with the Texas Rules of Appellate

Procedure and the Local Rules of this Court and the foregoing Response has been

electronically filed and served on all counsel of record in accordance with these

Rules on this the 11th day of September, 2015.

Mark W. Stevens
P.O. Box 8118
Galveston, Texas 77553
markwandstev@sbcglobal.net
/s/ N. Terry Adams, Jr.
N. Terry Adams, Jr.

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Ex. A

8
COURT ADMINISTRATOR IN CERTAIN COUNTIES, 2015 Tex. Sess. Law Serv. Ch....

2015 Tex. Sess. Law Serv. Ch. 966 (S.B. 1913) (VERNON’S)

VERNON’S TEXAS SESSION LAW SERVICE 2015

Eighty-Fourth Legislature, 2015 Regular Session

Additions are indicated by Text; deletions by Text.
Vetoes are indicated by Text ;
stricken material by Text .

CHAPTER 966
S.B. No. 1913
COURT ADMINISTRATOR IN CERTAIN COUNTIES

AN ACT
relating to a court administrator in certain counties.

Be it enacted by the Legislature of the State of Texas:

SECTION 1. The heading to Section 75.401, Government Code, is amended to read as follows:

<< TX GOVT § 75.401 hd. >>

Sec. 75.401. COURT ADMINISTRATOR SYSTEM FOR DISTRICT AND STATUTORY COUNTY COURTS IN
CERTAIN COUNTIES.

SECTION 2. Sections 75.401(a), (b), (c), (d), and (e), Government Code, are amended to read as follows:

<< TX GOVT § 75.401 >>

(a) In a county that has more than one district court or statutory [county criminal court or more than one] county court [at
law having both criminal and civil jurisdiction], those courts may establish and maintain, on approval of the commissioners
court, a court administrator system.

(b) The judges of the district courts [county criminal courts] or the statutory county courts may [at law having both
criminal and civil jurisdiction shall] by local rule designate local court divisions and the duties of the court administrator for
each division, if applicable. The court administrator shall cooperate with regional, presiding, and local [the] administrative
judges and state agencies having duties relating to the operation of the courts to promote uniform and efficient administration
of justice.

(c) The court administrator is appointed by the judges of the district courts or [county criminal courts or] the statutory
county courts served by the court administrator. The court administrator [at law having both criminal and civil
jurisdiction and] serves at the pleasure of those [the] judges.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
COURT ADMINISTRATOR IN CERTAIN COUNTIES, 2015 Tex. Sess. Law Serv. Ch....

(d) A court administrator is entitled to reasonable compensation, as determined by the judges served and in the salary
range for the position, as set by the commissioners court.

(e) The judges of the courts served by the court administrator, with the approval of the commissioners court, shall
appoint appropriate staff and support personnel according to the needs of the local jurisdiction.

SECTION 3. This Act takes effect September 1, 2015.

Passed the Senate on May 8, 2015: Yeas 31, Nays 0; the Senate concurred in House amendment on May 30, 2015: Yeas
31, Nays 0; passed the House, with amendment, on May 27, 2015: Yeas 144, Nays 0, two present not voting.

Approved June 18, 2015.
Effective September 1, 2015.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2