ACCEPTED
01-15-00583-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/24/2015 8:27:13 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00583-CV
In the First Court of Appeals at Houston, Texas FILED IN -
1st COURT OF--APPEALS
- ----
HOUSTON, -
--- TEXAS
- - ----ID K ------
9/24/2015
- 8:27:13
- -- PM
---- VO ------
THE HONORABLE MARK HENRY,COUNTY CHRISTOPHER
JUDGE OF -- A. PRINE
----
----Clerk
GALVESTON COUNTY,
Appellant
v. FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
9/24/2015 8:27:13 PM
THE HONORABLE LONNIE COX, CHRISTOPHER A. PRINE
Clerk
Appellee
From the 56th Judicial District Court of
Galveston County, Texas, Cause No. 15CV0583
REPLY BRIEF OF APPELLEE
THE HON. LONNIE COX
Mark W. Stevens
TBN 19184300
PO Box 8118
Galveston, TX 77553
409.765.6306
Fax 409.765.6469
Email: markwandstev@sbcglobal.net
Counsel for Appellee The Hon. Lonnie Cox
1
Contents
Authorities………………………………………………………………..………3
Issues Presented…………………………………………………………..………9
Nature of the Case…………………………………………………………..…….9
Trial Court Information……………………………………………………………9
Course of Proceedings…………………………………………………………….9
Trial Court Disposition…………………………………………………………...10
Facts…………………………………………………………………..…………..11
Summary of the Arguments……………………………………………………….20
Arguments and Authorities………………………………………………………..21
“Mootness” (Responsive to Brief, p. 17)……………………………..……21
Subject Matter Jurisdiction (Responsive to Brief p. 20)……………..…….27
Legislative Immunity (Responsive to Brief p. 24)……………………...….29
No “Indispensable” Parties (Responsive to Brief p. 27)…………..……….31
Supervisory Jurisdiction (Responsive to Brief p. 30)…………...…………33
The Bond, the Writ and Judicial Defiance (Brief, p. 37)…………………..36
Irreparable Harm (Responsive to Brief, p. 45)……………………………..41
Conclusion………………………………………………………………………..42
Prayer…………………………………………………………………..…………42
Signature………………………………………………………………………….43
Certificate of Compliance…………………………………………………………43
Certificate of Service …………………………………………………………..…44
2
AUTHORITIES
Cases
Abbott v. Pollock, 946 S.W.2d 513 (Tex. App.—Austin 1997, writ denied)……..3
Andrade v. Venable, 372 S.W.3d 134, 137 (Tex. 2012)………………………….28
Associated Press v. Cook, 17 S.W.3d 447
(Tex. App.—Houston [1st Dist.] 2000, no pet.) ………………………………….30
Astoria Industries v. SNF, Inc., 223 S.W.3d 616
(Tex. App.—Fort Worth 2007, pet. denied)…………………..………………….24
Bartlett v. Cinemark USA, Inc., 908 S.W.2d 229
(Tex. App.—Dallas 1995, no writ)………………………………………………30
Bay Fin. Sav. Bank v. Brown, 142 S.W.3d 586, 590-91
(Tex. App.—Texarkana 2004, no pet.)……………………………………………39
Bayoud v. Bayoud, 797 S.W.2d 304, 312 (Tex. App.—
Dallas 1990, writ denied)…………………………………………………………40
Benavides Independent School District v. Guerra, 681 S.W.2d 246
(Tex. App.—San Antonio 1984, writ ref’d. n.r.e.)……………………………..…35
Bogan v. Scott-Harris, 523 U.S. 44 (1998)………………….………..…………..30
Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002)…………………………41
Commissioners Court of Lubbock Co. v. Martin, 471 S.W.2d 100
(Tex. App.—Amarillo 1971, writ ref’d. n.r.e.)……………………………………22
Commissioners Court of Shelby County v. Ross, 809 S.W.2d 754
(Tex. App.—Tyler 1991, no writ)………………………………………….…….35
Cooper v. Texas Gulf Industries, 513 S.W.2d 200 (Tex. 1974)……..…………31 ff
Cozzo v. Tangipahoa Parish Council, 279 F.3d 273 (5th Cir. 2002)………..…….30
3
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299 (Tex.2008)……………..…28
District Judges of the 188th Judicial District v.
County Judge Gregg County, Texas, 657 S.W.2d 908
(Tex. App.—Texarkana 1983, writ ref’d. n.r.e.)…………….…………………..22
Diversified, Inc. v. Turner, 650 S.W.2d 175 (Tex. App.—
Houston [14th Dist.] 1983, no writ)………………………………………………39
Ector County v. Hollman, 901 S.W.2d 687, 691 (Tex. App.—
El Paso 1995, no writ)……………………………………………..……………..27
Ector County v. Stringer,843 S.W.2d 477 (Tex. 1992)…………………………..34
Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979)…………………..…23
Ex parte Barnett, 600 S.W.2d 252(Tex.1980)………………………….…………37
Ex Parte Johnson, 654 S.W.2d 415 (Tex. 1983)………………………………….33
Ex Parte Lesher, 651 S.W.2d 734 (Tex. 1983)………………………………...…39
Ex parte Pryor, 800 S.W.2d 511(Tex.1990)…………………………………...…37
Finance Commission of Texas v. Norwood, 418 S.W.3d 566 (Tex. 2013)…….…27
Goodwin v. Goodwin, 456 S.W.2d 885 (Tex. 1970)…………………………...…38
Guerra v. Brumlow, 630 S.W.2d 425, 430 (Tex. App. –
San Antonio 1982, no writ)……………………………………………….………32
Hays County v. Hays County Water Planning Partnership,
106 S.W.3d 349 (Tex. App.—Austin 2003, no pet.) …………………….....……32
Hughes v. Tarrant County, 948 F.2d 918 (5th Cir. 1991)…………………………30
Indian Beach Property Owners’ Assn. v. Linden, 222 S.W.3d 682
(Tex. App.—Houston [1st Dist.] 2007, no pet.) …………………………………..31
4
In Re Mott, 137 S.W.3d 870 (Tex. App.—Houston [1st Dist.] 2004)……………33
In Re Reed, 901 S.W.2d 604 (Tex. App.—San Antonio 1995)…………..……36 ff
Intercontinental Terminals Co. v. Vopak N. Am., Inc.,
354 S.W.2d 887, 899 (Tex. App.—Houston [1st Dist.]
2001, no pet.)………………………………………………………….…………41
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)……………………….……28
Mays v. Fifth Circuit Court of Appeals, 755 S.W.2d 78 (Tex. 1988)…………….25
Minton v. St. Bernard Parish School Board, 803 F.2d 129
(5th Cir. 1985)………………………………………………..……………………26
Mokwa v. City of Houston, 741 S.W.2d 143 (Tex. App.—
Houston [1st Dist.] 1987, writ denied)……………………………….………..34, 35
Nueces County v. De Pena, 953 S.W.2d 835 (Tex. App.—
Corpus Christi 1997, no pet.)……………………………………………………..32
Randall County Commissioners Court v. Sherrod,
854 S.W.2d 914 (Tex. App.—Amarillo 1993, no pet)………………………...….34
Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App.—
Eastland 1978, writ ref’d n.r.e.)…………………………………………...………36
Save Our Springs Alliance, Inc. v. City of Dripping Springs,
304 S.W.3d 871 (Tex. App.-Austin 2010, pet. denied)………………………..….28
Rubin v. Gilmore, 561 S.W.2d 231 (Tex. Civ. App.—Houston
[1st Dist.] 1977, no writ)……………………………………………………......…31
Schlafly v. Schlafly, 33 S.W.3d 683 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied)……………………………….…………………….32
Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16 (Tex. App.—
Houston [1st Dist.] 1988, no writ)…………………………………………………25
5
Tuma v. Kerr County, 336 S.W.3d 277(Tex. App.—
San Antonio 2010, no writ )………………………………………………………28
Vondy v. Commissioners Court of Uvalde County,
620 S.W.2d 104 (Tex. 1981)…………………...………………..……………...29 ff
Wilchester West Concerned Homeowners LDEF, Inc. v.
Wilchester West Fund, Inc., 177 S.W.3d 552
(Tex. App.—Houston [1st Dist.] 2005, pet. denied)…………………..…………31
Wojcik v. Wesolick, 97 S.W.3d 335, 340 (Tex. App.—
Houston [14th Dist. 2003, no writ)……………………………………………..…33
Williamson County v. Heckman, 369 S.W.3d 139 (Tex. 2012)……………..……25
Statutes and Rules
Senate Bill (SB) 1913…………………………………….…………………..passim
Texas Local Government Code Sec. 151.001, 152.004………………….….28, 41
Texas Rule of Civil Procedure 39……………………………...……………….20 ff
Texas Rule of Civil Procedure 66, 67..………………………………..…………32
Texas Rule of Civil Procedure 67………………………………………………..32
Texas Rule of Civil Procedure 683……………………………………………..40 ff
Texas Rule of Civil Procedure 684…………………………………….……….38 ff
Texas Constitution art. II, Sec. 1………………………………………….… passim
Texas Constitution, art. V, Sec. 8………………………………………….…passim
6
Treatises
Annot. 59 A.L.R.3d 569, Inherent Power of Court to
Compel Appropriation or Expenditure of Funds
for Judicial Purposes.................................................................................................3
7
ISSUES PRESENTED
Reply Issue 1—The new amendments to Section 75.401 of the Texas
Government Code do not make the Trial Court’s Temporary Injunction
Moot on appeal (Responsive to Appellant’s Issue 1)
Reply Issue 2—The trial court’s temporary injunction is not void because
the trial court had subject matter jurisdiction under Tex. Const. art. V, Sec. 8, and
any challenge to subject matter jurisdiction was waived in open court. (Responsive
to Appellant’s Issue 2).
Reply Issue 3—The trial court’s temporary injunction is not void because
the trial court validly exercised its supervisor jurisdiction under Tex. Const. art. V,
Sec. 8.(Responsive to Appellant’s Issue 3).
Reply Issue 4—The trial court’s order is not void because it complied with
the mandatory requirements for a temporary injunction under Rules 683 and
684.(Respnsive to Appellant’s Issue 4).
8
TO THE HONORABLE FIRST COURT OF APPEALS:
Nature of the Case
This case asserts the supervisory jurisdiction of the district courts over
commissioners courts under Texas Constitution art.V, Sec. 8, and further the
inherent power of courts of law to compel reasonable and adequate funding for
court personnel. The TRO and Temporary Injunction were necessary to prevent
Appellant from arrogating that power.
Trial Court Information
The hearings below were conducted before the Hon. Sharolyn Wood, visitng
by assignment.
Course of Proceedings
There is presently pending before this court a parallel proceeding, i.e.,
Petition for Writ of Injunction, No. 01-15-00797-CV, In Re Lonnie Cox.
Before the instant lawsuit was filed, Appellee Cox issued an order of
September 24, 2014, ordering Appellant Henry to restore Ms. Quiroga to her post
as Director of the Department of Justice Administration. An Attorney General’s
opinion was requested on the issue of whether the judges or the commissioners
could terminate or replace the director. All of the County Commissioners joined in
an unsuccessful Mandamus action in the Court of Appeals (No. 01-14-00820-CV)
and later before the Texas Supreme Court (15--00445).
9
Suit was filed when actins was threatened on June 9, 2015 to formally
establish an alternate Justice Administration Department which would deprive the
trial judges of control of those positions. The resulting temporary injunction order
was not confined to the September 24, 2014 order of Appelle Cox, but also
effectively implemented the inherent power of the courts to select judicial
personnel and to have them reasonably funded by the Commissioners’ Court.
Trial Court Disposition
The trial court’s temporary injunction restored the status quo by directing
that Ms. Quiroga, who had already resumed her duties, be provided office space,
equipment, and her previous salary from June 8, 2015. The trial court also made
other distinct orders that no personnel of the Justice Administration Department
should be relocated or reassigned.
FACTS
Duties and Selection of the Director
10
The duties of the Director were overwhelmingly judicial in nature. See, e.g,,
PX-2, a job description posted shortly after the purported firing of Director
Quiroga.
Appellant confuses funding with establishment or control of a
position. There is no question that the position of Director was funded by the
Commissioners court. However, in each instance the Director was nominated,
i.e., selected, by the trial judges.
Because of Appellant’s argument about the sanctity of the fiscal
authority of the commissioners court, see below at p. 27, it is important to note
that at no time did the trial court presume to determine what a reasonable salary
is, was or should be. Instead, the trial judge simply directed that Ms. Quiroga be
restored to the same salary or salary structure that she had determined her pay
in July of 2014, Temporary Injunction, CR 239.
That salary structure was not determined by the trial judge—it was
previously set by the commissioners court, and was never varied until Appellant
Henry tried to reconstitute the duties of the Justice Department and the salary
structure as a means of controlling the selection process.
There was no claim that Ms. Quiroga’s salary was unreasonably high
before July 24, 2014. Before that date, Appellant Henry had never
recommended any change in her salary or duties. When “finalists” were being
11
interviewed by Appellant’s staff, the same salary range was being discussed,
any difference being due only to longevity factors. 3 RR 52. Before July of
2014, there had never been a perceived need to disestablish the department of
Justice Administration. 3 RR 53.
At Brief p. 3, Appellant seems to invoke a “waiver” argument (“…As
the years went by…”) and numerous organizational charts, as if demonstrating
a course of dealing or usage in trade proof . That effort was firmly rejected by
the trial court, along with the various organizational charts that purported to
revoke the Texas Constitution. As the court stated later during arguments, “I
will tell you, I find that to be a spurious argument….” 5 RR 40 (Judge Wood).
The request for an attorney general’s opinion, DX-32, OCA Letter of
September 23, 2014, appears to have been the inspiration for the email that HR
Director Peri Bluemer sent, moving “forward” the finalist interviews to September
24—on one day’s emailed “notice. See PX -5, i.e., to “get the jump” on both the
trial judges and any forthcoming AG opinion.
At p. 5, n. 3, Appellant states that the AG declined to issue a request
“….due to the pendency of the mandamus petition.” The Brief fails to note that
Appellant’s counsel filed a mandamus petition on October 8, 2014. Then, on
October 10, 2014, Appellant’s counsel in the Mandamus proceeding sent a letter to
the attorney general, advising of the recently filed mandamus proceeding and
12
suggesting in the final paragraph, first page, that the AG’s office “…does not issue
….opinions on matters that are involved in litigation…” DX-39. That letter was
not copied to Judge Cox or anybody else. Four days alter, the AG’s office advised
that in view of the pending mandamus, the requested opinion would not be issued.
DX-40.
In response to the judges’ suggested pay scale—and without notifying the
judges-- Henry and the other Commissioners directed their “Chief of Staff” Tyler
Drummond and “HR” Director Peri Bluemer to conduct a “study”. The trial court
(Temporary Injunction, CR 329, p. 5) found that Judge Henry had used a salary
survey process which “…was arbitrary and designed to orchestrate the salary of
the replacement administrator for the courts at the lowest possible level,
undermining the independence of the judiciary.”
That finding was well supported by the evidence. The trial judges were not
consulted in screening some 143 applications for the post of director. When the
judges were “invited to interview” the finalists, it was under such short notice and
under such circumstances(during jury trial periods) as to virtually guarantee that
the judges would not be able to attend. See, e.g., PX -4 (HR email of 9/22/14,
stating that interviews might be in the following week) and PX -5 (HR email of
9/23/14, moving the “interviews” forward to the next day, September 24). It was
13
that attempt at a “done deal” that prompted Appellee Cox to issue the September
24 order.
The screening of the 143 applicants culled anyone with a hint of
independent integrity. Excluded from consideration were two assistant district
attorneys and one former judge—apparently because all had valid law licenses.
(Judge Wood, 4 RR at 197—“I heard-- Valid law licenses and not qualified.”)
One of the three “finalists” was an attorney who was under a probated
suspension from the State Bar of Texas through the year 2025. PX-17 (State Bar
Record). 4 RR 44; 4 RR 167-68. See Temporary Injunction, CR 329, p. 3,
describing the vetting process as:
“…eliminating applicants familiar with the Galveston County Courts
and attorneys in good standing with the State Bar, while including a
wholly unacceptable applicant who could not meet the standards of
integrity necessary in such a sensitive position due to addition to
drugs and whose license had been suspended by the State Bar.”
14
Attempts at Negotiation (The “Workaround”)
The attempts at negotiation in May of 2015 failed because Count Judge
Henry and the other commissioners apparently felt that they were at liberty to
accept one half of a settlement offer while rejecting the other half.
The three local administrative judges submitted a proposal (DX-44) on May
12, 2015, requesting a salary range for a modified Director’s position of $85,000 to
$120,000. That proposal would have taken some non-judicial duties out of Justice
Administration and transferred them to the Commissioners Court and County
Judge Henry.
The commissioners purported to accept the first half of the offer, but on
condition that the judges agree to their reduced salary range. As noted above, that
“range” would have reduced Ms. Quiroga’s salary from about $113,000 annually
to about $63,695—a 40% pay cut. Appellant’s Brief, App. G.
Appellant’s Brief, p. 10 asserts that the salary range adopted by the
Commissioners was “Based upon a comprehensive analysis of other administrative
positions in Galveston County and other counties….” The “analysis” was
blatantly selective. For instance, one of the comparator jurisdictions was Cameron
County, whose per capita annual income is about 46% that of Galveston County. 4
RR 29 (HR Director Bluemer) , PX -22 (Census Data). Moreover, Galveston has
to meet the nearby competition and had lost a previous Director (Ed Wells) to
15
Harris County in Year 2000. 4 RR 35 (Cox Testimony; Wells left in 2000 and was
succeeded by Ms. Quiroga).
In the course of closing arguments, the trial judge took particular notice of
the use of Cameron County:
They did not do themselves well with the witness and the
position that Cameron County is an appropriate county with
which to judge Galveston…Galveston is not Brownsville.
5 RR 53 (Judge Wood).
The mandamus, No. 01-14-00820-CV, was overruled without opinion on
February 4, 2015. Appellant and the other county commissioners all joined in a
Motion for Rehearing and Rehearing En Banc, which was denied on April 14,
2015. Justice Massengale’s opinion, concurring in the denial of en banc
reconsideration, pointed out the obvious fact that there had been no hearing,
evidence and no appealable order. Opinion Admitted as D-43.
After denial of en banc rehearing of the mandamus (April 14, 2015), the
Commissioners Court once again hired Attorney James Allison per the minutes of
the commissioners court meeting of May 26, 2015. DX- 56, page 8 of 12, to file a
mandamus with the Texas Supreme Court and undertake other litigation
“…necessary to restrain interference [sic] of the district court in the lawful
exercise of the Commissioners Court’s authority.” .
16
On May 29, eight of the ten judges signed an order, DX 46, directing that
Bonnie Quiroga return to work on June 8, 2015. That document was emailed to
County Judge Henry on Friday, June 5. In immediate response, Appellant Henry
first tried to get the elected sheriff of Galveston County, Henry Trochessett, to
serve a “trespass” warning on Ms. Quiroga, an obvious prelude to having her
arrested. See DX-19, Trespass Warning, signed by Appellant Henry “on behalf of
the owner, Galveston County, Texas.”
Next, Appellant Henry tried to get the District Attorney, the Hon. Jack
Roady, to have Ms. Quiroga prosecuted. DA Roady declined, noting perhaps
diplomatically that Ms. Quiroga would have an “affirmative defense” if such a case
were bought. Testimony of Mark Henry, 3 RR 71.
Simultaneously, Judge Henry simply tried to lock Ms. Quiroga out. The
“HR” director, Peri Bluemer, called the “facilities” department to have the lock to
Ms. Quiroga’s office changed on Friday evening, June 5. 4 RR 184. That call was
made after 5:00 pm. 4 RR 189. Ms. Bluemer claimed that she had not been
instructed to do so by anyone. 4 RR 185.
Next, Appellant Judge Henry sent his own “Order”, dated [Sunday], June 7,
2015, with a declaration that:
Judicial jurisdiction and power in this subject matter, if any, has
attached and remains exclusively in this court as the court with
dominant jurisdiction. The official actions of this Court
17
cannot be modified or amended by any Galveston County Court
of co-ordinate power, including any district or statutory
county Court. [Emphasis Added].
See and compare Tex. Const. art. V, Sec. 8.
County Judge Henry’s June 7 “Order” concluded by declaring that:
(1)“Bonnie Quiroga is not an employee of Galveston County;
(2) State District Judge Lonnie Cox did not have jurisdiction
concerning this mater to issue the Septemer 24, 2014 Order and
accordingly that order is void; and
(3) The eight district and county court judges who promulgated the
May 29, 2015 “Notice concerning this matter did not have
jurisdiction to enter any orders concerning this matter and
accordingly, to the extent that the notice may be construed as an order,
that Order is void.” [Emphasis added]
Ms. Quiroga did report for work on June 8, accompanied by Judge Cox,
District Judge John Ellisor, Probate Judge Kim Sullivan, and Sheriff Henry
Trochesset. When they got to that office, however, they discovered that the lock
had been changed. Sheriff Trochessett was able to open the door with his passkey.
4 RR 53-54.
Undeterred, Appellant Henry caused the locks to be changed again on the
evening of Monday, June 8. 3 RR 80. As of the date of his testimony, June 21,
that door was still locked. 3 RR 94. Appellant justified his actions in denying the
18
Sheriff a passkey because the building in question, the Galveston County Justice
Center at 600 59th Street, was not the “Courthouse”, which is at 722 Moody, i.e.,
the former courthouse. 3 RR 79.
The next day, June 9, Appellant was in a meeting with other commissioners
from 1:30 p.m. to implement what would amount to the destruction of the Justice
Administration as a department selected by and responsible to the judiciary, and
would put a number of judicial functions directly under the control of the County
“Judge”, Appellant Henry. See Agenda, DX-49. The petition for TRO was filed
near the noon hour. County Judge Henry was served with a TRO twice—the
latter having a date properly affixed—and promptly ignored it. Because the TRO
mentioned the “June 9” agenda, the same items were re-posted for the agenda of
June 13—a step which Appellant took on “upon advice of counsel”. 3 RR 87.
The TRO set a hearing date of June 19,2015. Appellant Henry and all other
commissioners filed a mandamus petition in the Texas Supreme Court, No. 15—
00445. That petition was denied by the Texas Supreme Court on the morning of
June 19.
19
Summary of the Arguments
This Court must exercise its inherent authority to punish defiance by elected
judicial officials. County Judge Henry—as a subordinate judge—was directly
bound by the Order of July 6, 2015. As such, he should either be disciplined by
this court or referred back to the trial court for appropriate proceedings.
Recent amendments to Section 75.401 of the Texas Government Code do
not support Appellant’s claim that this appeal or the underlying case have become
moot. Amended Section 74.401 cannot be constitutionally construed to give
Appellant unfettered and arbitrary power to set compensation for those performing
judicial duties.
The trial court’s temporary injunction is not void because the trial court had
subject matter jurisdiction.
The trial court’s temporary injunction order is not void because the trial
court validly exercised its general supervisory control jurisdiction under Tex.
Const. art. V, Sec. 8. The trial court only reversed unlawful actions and only
required the expenditure of funds at rates which had already been appropriated by
previous commissioners, including Appellant himself.
Texas law no longer recognizes the concept of “indispensable” parties. Any
objection under TRCP 39, dealing with parties needed for a just adjudication, was
waived because the issue was not raised below by special exception.
20
ARGUMENTS AND AUTHORITIES
Mootness—Responsive to Brief p. 17
This case is not moot. The recent amendments to Section 75.401 only kick
the “constitutional can” down the road.
Appellant’s “mootness” claim is based on a mis-reading of SB 1913 and
statutory construction principles. Appellant suggests that the phrase “set by the
commissioners court” –read in isolation--confers unbridled authority to dictate to
the judiciary by abusing the Power of the Purse. It does not.
Although SB 1913 clearly gives Appellee Cox and the other judges the
power to establish the post of director of justice administration—by whatever
name-- it does not give Appellant or the Commissioners Court the exclusive
power to arbitrarily fix their compensation—or to rig compensation so as to
control the selection process, as found by the trial court. Temporary Injunction,
CR 329. It could not constitutionally do that.
SB 1913(d) as enrolled and passed states:
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.
Statutes must be construed to reach a constitutional result. Texas
Government Code Sec. 311.021(1). The phrase “as set by the commissioners
21
court” can be read only to state the obvious-- that the commissioners court must be
the entity which appropriates the funds and approves the vouchers.
The phrase is also constitutionally superfluous. Under the Texas
Constitution, the commissioners court must approve all appropriations. But there
are constitutional boundaries on the Power of the Purse. The commissioners may
not arbitrarily withhold funding or set funding at unreasonably low rates. Vondy v.
Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981); District
Judges of the 188th Judicial District v. County Judge Gregg County, Texas, 657
S.W.2d 908 (Tex. App.—Texarkana 1983, writ ref’d. n.r.e.).
In Commissioners Court of Lubbock Co. v. Martin, 471 S.W.2d 100, 109
(Tex. App.—Amarillo 1971, writ ref’d. n.r.e.) the court held that the phrase
“advice and consent of the commissioners court” did not give the Commissioners’
court a veto over the judiciary:
“….Thus, ‘advice and consent of the commissioners court’
demonstrably does not mean that the commissioners court could
capriciously or arbitrarily ignore the appointment and setting up
compensation for probation personnel by the district judge. To give
that phrase converse meaning would nullify the authority given by the
legislature to the district judges. The construction would render the
commissioner’s court the sole arbiter of the necessity for and
appointment of probation personnel, if any it chose to approve, and
the designation of their compensation contrary to the statutory
22
expression. Of course, the effect would be to render nugatory the
express language of the statute.
471 S.W.2d at 108. The Lubbock County court continued:
We have no doubt that a district judge has the implied power to
appoint probation personnel and set their compensation in the event
such action is essential to the continuing effective administration of
the business of the court. But since we have sustained the actions of
the defendant district judges on the basis of the constitutionality and
construction empowering them to act, it is not necessary that we
determine whether, under the facts in this case, the defendant district
judges were or were not authorized to take the action they did under
the implied powers of the judiciary.
471 S.W.2d at 110 [emphasis added].
Lubbock County was cited with approval in Eichelberger v. Eichelberger,
582 S.W.2d 395(Tex. 1979).
Judge Henry violated Texas Local Government Code Sec. 151.004 by
firing Ms. Quiroga and then by arrogating to himself and his staff the selection of
a successor. Judge Henry and his “staff” then compounded the harm by attempting
to cut the judges out of the selection process, and flimflamed the system by a
stacked salary review. As Visiting Judge Sharolyn Wood found:
…Petitioner Cox has the probable right to recover relief in this suit in
that Respondent Henry may not eliminate and attempt to control the
23
replacement of the administrator for the courts of Galveston County
and, then, manipulate employment terms and applicants to replace the
administrator position to eliminate suitable applicants.
CR 239 at 240.
Appellant Henry also fails to read SB 1913(d) in connection with
Government Code Sec. 311.016(4): the phrase, “ ‘Is Entitled To’ creates or
recognizes a right.” The words “or recognizes” are crucial in this context. SB
1913 clearly recognizes and confirms the right of Ms. Quiroga or others in the
service of the district and county judges to reasonable compensation—and cannot
be read to allow the arbitrary setting of salaries so low as to control the selection
process. See Temporary Injunction of July 6, 2105, CR 243,Page 4.
Beyond outright defiance of judicial orders, this case is about Appellant
Henry’s attempt to game the system by denying reasonable compensation, and
“agreeing” to a salary schedule set artificially low in order to control the selection
process. Resolution of that dispute resides with the trial court, which alone has
fact-finding capacity, and is beyond the jurisdiction of this court in the context of a
interlocutory appeal from a temporary injunction. See, e.g., Astoria Industries v.
SNF, Inc., 223 S.W.3d 616, 625 (Tex. App.—Fort Worth 2007, pet.
denied)(jurisdiction limited to reviewing those portions of trial court’s order
subject to interlocutory appeal).
24
Capable of Repetition Yet Evading Review
Even if SB 1913 somehow ended the current controversy—which it did
not—the dispute in this case would be capable of repetition yet evading review,
and thus not moot Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 18 (Tex.
App.—Houston [1st Dist.] 1988, no writ), i.e., where the challenged act is of such
short duration that the appellant cannot obtain review before the issue becomes, in
fact, moot. The time span necessary for Appellant to rekindle this dispute is 72
hours, i.e., the required interval for posting a commissioners court meeting to pass
a budget “amendment”. Nothing in the history of this case gives any assurance
that such maneuvers will not be tried.
Vindication of Constitutional Rights
Texas courts now recognize a broader exception to mootness where cases
must be heard to vindicate constitutional rights. Williamson County v. Heckman,
369 S.W.3d 139, 148-49 (Tex. 2012). This case directly involves the
constitutional prerogatives of the trial judges, who have a well established right
to select judicial personnel and to have them reasonably compensated by the the
commissioners. Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d
104, 109-10 (Tex. 1981), Mays v. Fifth Circuit Court of Appeals, 755 S.W.2d 78,
80 (Tex. 1988)(Spears, J., concurring), Those rights are now statutorily
recognized in SB 1913(d)(“entitled to”), Texas Government Code Sec. 311.016(4,)
25
but are challenged in this case by Appellant’s attempting to “rig” the
compensation structure so as to continue influencing the selection of highly
inappropriate personnel. Temporary Injunction, CR 239, 244, Para. 5:
…the Drummond salary survey process was arbitrary and designed to
orchestrate the salary of the replacement administrator for the courts
at the lowest possible level, undermining the independence of the
judiciary.
In Williamson County v. Heckman, supra, the Texas Supreme Court stated:
We adopt the federal exception to mootness for " inherently
transitory" claims. As discussed above, Texas courts generally lack
the authority to decide a case if it ceases to be " live" or if the parties
no longer have a cognizable interest in the outcome of the case.
However, we conclude that the " inherently transitory" claims
exception, as described above, ensures that there remains a live
interest between the class of affected individuals— thereby satisfying
constitutional justiciability concerns. And, like the exception for
claims that are " capable of repetition yet evading review," this
exception also enables our courts to review claims of governmental
deprivation of constitutional rights that might otherwise be
unreviewable.
Heckman, supra, 369 S.W.3d at 148-49.
The “live” class of affected individuals is much larger than the judges in
Galveston County. It potentially includes many or all of the trial judges in Texas’
26
254 counties, all of whom sooner or later may lock horns with misguided or
misadvised commissioners. The tale is an old one. See, e.g., Vondy, supra (refusal
to set a constable’s salary); Mays, supra (refusal to grant a statutorily mandated
increase in court reporter fees); Randall County Commissioners Court v. Sherrod,
854 S.W.2d 914 (Tex. App.—Amarillo 1993, no pet)(DA complaining of
commssioners’ budget); Cf. Ector County v. Hollman, 901 S.W.2d 687, 691 (Tex.
App.—El Paso 1995, no writ) (noting potential for “political hijinks”).
Subject Matter Jurisdiction
(responsive to Appellant’s Brief, p. 20 ff)
“Standing” of Judge Cox
Appellant argues that Judge Cox somehow lacks standing to enforce his own
decrees or to exercise constitutionally conferred “general supervisory power” over
the commissioners court, Tex. Const., art. V, Sec. 8. That argument puts standing-
- so to speak—on its head:
[T]he principle of standing exists to protect the separation of powers,
not to defeat it. Standing operates to prevent the Judiciary from
exercising authority that belongs to other departments of government,
not to deprive the Judiciary of its role in interpreting law, especially
constitutional law. The requirement of standing cannot be used to alter
the separation of powers.
Finance Commission of Texas v. Norwood, 418 S.W.3d 566, 581 (Tex. 2013)
27
Appellant at pp. 22-22 relies too heavily, on Tuma v. Kerr County, 336
S.W.3d 277, 280(Tex. App.—San Antonio, 2010, no writ), for the proposition that
Judge Cox needed to show particularized injury to seek relief. A plaintiff does not
need to establish paritcicularized injury when standing is conferred by statute.
Andrade v. Venable, 372 S.W.3d 134, 137 (Tex. 2012). Judge Cox’ standing is
even more fundamental—the Texas Constitution, art. V, Sec. 8, gives district
courts (and thereby judges) “general supervisory control” over commissioners
courts—and especially to correct violations of other law, e.g., Texas Local
Government Code Sec. 151.004.
Judge Cox amply pleaded and proved “particularized injury” as that term is
used in determining standing. "A plaintiff must be personally aggrieved; his
alleged injury must be concrete and particularized, actual or imminent, not
hypothetical." DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, (Tex.2008). The
" irreducible constitutional minimum" of standing consists of three elements—
injury in fact; causal connection, and likelihood that injury will be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992);
Save Our Springs Alliance, Inc. v. City of Dripping Springs,304 S.W.3d 871, 878
(Tex.App.-Austin 2010, pet. denied).
28
Director Quiroga was not the only party injured. Another distinct casualty
was the constitutionally grounded ability of judges to select competent personnel
and to have them adequately compensated, e.g., Vondy, supra and Mays, supra,
and not to have a defrocked lawyer crammed down their official throats as a
Director. The injury was directly traceable to the actions of Appellant Henry and
others, and the controversy actually accelerated during those hearings, e.g., the
“reassignment” of Deputy Clint Purcell,which threatened to derail the court’
program of monitoring probationers and those on bond for drug and alcohol abuse.
4 RR 189-90.
The claim that Judge Cox had no “standing” would, if accepted, eviscerate
Texas Constitution art. V, Sec. 8, which gives the district courts general
supervisory power over commissioners courts. In rare instances, such as here,
even ex parte or sua sponte orders may be justified. Mays, supra.
Legislative Immunity
Responsive to Brief at p. 24 ff
To assert “Legislative” immunity, a person must have been sued in his
individual capacity. , Camacho v. Samaniego, 954 S.W.2d 811, 824 (Tex.
App.—El Paso 1997, pet. denied); . Minton v. St. Bernard Parish School Board,
803 F.2d 129, 134 (5th Cir. 1985). At all times in this matter, County Judge Henry
has been sued in his “official” capacity.
29
Furthermore, legislative immunity is an affirmative defense which must be
pleaded or else it is waived. Cozzo v. Tangipahoa Parish Council, 279 F.3d 273,
283 (5th Cir. 2002). The Plea to the Jurisdiction, CR 78-92, discloses no such
affirmative defense or pleadings.
Appellants claim of Legislative immunity fails under the two part test
established in Bogan v. Scott-Harris, 523 U.S. 44, 46 (1998) and Hughes v.
Tarrant County, 948 F.2d 918, 921 (5th Cir. 1991), generally applied by Texas
Courts.
Legislative Facts—Under the first Hughes test, the inquiry is whether the
facts relied on to reach a decision are “legislative facts”, i.e., generalizations
concerning a policy or state of affairs. If so, the act is legislative; if not, the act is
administrative. See Associated Press v. Cook, 17 S.W.3d 447, 460 (Tex. App.—
Houston [1st Dist.] 2000, no pet.); Bartlett v. Cinemark USA, Inc., 908 S.W.2d 229,
236 (Tex. App.—Dallas 1995, no writ).
Impact of the Action—The more narrow the impact, the less likely an act
will be “legislative” rather than administrative. If the action singles out specific
individuals and affects them differently from others, it is administrative.
Associated Press v. Cook, supra, 17 S.W.3d at 460; Bartlett, supra, 908 S.W.2d at
236; See Hughes, supra, 948 F.2d at 911. If an act merely enforces a preexisting
policy, act or law, it is not legislative. In this case, the “firing” of Ms. Quiroga
revoked the resolutions of about 15 earlier commissioner court salary
authorizations, and the subsequent attempt to dismantle the Justice Administration
department was an entire new—and constitutionally forbidden—agenda.
30
There Are No Longer “Indispensable”
Parties In Texas Procedure
(Responsive to Brief, p. 27)
The question of joinder of parties is not jurisdictional, and was waived by
failing to bring the matter to the attention to the trial court.
The term “indispensable party” became largely obsolete when TRCP 39
was adopted, some 45 years ago:
“One of the aims of the revised rule [39] was to avoid questions of
jurisdiction….Contrary to our emphasis under Rule 39 before it was
amended, today’s concern is less that of the jurisdiction of a court to
proceed and is more a question of whether the court ought to proceed
with those who are present…. “
Cooper v. Texas Gulf Industries, 513 S.W.2d 200, 203-04 (Tex. 1974).
Compliance with Rule 39 is not jurisdictional, even in the context of a
Declaratory Judgment Action, e.g., Wilchester West Concerned Homeowners
LDEF, Inc. v. Wilchester West Fund, Inc., 177 S.W.3d 552, 558-59 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied); Indian Beach Property Owners’ Assn. v.
Linden, 222 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
Nor does Rule 39 affect deprive a court of jurisdiction in an injunctive
proceeding. Rubin v. Gilmore, 561 S.W.2d 231, 233 (Tex. Civ. App.—Houston
[1st Dist.] 1977, no writ), citing Cooper.
31
The structure of Rule 39 makes it clear that it must be asserted at the trial
court level, or be waived. See, e.g., Guerra v. Brumlow, 630 S.W.2d 425, 430
(Tex. App. –San Antonio 1982, no writ), citing both Cooper and TRCP 97.
That feature prevents a litigant from simply “laying behind a log”—as in this case-
- and then trying to claim non-joinder as a jurisdictional bar, and an appellate
afterthought.
At Brief, pp. 29-30, Appellant sidesteps the waiver issue by implying that
the “issue” of non-joinder had been raised. However, the reason for the trial
amendment following the conclusion of evidence, CR 247, was simply to conform
the pleadings to the evidence, which included events which occurred during the
hearings. TRCP 66, 67. See, generally,Schlafly v. Schlafly, 33 S.W.3d 683, 872
(Tex. App.—Houston [14th Dist.] 2000, pet. denied) on improper and misleading
briefing.
The cases cited at Brief, pp. 28-29 are inapposite. Hays County v. Hays
County Water Planning Partnership, 106 S.W.3d 349 (Tex. App.—Austin 2003,
no pet.) was an appeal from a final judgment of injunction. The opinion dealt with
whether the actions of one commissioner might be ascribed to the County, and
determined that they could not.
32
Nueces County v. De Pena, 953 S.W.2d 835 (Tex. App.—Corpus Christi
1997, no pet.) merely held that the County Judge could not be ordered to attend an
“apex” mediation, since the Judge had no independent settlement authority and the
ADR statute provided no such authority.
As the court is aware, all commissioners joined in a mandamus challenging
Judge Cox’s original orders, 01-15-00820-CV, and all but one are clearly are
aligned with County Judge Henry. Thus, the other commissioners are virtually
represented by Judge Henry and need not be formally joined. See Wojcik v.
Wesolick, 97 S.W.3d 335, 340 (Tex. App.—Houston [14th Dist. 2003, no
writ)(Brister, J., concurring).
Finally, the defense of inability to comply is not a jurisdictional issue nor
one that cannot be ordinarily resolved by an appellate court. “The time and place
for testimony as to impossibility of compliance with the court’s order is in the trial
court where the matter is being considered.” Ex Parte Johnson, 654 S.W.2d 415
(Tex. 1983); In Re Mott, 137 S.W.3d 870 (Tex. App.—Houston [1st Dist.]
2004)(orig. proceeding).
Given the current status of this litigation it is obvious that Appellant Henry
has not even tried to comply, and is not going to.
33
The Trial Court Validly Exercised its Supervisory Jurisdiction
Under Texas Const. art. V, Sec. 8
(Responsive to Brief, p. 30)
Appellant paints a picture of a trial judge running amok, dictating ex
cathedra what a reasonable salary should be and generally trampling on his
constitutional turf.
That did not happen. The trial judge did not compute a “reasonable” salary
out of whole cloth, as was the case in Ector County v. Stringer,843 S.W.2d 477
(Tex. 1992), where the trial arrived at a figure of $1,500 for past services.
The trial court simply preserved the status quo ante by ordering that Ms.
Quiroga be paid the same salary that she made as of July of 2014. That salary
structure (a) had been approved by the commissioners court for years; (b) approved
by the same commissioners court for the 2014 budget; and (c) was the same salary
structure that was discussed in September of 2014 with Ms. Quiroga’s aspiring
replacements, i.e., the demonstratively unsuited “finalists.” 3 RR 24; 52-53.
See and compare Randall County Commissioners Court v. Sherrod, 854
S.W.2d 914, 918-19 (Tex. App.—Amarillo 1993, no pet.)(injunction of prior
year’s salary schedule maintained status quo). See, also, Mokwa v. City of
Houston, 741 S.W.2d 143 (Tex. App.—Houston [1st Dist.] 1987, writ denied),
34
where the Court of Appeals reversed and rendered a judgment in favor of a police
officer based upon previously adopted pay schedules. Mokwa was cited with
implicit approval by the Texas Supreme Court in Ector County v. Stringer, supra:
For example, in Mokwa v. City of Houston…. a police officer sought to
recover back pay from the city for services rendered in a job classification at
a higher pay rate than her regular job classification. Id. at 143. The court in
Mokwa stated that a trial court has jurisdiction to determine the amount of
back pay due. Id. at 145. However, the principal issue in the case was
entitlement to compensation at a pay level for a higher classification, for
which the amount had been previously established by the governing
body.
Ector County v. Stringer, supra, at 480 (emphasis added).
Cf. Benavides Independent School District v. Guerra, 681 S.W.2d 246, 250
(Tex. App.—San Antonio 1984, writ ref’d. n.r.e.)(back pay during period when
parties were in negotiating stance preserved status quo).
The reasoning of Hooten v. Enriquez, 863 S.W.2d 522 (Tex. App.—El Paso
1993, no writ), cited at Petition, p. 16, actually supports Appellee with special
force where the inherent powers of trial judges and the Separation of Powers
under art. I, sec. 2 of the Texas Constitution are involved, noting that a district
court may enjoin an act of a commissioner’s court that is performed arbitrarily,
capriciously, collusively, fraudulently, or in abuse of its discretion.” Hooten,
supra, 863 S.W.2d at 521.
35
Cf. Commissioners Court of Shelby County v. Ross, 809 S.W.2d 754 (Tex.
App.—Tyler 1991, no writ)(commissioners may determine number of deputies to
be appointed and their compensation, but have no absolute right to determine who
shall be appointed); Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App.—
Eastland 1978, writ ref’d n.r.e.)(commissioners court has no right to screen
applicants or to veto appointments made by the county clerk at various salary
steps); Abbott v. Pollock, 946 S.W.2d 513 (Tex. App.—Austin 1997, writ
denied)(Commissioners Court cannot terminate or appoint sheriff’s office
employee). See, generally, See, generally, Annot. 59 A.L.R.3d 569, Inherent
Power of Court to Compel Appropriation or Expenditure of Funds for Judicial
Purposes.
THE BOND, THE WRIT—AND JUDICIAL DEFIANCE
(Resonsive to Brief, p. 37)
This is no ordinary case, but one in which a subordinate judicial officer has
openly defied orders of judicially superior courts and has literally and explicitly
claimed to be superior to those courts—in effect defying the “general supervisory
control” established in Tex. Const. art. V, Sec. 8. See, In Re Reed, 901 S.W.2d
604 (Tex. App.—San Antonio 1995)(orig. proceeding), a district judge openly
defied an order to cease a jury trial. That judge was sanctioned following
evidentiary hearings:
36
This court recognizes that some of the procedures utilized in the
present matter appear to be somewhat unusual. However, this court
was faced with a situation apparently lacking in precedent--the refusal
of a subordinate court to obey the direct order of a superior court..The
action of Judge Reed--refusing to comply with an order of a superior
court--is a proper subject of contempt because it is an act in disrespect
of this court and which tends to bring this court into disrespect in the
community. It is also an act in obstruction of the proper administration
of justice in that it deprived this court of the opportunity to rule on the
merits of a petition for writ of mandamus then pending before the
court. If the act is contemptuous, it is the duty of this court to assert
its independence and authority and to punish Judge Reed accordingly.
In Re Reed, supra, 901 S.W.2d at 611-12.
The Court of Appeals then went on to hold that such defiance of court orders
by judicial officers provided its own remedy:
“The power to punish a party who fails or refuses to obey a prior order
or decree of the court for contempt is an inherent power of a court and
is an essential element of judicial independence and authority." Ex
parte Barnett, 600 S.W.2d 252, 254(Tex.1980); accord Ex parte
Pryor, 800 S.W.2d 511, 512 (Tex.1990).
In Re Reed, supra, 901 S.W.3d at 611.
County Judge Mark Henry was present with his counsel Mr. Ed Friedman on
July 6, 2015 when the Temporary Injunction was read, corrected as to details, and
37
distributed. It was to County Judge Henry that District Judge Wood directed this
warning:
As an aside, I better not find out air conditioning has been cut off or
the lights have been cut off.
6 RR 10-11. The Appellant, County Judge Mark A. Henry, has absolutely no
excuse or defense as to any sanction that might befall him.
Rule 684
Appellant Henry claims incorrectly that a bond was not filed, and then
claims that for that reason “The trial court’s temporary injunction order is
void…”Brief, p. 43. (emphasis added).
Even if a bond were not filed—which it was—any such failure would at
most void the temporary injunction and would not void the underlying order. See,
e.g., Benavides Independent School District, supra, 681 S.W.2d at 250:
However, the fact that a bond was not posted affects only the validity
of the issuance of the temporary injunction; it has no effect on the
validity of the court’s order which authorizes the injunction.
38
Benavides simply followed Goodwin v. Goodwin, 456 S.W.2d 885 (Tex.
1970)(“…we are not to be understood as holding the injunction as issued under the
amended order is invalidated or void.”
Cases cited by Appellant do not support his “bond” argument. In Ex Parte
Lesher, 651 S.W.2d 734 (Tex. 1983), the trial court had improperly waived a bond
and no bond of any kind was posted. In Diversified, Inc. v. Turner, 650 S.W.2d
175 (Tex. App.—Houston [14th Dist.] 1983, no writ), the cited statement was
arguably dicta or at best an alternative holding, since the injunction order itself did
not meet the minimal requirements of specificity under Rule 683. Further,
Diversified appears to have involved a surety bond (“injunction bond”), and not a
cash bond. Id. at 177.
Appellant cites cases which involved surety bonds, which must of course be
approved. However, this case clearly involved a cash bond, posted at the issuance
of the Temporary Restraining Order, and subsequently approved by the trial court
as security for the injunction. See, e.g., Bay Fin. Sav. Bank v. Brown, 142 S.W.3d
586, 590-91 (Tex. App.—Texarkana 2004, no pet):
“[A]n order granting temporary injunction [must] fix the amount of
security to be given by the applicant…A bond for a temporary
restraining order does not continue on and act as security for a
temporary injunction unless expressly authorized by the trial court.”
39
That is precisely what happened in this case. See Temporary Injunction, CR 329 at
337. Cf. statements of Judge Wood, 6 RR ***.
It is not clear how one approves a cash bond. When counsel’s check
was posted on June 9, 2015, the District Clerk’s office appears to have promptly
“approved” it. See CR 61, certifying that the District clerk “…in lieu of bond,
therein, has deposited with me cash in the amount of $100.00 on June 9…..”
Once that bond was “approved,” the Visiting Judge on July 6, 2015 properly
applied it to the $100 bond set for the Temporary injunction.
Issuance of Writ Blocked by Appeal
Appellant notes that no writ was issued, and in that regard is in the position
of one who, having asked for something, complains that he got it. Bayoud v.
Bayoud, 797 S.W.2d 304, 312 (Tex. App.—Dallas 1990, writ denied).
The Notice of interlocutory appeal CR 334 and 335, was apparently filed
with Appellant’s Brief at Tab B, following page 5 (CR 333) of the trial court’s
Temporary Injunction. That may be because the Notice of Appeal was filed at
4:18 pm, just two minutes after the Injunction was hand stamped (See CR 329,
upper right portion of the page) by the attending deputy district clerk.
40
If --as Appellant contends--the interlocutory appeal stayed all proceedings in
the trial court, then it is difficult to see how the district clerk’s office could have
validly issued any further process.
Rule 683
The only requirements for an injunction to be effective are contained in
Rule 683. This Court has announced the governing standard:
An explanation of the pending harm to the temporary injunction
applicant, along with a specific recitation of the conduct enjoined, is
all that is necessary to achieve Rule 683’s purpose: ‘to inform a party
just what he is enjoined from doing and the reasons why he is so
enjoined.
Intercontinental Terminals Co. v. Vopak N. Am., Inc., 354 S.W.2d 887, 899 (Tex.
App.—Houston [1st Dist.] 2001, no pet.).
IRREPARABLE HARM
(Responsive to Brief, p. 45)
The requirement of Rule 683 was amply met by the thorough injunction of
Judge Wood. In page after page, the trial judge specified how the independence of
the judiciary was being subverted. Temporary Injunction, CR 329 ff. There can
surely be no more irreparable harm than in subverting public confidence in one of
the three independent branches of our state government. See In Re Reed, supra.
41
Moreover, the related requirement of “no adequate remedy at law” is
presumed to be met when a litigant seeks by injunction to enforce a statutory right.
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 201 (Tex. 2002). This principle
certainly must apply where both statutes, e.g., Tex. Govt. Code Sec. 151.001,
151.004 are being enforced, where the constitutional guarantee of separation of
powers, Tex. Const., art. II, Sec. 1, and the supervisory control of the district courts
under art. V, Sec. 8 are all at issue.
Conclusion
County Judge Mark Henry is a retired military officer, 3 RR 5, who
apparently can give orders but can’t take them. From the beginning, his conduct
has been an open challenge to the independence of the judiciary in Galveston
County and, by malignant example, the rest of the State. Appellee Cox was well
within his inherent power in issuing the challenged pre-trial orders, and the trial
judge below was well within her constitutional duty in entering the order in
question. The present state of this litigation confirms the need for firm judicial
action.
Prayer
It is therefore PRAYED that this Court AFFIRM the Orders below in all
things, and remand this case to the trial court for further proceedings including but
42
not limited to (a) hearings as to the disobedience of Judge Henry of the Court’s
direct order of July 6, 2015; (b) hearings as to the complicity and culpability of
other persons acting in concert with Judge Henry in regard to disobedience of the
direct order of July 6, 2015; (c) hearings regarding the actions of Judge Henry to
impede or obstruct the jurisdiction of this Honorable Court of Appeals; (d)
hearings as to disobedience of Judge Cox’s order of September 24, 2014 and
subsequent; and (e) such other and further measures as may be necessary and
constitutionally appropriate.
Respectfully submitted,
Mark W. Stevens
Mark W. Stevens
TBN 19184300
PO Box 8118
Galveston, TX 77553
409.765.6306
Fax 409.765.6469
Email: markwandstev@sbcglobal.net
Counsel for Appellee The Hon. Lonnie Cox
Certificate of Compliance
The foregoing instrument in relevant parts contains 7,109 words in Times
New Roman Type, with text double spaced and quotes in 1.5 spacing .
Mark W. Stevens
Mark W. Stevens
43
Certificate of Service
The foregoing was efiled and e-mailed PDF to Mr. Edward Friedman on
September 24, 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@bpmllp.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.
Mark W. Stevens
Mark W. Stevens
44