Opinion issued December 22, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00583-CV
———————————
THE HONORABLE MARK HENRY, COUNTY JUDGE
OF GALVESTON COUNTY, Appellant
V.
THE HONORABLE LONNIE COX, JUDGE OF THE 56TH DISTRICT
COURT OF GALVESTON COUNTY, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case No. 15CV0583
CONCURRING AND DISSENTING OPINION
I concur with the Court’s judgment on issues one, two, and four raised in
County Judge Mark Henry’s appeal. I disagree with its disposition of the third issue
and therefore its affirmance of that portion of the district court’s temporary
injunction order that required County Judge Henry to order the County Treasurer to
pay Bonnie Quiroga the same salary as she received in her old position—a position
that no longer exists. I believe the district court erred in setting a specific salary;
1
instead, it should have instructed the commissioners court to set a new—and
reasonable—salary for Quiroga’s new positon. Not only did the district court’s
injunction improperly invade the province of the commissioners court to determine
compensation for its employees, but it also erroneously ordered a single
commissioner to take action that only the commissioners court as a whole could take.
Background
This unfortunate dispute between two branches of the Galveston County
government originates out of a series of events that began twenty years ago. The
events were uncontroversial at the time but unwittingly provided a toehold for the
current controversy. In 1995, the Galveston County commissioners, at the
suggestion of the county’s trial judges, created a position, “Director of Court
Administration,” to aid the judges in docket management. But the position was not
restricted to assisting the trial judges; it also provided services to the County Judge,
who is a member of the commissioners court.1 The new position formally reported
to the County Judge. But because the position was originally created at the request
of, and primarily for, the trial judges, it also informally reported to the Galveston
County Administrative Judge. Five years after the position was created and at the
1
The judicial administration position was not created under the procedure set forth
in Section 151.001 of the Local Government Code. TEX. LOC. GOV’T CODE ANN. §
151.001 (West 2008).
2
“recommendation” of the trial judges, the commissioners court agreed to hire Bonnie
Quiroga as the Director of Judicial Administration.2
Eventually the two groups for whom Quiroga worked disagreed about the
quality of her performance. In June 2014, the commissioners, who had been
dissatisfied with her work, fired her.3 The trial judges strongly disagreed with the
decision and took a number of steps to retain Quiroga. The Office of Court
Administration (OCA) proposed a compromise to split the duties between those
reporting to the trial judges and those reporting to the County Judge. After a series
of discussions between the trial judges and the county commissioners, in May 2015,
the trial judges suggested the adoption of OCA’s compromise, which was pursuant
to section 74.103 of the Government Code. TEX. GOV’T CODE ANN. § 74.103 (West
2013) (“The courts may appoint appropriate staff and support personnel according
to the needs in each county.”).
The trial judges’ offer of compromise requested that the commissioners create
a new position for an employee whose sole responsibility would be to assist with
court administration and who would have a slight change in title, Director of Court
2
The “Director of Judicial Administration” is the same position as the “Director of
Court Administration.” During the past 20 years, the position’s title has changed.
3
To be precise, County Judge Henry initially fired her. He testified that he knew at
the time that a number of the commissioners were also dissatisfied with her
performance. The commissioners court shortly thereafter ratified that decision.
3
Administration (which was the original title of Quiroga’s position). In effect, the
trial judges were requesting that the former department known as Justice
Administration, which used to fall partly under the judiciary and partly under the
County Judge and commissioners court, be split and a new position be created that
reported solely to the judiciary.
The trial judges set out the proposed job’s “essential duties” in 30 bullet
points, none of which corresponded to the duties previously performed for County
Judge Henry under the earlier arrangement. In addition to having fewer duties, this
new position would also supervise fewer employees. All agreed that the trial judges
would be responsible for hiring and supervising this new position.
While the position was new, the trial judges’ candidate for the position was
known to all of the public officials involved in the controversy: Bonnie Quiroga, the
person who had served as Director of Judicial Administration for thirteen years and
whose performance had been the subject of the earlier disagreement.
A few weeks after the trial judges submitted their request, on June 9, 2015,
the commissioners court issued an order with findings of fact. The order
acknowledged that the trial judges need staff to assist them with certain tasks such
as:
coordinating requests for visiting judges for the courts from the regional
administrative judge, arranging substitute court coordinators and
reporters, supervising case flow management of the courts, preparing
administrative judicial orders and documents, assisting with the
4
preparation of daily jail docket, assisting with the processing of attorney
fee vouchers, [and] maintaining a database of eligible court appointed
attorneys.
The commissioners court order approved the appointment of the new position,
with the duties covered by the trial judges’ proposed job description but with a new
title of “Court Manager.”4 The commissioners court approved a salary grade of 225
(with 30 being the highest grade a county position could be classified) with a salary
step ranging from A to E (with salary steps in the county ranging from A to Z within
the grades).6 Based on the range specified, the new position could pay between
$57,705 and $63,695 annually. If the salary step had been assigned a higher range,
the position could have paid more.
The County offered little explanation of why the salary step for the new
position was limited to an “E.” County Judge Henry explained that the County has
a policy of assigning positions at grade 20 and above at an initial salary step not to
exceed E. He testified, “A new hire is A through E” while a higher step is reserved
4
For simplicity, I hereinafter refer to this position as the Court Manager position and
to the former position, the Director of Judicial Administration, as the Court Director.
5
For grade 22, the salary range is $57,000 through “the 80,000s” with a step range
from A to R.
6
According to the June 9 order by commissioners court, salary grade in Galveston
County “correlates to the market range of salaries for a particular position. Salary
step . . . correlates to pay differentials within the market range affected by such
factors as experience, education, or training of the employee.”
5
“for more tenured people. . . . [T]he county policy says you can hire in new
[personnel] between 22A and E.” The County assigned Quiroga “the maximum
22E.” The County applied this policy knowing that Quiroga was not a new County
hire—she had worked there for over 30 years—and had spent over 13 performing
all of the functions of the new position plus more.
Shortly after issuing its order, the commissioners court met in two separate
executive sessions to further discuss the trial judges’ request. Following the first
executive session, the commissioners approved the creation of new administrative
positions to report to the Court Manager. Following the second executive session,
the commissioners approved a budget amendment for the employees’ pay.
But one dispute remained: the salary for the new Court Manager position. The
trial judges requested a salary of $85,000 to $120,000 based on an informal survey
they conducted from six other counties in Texas where salaries ranged from $49,720
to $149,448. The trial judges’ survey did not include internal comparisons with
salaries paid to other Galveston County employees. Nor did the trial judges’ survey
compare the responsibilities and necessary qualifications of the Court Manager
position with the responsibilities and necessary qualifications of other Galveston
County positions.
According to testimony from District Judge Lonnie Cox, County Judge Henry
stated that he would never pay a salary in the range suggested by the trial judges for
6
this new position. Henry then ordered a salary survey to be performed by a county
employee. This study, which also compared the proposed position’s salary to salaries
for positions in other counties, did not look at census data to compare per capita
income in the counties.7
Neither side hired a salary consultant or specialist or person with experience
in setting the salary for comparable positions to resolve this dispute.
With no reliable method suggested by either side to resolve this salary dispute,
District Judge Cox8 sued County Judge Henry,9 seeking injunctive relief. The district
court agreed with the trial judges on the salary dispute. It granted a temporary
injunction, reemploying Quiroga in the new Court Manager position with the same
salary as she had been paid in her former position, $113,000 annually.
The district court’s unchallenged findings
7
One of the counties used for comparative purposes had not yet filled a recently-
created, similar position.
8
Judge Cox sued “in his official capacity as judge of the 56th District Court of
Galveston County, Texas.” He did not sue as the administrative law judge. County
Judge Henry does not raise any issue regarding Cox’s standing to bring this suit. See
generally Cty. Comm’rs Court of Dallas Cty. v. Williams, 638 S.W.2d 218, 219
(Tex. App.—Eastland 1982), writ ref’d n.r.e. sub nom. Williams v. Comm’rs Court
of Dallas Cty., 655 S.W.2d 206 (Tex. 1983) (holding practicing attorney had
standing to bring challenge against commissioners court for arbitrarily allocating
courtroom space).
9
The petition does not state that Henry is sued only in his official capacity.
7
In its third issue, the County10 argues that the district court did not validly
exercise its general supervisory jurisdiction over the county commissioners court
under Article V, section 8 of the Texas Constitution. TEX. CONST. art. V, § 8
(granting district courts “appellate jurisdiction and general supervisory control over
the County Commissioners Court”). A district court exercising its limited
supervisory authority may determine that a commissioners court has acted
arbitrarily. Griffin v. Birkman, 266 S.W.3d 189, 195 (Tex. App.—Austin 2008, pet.
denied). The district court found that the County did act arbitrarily.
In its fact findings, the district court stated that the County used a salary survey
process that “was arbitrary and designed to orchestrate the salary of the replacement
administrator for the courts at the lowest possible level . . . .” It further found that
Henry “used the ability to set the salary for the new position at a sufficiently low
salary to continue to control the hiring process.” The district court also found that
County Judge Henry knew that the trial judges considered the salary level set by the
commissioners court to be “arbitrarily low.” Notably, the County does not contend
that the district court abused its discretion because of a lack of evidence to support
10
Because County Judge Henry and the majority of the commissioners court are
aligned, I refer to Henry as the County when referring to his arguments.
8
these findings.11 Instead, it argues that the district court abused its discretion by
“telling the commissioners court what salary to adopt.” I turn to that issue next.
The district court’s order that Quiroga be paid the same “salary scale”
as she was paid in her former position
1. Legal error
While this Court’s opinion correctly observes the importance of the
judiciary’s inherent authority to ensure that the judicial branch receives essential
staffing and facilities, I believe the district court had neither the statutory authority
nor the inherent constitutional authority to set the Court Manager’s salary.
a. Supervisory authority
I agree with the Court that the district court’s supervisory authority permitted
it to find that the commissioners court acted arbitrarily in setting Quiroga’s salary.
11
An appellate court’s role in an appeal from a temporary injunction, which will only
be in effect until the trial and final judgment, is limited because a district court has
broad discretion in denying or granting a temporary injunction and we do not review
the merits of the underlying case. Conlin v. Haun, 419 S.W.3d 682, 686 (Tex.
App.—Houston [1st Dist.] 2013, no pet.). The issue on appeal is not whether we
agree with the district court’s finding. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 242 (Tex.1985) (stating in review of whether trial court abused its
discretion in striking the defendant’s answer, “[t]he mere fact that a trial judge may
decide a matter within his discretionary authority in a different manner than an
appellate judge in a similar circumstance does not demonstrate that an abuse of
discretion has occurred.”); De Mino v. Sheridan, 176 S.W.3d 359, 373 (Tex. App.—
Houston [1st Dist.] 2004, no pet.) (quoting Downer in affirming temporary
injunction).
9
But I disagree that the district court’s supervisory authority permits it to set
Quiroga’s salary.12
The Texas Constitution grants a district court “appellate jurisdiction and
general supervisory control over the County Commissioners Court.” TEX. CONST.
art. 5, § 8. A relatively new section in the Government Code provides that
commissioners courts “set” a “salary range” for a court administrator.13 Under that
statute, the 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.” TEX. GOV’T CODE ANN. § 75.401(d) (West Supp. 2015).
The commissioners court’s approval of budget is a legislative function.
Comm’rs Court of Caldwell Cty. v. Criminal Dist. Attorney, Caldwell Cty., 690
S.W.2d 932, 936–38 (Tex. App.—Austin 1985, writ ref’d n.r.e.). Setting the “salary
range” for a court administrator is a “discretionary duty” of the commissioners court:
“the fiscal policy of the county is the discretionary responsibility of the
12
The Texas Supreme Court’s analysis of statutory supervisory authority provides a
useful paradigm for approaching the limits of a court’s inherent authority, which I
discuss in further detail in the following section.
13
This section was approved by the Legislature and signed by the Governor before the
hearing on the temporary injunction but was not effective until September 1, 2015.
Both parties have argued the case based on the premise that the law applies to this
dispute because the commissioners meeting on June 9 was “in anticipation of” the
effective date of the statute. The June 9 commissioners court order specially refers
to this bill and is effective as of September 1. Henry also testified that the County’s
order setting the position and salary would be effective on September 1, 2015.
10
Commissioners Court.” Hooten v. Enriquez, 863 S.W.2d 522, 532 (Tex. App.—El
Paso 1993, no writ); see Comte v. Smith Cty. Comm’rs’ Court, No. 06-14-00086-
CV, 2015 WL 6521198, at *5 (Tex. App.—Texarkana Oct. 28, 2015, no pet. h.)
(mem. op.) (setting court appointed attorney’s salaries was discretionary duty of
commissioners court).
“While a district court may enjoin an act of the commissioners court that is
beyond [its] authority or otherwise performed arbitrarily, capriciously, collusively,
fraudulently, or in abuse of its discretion, the district court has no authority to direct
a public official in how to perform a discretionary act.” Hooten, 863 S.W.2d at 532;
Weber v. City of Sachse, 591 S.W.2d 563, 566 (Tex. Civ. App.—Dallas 1979, writ
dism’d); cf. Mauzy v. Legislative Redistricting Bd., 471 S.W.2d 570, 573, 575 (Tex.
1971) (holding that enactment of invalid statute attempting apportionment of state
into representative districts did not “rob[] the Board of jurisdiction to apportion the
state into such districts” and stating “mandamus never lies to control official
discretion of a state board”). A district court may not order the commissioners court
to pay a certain salary “or direct a particular county commissioner to cast his or her
vote in a particular manner. . . . [T]he district court was only empowered to adjudge”
the salary “as being improper and thus void.” Hooten, 863 S.W.2d at 533. A district
court’s supervisory authority is limited and “is not used to substitute the discretion
of the district court for that of the public official.” Vondy v. Comm’rs Court of
11
Uvalde Cty., 620 S.W.2d 104, 109 (Tex. 1981); see also Hooten, 863 S.W.2d at 532–
33 (judiciary cannot “substitute[] its own judgment for that of the Commissioners
Court”). When a district court reviews a government official’s statutory
discretionary duty, it may find that the official acted arbitrarily, but it must not read
the official’s discretion out of the statute.
The limits of a district court’s supervisory authority have been repeatedly
recognized by Texas courts. In Ector County v. Stringer, a constable brought suit
contending that the commissioners court was not paying him a reasonable salary.
843 S.W.2d 477 (Tex. 1992). The trial court determined a salary that it deemed to
be reasonable. Id. at 478. The Texas Supreme Court held that the district court did
not have jurisdiction to make this salary determination. Id. at 479. While the district
court had general supervisory control over the county commissioners court, that
authority could only be invoked when the commissioners court “acts beyond its
jurisdiction or clearly abuses the discretion conferred on it by law.” Id. (quoting
Tarrant Cnty. v. Shannon, 104 S.W.2d 4, 9 (Tex. 1937)). When the commissioners
court abuses its discretion, “the district court may order the commissioners court to
. . . set a reasonable salary,” but it “cannot substitute its discretion for that of the
commissioners by making that determination itself.” Id. A district court’s role in
reviewing the commissioners court’s fiscal decisions “is necessarily a limited one.”
Id.
12
[A] court has no right to substitute its judgment and discretion for the
judgment and discretion of the governing body upon whom the law
visits the primary power and duty to act. Of course, if such governing
body acts illegally, unreasonably, or arbitrarily, a court of competent
jurisdiction may so adjudge, but there the power of the court ends.
Id. (quoting Lewis v. City of Fort Worth, 89 S.W.2d 975, 978 (Tex. 1936)). The
Court concluded that while “the district court may order the commissioners court to
exercise its discretion,” it “cannot tell the commissioners what decision to make.”
Stringer, 843 S.W.2d at 479.
Similarly, in another case, the appellate court held that the trial court did not
err in refusing to dictate to the commissioners court an amount “as to what is a
reasonable salary” and instead ordering the commissioners court to set a reasonable
salary, after finding that the commissioners court had set an unreasonable salary for
a justice of the peace. White v. Comm’rs Court of Kimble Cty., 705 S.W.2d 322, 326
(Tex. App.—San Antonio 1986, no writ); see also Cty. of Dallas v. Blankenship,
No. 05-98-01630-CV, 2001 WL 1184062, at *2 (Tex. App.—Dallas Oct. 9, 2001,
pet. denied) (mem. op., not designated for publication) (citing Stringer for
proposition that trial court may review commissioners court salary decision to
determine whether it is arbitrary “but may not substitute its discretion for that of the
commissioners[] court”).
Nor can a county executive official set an employee’s salary when that
discretion is granted to the commissioners court. Caldwell Cty., 690 S.W.2d at 935.
13
Caldwell County involved a statute that provided that salaries in the prosecutor’s
office are “fixed” by the prosecuting attorney, “subject to the approval of the
commissioners court.” Id. (quoting 1973 Tex. Gen. Laws, ch. 127, at 275). The
Austin court held that the prosecutor could propose a budget for these salaries but
that the commissioners court retained discretion to set the budget and salaries.
Caldwell County explained the policy rationale behind the rule that only the
Legislature can set a position’s salary. A contrary result would “assure a troubled
and unworkable state of affairs in county government.” Id. at 937. It would also
undermine “the public debate, the political-adjustment process, the public-interest
evaluation, the taxpayer-interest consideration, and the mandatory correlation of
county revenue and expenditure estimates which comprise the legislative process.”
Id. at 938. The court explained:
Of what use are public hearings, public debate, and so forth if the
amounts “fixed” by the prosecuting attorney are not open to change by
the only body authorized to raise the revenue to pay them and make the
other legislative determinations referred to above? If they are not open
to change, there is no practical reason for them to be discussed or
subjected to the political and legislative process. They are outside such
process and the result of dictation by a single officer of the executive
branch, an anomaly in any governmental budget-making process.
Id. at 938. The court also observed that a dispute between the prosecutor’s office and
the county commissioners would be difficult to resolve by permitting district courts
to decide the reasonableness of the requested salary because that would involve the
judiciary in an essentially legislative function of determining “‘reasonableness’ . . .
14
in complex circumstances.” Id. If the commissioners court retained this discretionary
authority under the statute in Caldwell County, it surely must exist under the newly-
enacted statute which expressly requires that the salary range be set by the
commissioners court. TEX. GOV’T CODE ANN. § 75.401 (West Supp. 2015).14
b. Inherent authority
The Court states that the district court’s temporary injunction was proper
because its inherent power “alone” grants it authority to do so. The temporary
injunction order, however, does not rely on the judiciary’s inherent authority.15 In
any event, in my opinion, the judiciary’s inherent authority does not provide
authority under these facts for the district court to set Quiroga’s salary.
Courts have “inherent power to act to protect and preserve the proper
administration of the judicial system. . . . The judicial system of this state cannot
function properly if those officials who are responsible for carrying out certain duties
in that process are not properly compensated.” Vondy, 620 S.W.2d at 109–10. Thus,
14
It is different when the Legislature expressly grants the judiciary authority to set the
salary for certain employees. See Mays v. Fifth Court of Appeals, 755 S.W.2d 78,
79 (Tex. 1988). Although the new statute allows the judges for whom the court
administrator works to set the administrator’s salary within the range approved by
the commissioners court, the judges are not allowed to set that salary range.
15
An amended petition filed after the close of the evidence at the temporary injunction
contends, for the first time, that injunctive relief is needed “to avoid interference
with distinctly judicial functions under the Separation of Powers” and that County
Judge Henry violated “the independence of” the court and the “inherent powers” of
the judiciary. The clerk’s record does not contain any order granting a trial
amendment.
15
courts have “inherent power to hire and require salaries be paid for” certain judicial
employees performing tasks of judicial administration. Id. at 110.
But this inherent authority is not unlimited. Dist. Judges of 188th Judicial
Dist. v. Cty. Judge, 657 S.W.2d 908, 909 (Tex. App.—Texarkana 1983, writ ref’d
n.r.e.). For example, inherent authority does not allow judges to set their own
salaries. The Texas Constitution provides that “the Legislature shall provide for the
. . . compensation of Justices and Judges of the Appellate Courts and District and
Criminal District Courts”—not the judicial branch. TEX. CONST. art. V, §1-a(1).
The Texas Supreme Court in Vondy stated that, while the judiciary has the
inherent power to require the commissioners court to adequately compensate certain
court-appointed positions that the judiciary views as necessary for the proper
administration of justice, the determination of the amount that constitutes a
“reasonable salary” is a matter of “determination for the commissioners court.” 620
S.W.2d at 108–09. Determining what is a reasonable salary in light of budgetary
considerations falls within the legislative function performed by the commissioners
court. See Harris Cty. v. Nagel, 349 S.W.3d 769, 794 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied) (“Under Texas law, the principal organ of county
government is the commissioners court. Its powers and duties include aspects of
legislative, executive, administrative, and judicial functions. In creating the county,
the commissioners court performs a legislative function. The allocation of county
16
funds is a policymaking determination.” (internal citations and quotation marks
omitted)). The Vondy Court concluded that the district court should have compelled
the commissioners court to set a reasonable salary for the office in question. 620
S.W.2d at 104–05, 109; see also Comm’rs Court of Titus Cty. v. Agan, 940 S.W.2d
77, 80 (Tex. 1997) (“[I]n reviewing a Commissioners Court judgment for abuse of
discretion, the district court has no right to substitute its judgment and discretion for
that of the Commissioners Court. The district court may order the Commissioners
Court to exercise its discretion, but cannot tell the Commissioners what decision to
make” (internal citations omitted)).
In re El Paso County Commissioners Court dealt with a dispute between the
El Paso County commissioners court and the El Paso County judges over a
courthouse expansion project. 281 S.W.3d 16, 18–22 (Tex. App.—El Paso 2005, no
pet.). Relying on the judiciary’s inherent power to require the legislative branch to
provide facilities for the judiciary, the district court froze $22 million previously
allocated for the project until the dispute could be resolved. Id. at 21. The El Paso
court stated that “sound public policy considerations demand that when the judiciary
seeks to use its inherent power to overcome the legislative prerogative, it must be
held to a high standard and must assume the burden of showing that the funds sought
to be compelled are essential” to its judicial functions. Id. at 28. Thus, while a district
court’s inherent authority “arguably” would permit it to order additional courtroom
17
space, it would not allow the judiciary to dictate “the amount which must be
expended” on the facilities. Id. at 28 n.8.
Under Vondy and El Paso County Commissioners Court, the district court’s
inherent authority does not reach so far as to allow a district court to bypass the
commissioners court and set Quiroga’s salary itself.
The Court instead relies heavily on Justice Spears’s concurring opinion in
Mays. Justice Spears stated that “a court has the inherent power to compel the
expenditure of those public funds which are reasonably necessary for the court to
efficiently fulfill its constitutional function.” Mays, 755 S.W.2d at 80.
The weight to be given to the “reasonably necessary” standard articulated in
the Mays concurrence is questionable for three reasons. First, Justice Spears’s
concurring opinion, although it was joined in by four other members of the Court,
was dicta because all nine members of the Court agreed on the result on statutory
grounds. Noting that “the inherent powers doctrine has not been used in Texas to
compel funding of specific salary amounts,” a Texas Attorney General Letter
Opinion has since refused to follow the concurring opinion in Mays because “it was
dicta” and, therefore, “cannot control our decision”; it instead followed the reasoning
of District Judges of 188th Judicial District as I do. Tex. Att’y Gen. Op. LO-92-44
(1992). Second, it is unclear whether the “reasonably necessary” standard in the
concurrence is the same as an “essential” or “necessary” standard. See Ted Z.
18
Robertson & Christa Brown, The Judiciary’s Inherent Power to Compel Funding: A
Tale of Heating Stoves and Air Conditioners, 20 ST. MARY’S L.J. 863, 879 (1989)
(“As a practical matter, whether there is any real difference between what is
‘reasonably necessary’ and what is ‘essential’ is not clear.”). But even under a
“reasonably necessary” standard, the inherent powers doctrine “is, in a sense, a ‘last
ditch’ doctrine.” Id. Former Texas Supreme Court Justice Robertson helpfully notes,
“The very conception of inherent power carries with it the implication that its use is
for occasions not provided for by established methods
. . . . When, however, these methods fail . . . then and not until then does occasion
arise for the exercise of the inherent power.” Id.at 880 n. 91 (quoting State ex rel.
Hillis v. Sullivan, 137 P. 392, 395 (Mont. 1913)).
Third, the Mays concurrence concludes by specifically noting that the
Legislature had granted statutory authority to the district judges to set the salary of
the challenged employee:
The judiciary’s power to compel funding is not dependent on legislative
authority. However, in this particular instance, the district judges did
act pursuant to an express statutory mandate in setting the court
reporters’ salaries. TEX. GOV’T CODE ANN. § 52.051 [ ]. They acted
entirely within the scope of that statute, and the statute does not require
that the county commissioners court be provided with notice and
hearing.
19
Mays, 755 S.W.2d at 83 (Spears, J., concurring); see TEX. GOV’T CODE ANN.
§ 52.051 (West 2013) (“An official district court reporter shall be paid a salary set
by the order of the judge of the court.”).
There are good reasons for a high necessity threshold before a court invokes
its inherent authority. See Geoffrey C. Hazard, Jr., et. al., Court Finance and Unitary
Budgeting, 81 YALE L.J. 1286, 1287–88 (1972) (“Substantial reliance upon the
doctrine [of inherent power] . . . may be shortsighted and unwise.”); see also Dist.
Judges of 188th Judicial Dist., 657 S.W.2d at 910 (stating that salary decisions left
to legislative branch have “a presumption of validity” and that the “drastic” step of
departing from separation-of-powers constitutional mandate “should be taken only
on the basis of a detached and objective finding of essentiality”). Two particular
problems are created when the judiciary sets compensation for judicial employees.
First, the judiciary “usurps the appropriation power vested in the legislature.”
Andrew W. Yates, Using Inherent Judicial Power in a State-Level Budget Dispute,
62 DUKE L.J. 1463, 1466 (2013); see id. at 1483 (“When the judiciary’s use of
inherent power ‘diminishes the rights and powers of a coordinate and equal branch,’
the power ‘ceases to act as a check on the other branches and begins to encroach on
their dominion.’”) (quoting Howard B. Glaser, Wachtler v. Cuomo: The Limits of
Inherent Power, 14 PACE L. REV. 111, 137 (1994)); see also Bd. of County Comm’rs
of Weld Cty. v. Nineteenth Judicial Dist., 895 P.2d 545, 548 (Colo. 1995) (“While
20
the separation of powers doctrine prevents another branch of government from
encroaching upon the judiciary, the same principle bars a court from intruding into
the affairs of the legislative or executive branches”); In re Salary of the Juvenile
Dir., 552 P.2d 163, 170 (Wash. 1976) (noting that checks by one branch must not
“undermine the operation of another branch”); Michael Buenger, Of Money and
Judicial Independence: Can Inherent Powers Protect State Courts in Tough Fiscal
Times, 92 KY. L.J. 979, 1031–32, 1038–39 (2004) (“[T]the judiciary must be
exceedingly careful in using its inherent powers, lest it be accused of invading the
province of the legislature and thereby risk undermining public support. . . . Courts
must respect the authority of the legislative branch to set policy through the use of
its appropriation authority, and must, unless faced with exigent circumstances, avoid
the use of inherent powers to countermand legislative funding decisions.”). Courts,
generally, even when relying on inherent authority in making funding-related
decisions, “have relied at least partially on express or implied provisions of state
constitutions and statutes for their arguments. It seems safe to assume that the
decisions are often made with a fairly clear idea of legislative sentiment on the issue
of judicial funding,” thereby avoiding “a direct confrontation with their co-equal
partner in state government
. . . .” Hazard, 81 YALE L.J. at 1288. Here, if we were to apply this principle and
21
look to the express provisions of the statute directly on point, we would allow the
commissioners court to set the salary range.
“Second, an inherent-power order of this type moves a portion of the state
budget outside the political arena. In bypassing the political process, courts threaten
their public support and popular legitimacy.” Yates, 62 DUKE L.J. at 1466, 1484
(“[W]hen a court wades into a debate about state funding priorities, whatever
supposedly disinterested decision it renders becomes a political issue. In addition,
courts diminish their legitimacy by removing a portion of the state budget from
public debate. The budget process gives the public, through its representatives, a
voice in the distribution of public resources.”); Buenger, 92 KY. L.J. at 1040 (“The
use of inherent power to compel funds can be viewed as antidemocratic, not only
creating a potentially volatile situation vis-a-vis the legislature, but also impugning
the judiciary’s credibility in the eyes of the public.”); id. at 1045 (“The idea of courts’
‘ordering’ the expenditure of public funds for their operations—as if they were
rendering a final judgment in a disputed case—is at odds with the give-and-take of
the legislative process, whose primary actors must balance competing and often
amorphous interests and demands in shaping public policy.”); Hazard, 81 YALE L.J.
at 1289–90 (“A judicial requisition of funds from a taxing agency, such as a county
or city, is in essence a judicial arrogation of discretion conferred, for better or worse,
on the popularly-elected branches of government. . . . No important function of
22
government can be maintained over the long run without public debate, political
commitment, and the exercise of community responsibility as expressed by bodies
dependent on popular assent.”).
The Stringer rule of allowing a district court to find that the commissioners
court acted arbitrarily and then return the issue to the commissioners court to act
within its discretion (instead of replacing the commissioners court’s discretion with
its own) allows the legislature—the branch of government best suited to determine
priorities and balance interests as part of the budget process—to correct itself and
reinforces the necessity threshold. While Stringer did not address a court’s inherent
authority, its rule is a wise limitation on a court’s inherent authority, at least at this
stage of the preceding when the commissioners have “gotten it wrong” the first time.
Other states have recognized the caution that must be exercised when the
judiciary relies on its inherent authority in funding disputes with a legislative body.
See. e.g., In re Alamance Cty. Court Facilities, 405 S.E.2d 125, 127 (N.C. 1991).
There, a trial court argued that the county commissioners did not provide sufficient
funds for court facilities. The court issued an order requiring the commissioners
court to “immediately take steps to provide adequate facilities” and outlined exactly
which facilities the commissioners had to improve. Id. at 127–28. The North
Carolina Supreme Court vacated the order. In so doing, it reasoned, “[e]ven in the
name of its inherent power, the judiciary may not arrogate a duty reserved by the
23
constitution exclusively to another body . . . . [D]oing what is ‘reasonably necessary
for the proper administration of justice’ means doing no more than is reasonably
necessary.” Id. at 132. When the judicial branch uses its inherent authority to
preserve its power, “[t]he inherent power of the court must be exercised with as much
concern for its potential to usurp the powers of another branch as for the usurpation
it is intended to correct.” Id. at 133. If a court must use its inherent authority and
enter into areas typically reserved to another branch, it “must proceed with a cautious
and cooperative spirit into those areas . . . . ” Id. at 133; see Mays, 755 S.W.2d at 83
(Spears, J., concurring) (stating that “a spirit of mutual cooperation is unquestionably
the people’s best guarantee of a constitutional government”). To minimize the
encroachment on the legislature’s authority, the judiciary must “not only recogniz[e]
any explicit, constitutional rights and duties belonging uniquely to the other branch,
but also seek[] the least intrusive remedy.” In re Alamance Cty. Court Facilities, 405
S.E.2d at 133.
The Supreme Court of Iowa has similarly required the judiciary to exercise
caution in asserting its inherent authority to require the Legislature to provide
funding: “courts should be cognizant it is not the judicial department which
historically allocates available government funds. An unreasoned demand for
budgetary consideration is a threat to the image of and public support for the courts.”
Webster Cty. Bd. of Sup’rs v. Flattery, 268 N.W.2d 869, 874 (Iowa 1978). Noting
24
that inherent authority is a power “‘which must be borne responsibly’” and
“‘cautiously,’” the court went on to state, “it is incumbent upon a court invoking
inherent power to secure indispensable goods, facilities or services to do so in a
manner which clearly communicates and demonstrates to the public the grounds for
the court’s action.” Id. (quoting O’Coin’s, Inc. v. Treasurer of Worcester, 287
N.E.2d 608, 615 (Mass. 1972)). To “legally invoke[]” its inherent authority, the
judiciary must show that its actions are necessary “for the immediate, necessary,
efficient and basic functioning of the court.” Id. at 877.
As the Washington Supreme Court noted in a case where a trial court erred
when it directed the county commissioners to increase the salary of the County
Director of Juvenile Services:
By its nature, litigation based on inherent judicial power to finance its
own functions ignores the political allocation of available monetary
resources by representatives of the people elected in a carefully
monitored process . . . . The unreasoned assertion of [courts’] power to
determine and demand their [courts’] own budget is a threat to the
image of and public support for the courts. In addition, such actions
may threaten, rather than strengthen, judicial independence since
involvement in the budgetary process imposes upon the courts at least
partial responsibility for increased taxes and diminished funding for
other public services.
In re Salary of Juvenile Dir., 552 P.2d 163, 172–73 (Wash. 1976).16
16
The court therefore held that the judiciary in that situation bears the “highest burden
of proof” of demonstrating that (1) the funds “are reasonably necessary” and (2)
other methods for resolving the funding dispute have failed. Id. at 173–74. The proof
25
Based on these authorities, I believe that we should apply an “essential”
standard to determine whether the district court could set a reasonable salary for the
Court Manager position. But even under the less stringent “reasonably necessary”
standard used in Justice Spears’s concurring opinion in Mays, the trial judges did not
meet their “heavy burden” to demonstrate that it is reasonably necessary to pay the
Court Manager $113,000 annually for four main reasons.
First, the trial judges made no effort to hire anyone at the new salary; indeed,
there is no evidence whether Quiroga would accept the new position—with its
reduced duties—for the correspondingly reduced salary. Second, the trial judges did
not present any evidence of whether the new Court Manager duties require a full-
time employee or a part-time employee. It may be reasonable for the County in
allocating scarce resources to pay $113,000 for the work previously performed by
one person but refuse to pay roughly $178,000 for two people to perform these
functions.17 Third, the commissioners court has taken steps to provide assistance to
must be “clear, cogent, and convincing.” Id. at 174. The court concluded that there
was no “clear, cogent and convincing showing [that] respondent’s determination
that the salary paid to the Director of Juvenile Services was so inadequate that the
court [could] not fulfill its duties.” Id. at 175. Therefore, the mandamus order setting
the employee’s compensation “imposed an improper check on the function of the
legislative branch of government.” Id.
17
$178,000 is the sum of the salaries for two positions: (1)$113,000, which is the
position’s former salary and salary selected by the district court, plus (2) $65,000, which
is the amount paid for another county employee subsequently hired to perform some
administrative duties for the County Judge that are no longer Quiroga’s responsibility. The
County’s expense would also be increased by providing employee benefits to two
employees instead of one.
26
the trial judges by creating the Court Manager position with the job description
requested by the trial judges and agreeing that the Court Manager be hired by, report
to, and be supervised solely by the trial judges. Finally, and significantly, we are not
addressing a situation in which the district court has found that a commissioners
court has, multiple times, acted arbitrarily in setting the salary of an employee whose
services are necessary to carry out the judiciary’s responsibilities and, thereby,
attempted to evade review of its decision.
To the extent the commissioners court acted arbitrarily in refusing to set a
reasonable salary range, it has done so only once. Giving credence to the
constitutional directive that the branches of government not encroach on each other’s
functions, the district court should have returned the issue of setting Quiroga’s salary
to the commissioners court to be determined in accordance with its legislative
functions, rather than performing that function itself. In other words, it was not
“reasonably necessary,” at this stage of the proceeding, for the district court to set
the Court Manager’s salary; it should have first allowed the commissioners court an
opportunity to correct its mistake and set a reasonable salary. See Vondy, 620 S.W.2d
at 109; cf. Yates, 62 DUKE L.J. at 1463 (arguing state courts should invoke inherent
power against state legislatures in budget disputes “only under a standard of absolute
necessity to perform the duties required by federal and state constitutional law”
because such “standard respects the separation of powers and preserves the
27
judiciary’s public legitimacy”). Presenting this opportunity to the commissioners
court, which did make an effort—albeit an unsuccessful one—to set a reasonable
salary for the Court Manager position, would show the caution the judicial branch
should take before encroaching on traditional legislative functions.18
In conclusion, when the district court concluded that the commissioners court
arbitrarily set too low of a salary for the new Court Manager position, it should have
ordered the commissioners court to perform its statutory duty and set a new—and
reasonable—salary range for the position. Cf. Douthit v. Ector Cty, 740 S.W.2d 16,
18 (Tex. App.—El Paso 1987, writ denied) (ordering trial court to mandate
commissioners court to establish reasonable amount of compensation for elected
constable when commissioners court abused discretion by paying $1 annual salary).
18
Evidence was presented at the temporary injunction hearing that the “Court Systems
continued to operate” for many months without the Court Manager position being
filled. This testimony arguably provides some support for the County’s position that
the Court Manager role was not “reasonably necessary” for the efficient operation
of the judiciary.
The trial judges, who bore the burden of proof, failed to offer any testimony
regarding whether the courts were operating efficiently without anyone filling this
role, the judicial process was significantly slowed, or other judicial tasks were not
being accomplished because the position was unfilled. Nevertheless, the County
itself recognized the necessity of the position when it agreed to the trial judges’
request twenty years ago and again more recently to fill this position. Thus, while
the “continued to operate” testimony presents some evidence that the Court
Manager position was not reasonably necessary, the district court was free to
disregard it in ordering the County to re-establish the position. The trial judges’
failure to present any testimony regarding court inefficiencies, however, supports
my conclusion that it was not necessary to set the Court Manager’s salary at this
time.
28
By setting what it believed was a reasonable salary, the district court “substituted
its own judgment” on the “fiscal policy of the county” for that of the commissioners
court. Hooten, 863 S.W.2d at 532–33. Such an attempt exceeds a court’s statutory
supervisory authority and is not supported by the judiciary’s inherent power.
2. Abuse of Discretion
In addition to this legal error, the district court abused its discretion in setting
the Court Manager’s salary as the same salary as the Court Director’s based on the
facts.
As the applicants for a temporary injunction, the trial judges bore the burden
of proof to establish a “‘probable right of recovery,’ sometimes referred to as
‘likelihood of success on the merits.’” Intercontinental Terminals Co., LLC v. Vopak
N. Am., Inc., 354 S.W.3d 887, 897 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Thus, in seeking an order of reinstatement to a different position than previously
existed, the trial judges had to show, not only that the salary set by the commissioners
court for this new positon was arbitrary, but also that the previous salary of $113,000
was the reasonable salary for this new position. The trial judges offered no such
evidence except for the salary survey they performed. But that survey did not reach
any conclusion regarding what would be a reasonable salary.
The trial judges argue that the district court issue did not err in setting this
salary because the temporary injunction was preserving the status quo. I disagree for
29
two reasons. First, the injunction did not preserve the status quo; it created a new
position with new duties. The temporary injunction implemented two changes in
Quiroga’s position: first, during the pendency of the suit, Quiroga would be
supervised only by the Local Administrative Judge and second, she would no longer
perform “any duties relating to the law library, pretrial release, or recovering
costs.”19
The new job, therefore, involves considerably less responsibility than the old
job. According to County Judge Henry, the Court Manager’s position handles
approximately 40% of the (old) Court Director’s duties and supervises 25% of the
employees. Drummond, Henry’s chief of staff, testified that these responsibilities
“were a significant portion of her job” before that role was split and retitled Court
Manager. Commissioner Ryan Dennard also testified that her responsibility for
collections was a “core duty” and one in which Quiroga’s performance was
deficient. The trial judges did not controvert this testimony. The staff structure also
suggests that the job responsibilities were significantly reduced. In her prior position,
Quiroga had 16 direct reports; in the new position, she would have 4 or 5, with the
remainder reporting to the commissioners.
19
Quiroga’s prior job description states that she was to exercise direct supervision
over an Administrative Coordinator, Law Library Coordinator, Court Services
Coordinator, Pretrial Release Supervisor, and Court Communications Coordinator,
as well as supervise all department employees.
30
The district court’s appointment of Quiroga to act in what I have called the
Court Manager position (the Judicial Adminstration Director position less the
responsibilities discussed above) did not preserve the status quo. She had not
occupied that position for almost a year at the time of the injunction. Whatever the
merits of the old salary for the position’s old responsibilities, the district court altered
those responsibilities without altering the compensation. Under the district court’s
order, Quiroga would get all of the pay for only part of the work.
Because of the reduction in the Court Manager’s duties and supervisory role,
the district court abused its discretion by ordering County Judge Henry to direct the
County Treasurer to pay Quiroga her prior salary in this new role and thereby
substituting its salary opinion for that of the commissioners court.
For these reasons, I would reverse the district court’s order that Quiroga be
paid the same salary as her last date of employment in the old position.
Indispensable Parties
While I agree that a district court generally may issue a temporary injunction
in the absence of otherwise indispensable parties, I have some concerns about
applying that principle to a governmental body. But, because the parties at this time
are only disputing one issue—Quiroga’s salary—and the County did not raise the
indispensable-parties issue in the district court, it is unnecessary to decide if this
31
general rule applies here, given that I have already concluded that the portion of the
order setting her salary was invalid.
I do want to emphasize that the Court’s opinion does not address whether the
other commissioners are indispensable parties before the trial on the merits and the
request for a permanent injunction.20 Nor does the Court address the enforceability
of the injunction by contempt.
Any permanent injunction granted without naming the other commissioners
as parties may create difficulties in enforcement and constitutional problems because
each county commissioner is independently elected and independently votes on the
budget. The injunction orders not only County Judge Henry, but, all those “acting in
concert” with him, to reemploy Quiroga and to direct the treasurer to pay Quiroga
her prior salary. It also orders County Judge Henry to provide a copy of the
injunction “to each County Commissioner.” But County Judge Henry is only one of
five commissioners and cannot unilaterally act for the entire court except in those
aspects in which he has authority to do so. The trial judges have not presented any
evidence or legal authority suggesting that County Judge Henry has the unilateral
20
See Vondy, 620 S.W.2d at 105 (noting that, in mandamus proceeding brought by
elected constable against commissioners court, absence of one member of court was
not fundamental error when no objection was made to his absence in trial court
because majority of commissioners were made parties individually and
commissioners court itself was named party).
32
authority to take either action. The Court does not address whether the district court’s
order can compel all of the commissioners to vote in any particular way under the
guise of “acting in concert” with County Judge Henry.
Conclusion
The Court, quoting from Justice Spears’ concurring opinion in Mays, correctly
observes that the legislative and judicial branches need to cooperate in determining
the amount of funding necessary to operate the courts. Slip op. at 75 (quoting Mays,
755 S.W.2d at 82–83 (Spears, J., concurring)); see also Dist. Judges of 188th
Judicial Dist., 657 S.W.2d at 909 (stating our system of checks and balances requires
“harmonious cooperation” among three branches of government). Arbitrarily
denying necessary resources to the judiciary equally weakens the public’s support
and the legitimacy of those holding the purse strings as do excessive demands by the
judiciary made under the umbrella of inherent authority. See 62 DUKE L.J. at 1466,
1484. Cooperation is imperative under our system of equal branches of government.
Here, that cooperation ceased when the parties could not agree on a salary for
an employee that the trial judges wished to retain while the commissioners
questioned her competency. But the issue—and what all parties should have been
focused on—was the relatively straightforward question of a reasonable salary for
the specified list of duties that would be assigned to this new position, a list of duties
that both sides had already approved.
33
Rather than taking steps to resolve the disagreement with objective data, such
as, perhaps, retaining a qualified expert to evaluate pay for similar positions in other
areas, each side offered selective data, accumulated using methods that would never
come close to satisfying a standard of reliability under Daubert and its progeny. See
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); E.I. du Pont de Nemours
& Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). And a stand-off ensued.
Corporate boards—both for-profit and non-profit—routinely rely on outside,
objective experts to determine compensation for certain corporate employees to
ensure that the board complies with its fiduciary responsibilities. The cost of such a
study—or even two if both sides cannot agree on an independent expert—would
probably be less than the attorney’s fees that will be generated in this dispute. More
importantly, the cooperation needed for the judiciary to operate effectively for the
public good requires, at a minimum, that a simple employment issue not result in
turf wars and waste of public funds when common ground abounds. Admittedly, the
issue of what is a reasonable salary for compensating employees in government
service is more complicated than it is in the private sector because of issues
surrounding tax revenue and spending priorities, but absent some revenue issue, this
dispute should be resolved expeditiously in the spirit of cooperation called for by the
Court. Failing that, the commissioners court should be given another opportunity to
determine a reasonable salary for the new positon requested by the trial judges.
34
Harvey Brown
Justice
Panel consists of Justice Jennings, Higley, and Brown.
Brown, J., concurring and dissenting
35