Dee Hobbs, Williamson County Attorney v. Dan A. Gattis, Williamson County Judge Terry Cook, Cynthia Long, Valerie Covey, and Larry Madsen, County Commissioners

Opinion issued October 15, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00025-CV
———————————
DEE HOBBS, WILLIAMSON COUNTY ATTORNEY, Appellant
V.
DAN A. GATTIS, WILLIAMSON COUNTY JUDGE; TERRY COOK,
CYNTHIA LONG, VALERIE COVEY, AND LARRY MADSEN, COUNTY
COMMISSIONERS, Appellees

On Appeal from the 425th Judicial District Court
Williamson County, Texas1
Trial Court Case No. 18-0903-C425

1
This appeal was transferred from the Court of Appeals for the Third District of
Texas to this Court pursuant to its docket-equalization authority. See TEX. GOV’T
CODE § 73.001 (“The supreme court may order cases transferred from one court of
appeals to another at any time that, in the opinion of the supreme court, there is
good cause for the transfer.”). We are unaware of any conflict between the
precedent of the Court of Appeals for the Third District and that of this Court on
any relevant issue. See TEX. R. APP. P. 41.3.
 MEMORANDUM OPINION

This is an appeal from the trial court’s grant of a plea to the jurisdiction. Dee

Hobbs, acting in his official capacity as the Williamson County Attorney, sued the

Williamson County Judge and Williamson County Commissioners, all in their

official capacities, seeking a declaratory judgment that certain policies and orders

enacted by the Commissioners Court were void for exceeding the power of the

Commissioners Court. In particular, Hobbs challenged a policy that limited the

salary he could offer a newly hired or promoted employee.2 The appellees, the

county judge and county commissioners, filed a plea to the jurisdiction arguing that

there was no justiciable controversy, noting that Williamson County was both a

plaintiff and a defendant. The trial court granted the plea to the jurisdiction and

dismissed the entire case.

On appeal, Hobbs argues that the trial court erred because: (1) his pleading

alleged facts demonstrating the court’s jurisdiction; (2) he has standing because the

Government Code authorizes him to “fix” the salaries of his employees and there is

a justiciable controversy because the actions of the Commissioners Court invade

his core sphere of authority; and (3) the district court has supervisory jurisdiction

over the Commissioners Court.

2
Hobbs also challenged a policy that centralized information technology (IT)
support. He has not, however, challenged on appeal the trial court’s dismissal of
that claim. See TEX. R. APP. P. 38.1.
2
 We affirm.

Background

Because this is an appeal from a trial court’s ruling on a plea to the

jurisdiction in which no jurisdictional evidence was provided, our recitation of the

background comes from Hobbs’s live pleading. The live pleading alleged the

following facts.

10. The Williamson County Commissioners Court (hereinafter,
“Commissioners Court” or “Defendants”) annually adopts a budget
for the fiscal operations of the County. Included in the annual budget
are line item budgets for the set salaries of each approved position in
the County departments and elected offices. These salaries are set
within a pay range assigned to each position also approved by
Commissioners Court.

11. Additionally, the Commissioners Court has adopted an
Employee Policy Manual that is periodically revised and updated. The
Employee Policy Manual includes policies regarding salary levels for
newly hired employees and promotions and transfers of current
employees.

12. The current version of the Employee Policy Manual, passed by
Commissioners Court on May 29, 2018, includes significant changes
and restraints on elected officials’ use of budgeted salary funds. For
example, the Policy limits the County Attorney’s ability to fix the
salary of a newly hired employee to only 25% above the minimum of
the pay range for that position, not to exceed the amount currently
budgeted for the position. Additionally, when a current employee is
promoted to a position with a higher pay grade, the County Attorney’s
ability to fix the salary is again limited to only 25% above the
minimum of the pay range for that position or 10% above the current
salary, whichever is greater and without exceeding the amount
currently budgeted for that position. While the Policy also provides
that requests outside of the policies can be made with approval by the
Commissioners Court; in practice, such requests are routinely denied

3
 or not considered, not because the Commissioners Court did not find
sufficient reason to exceed to salary limit, but simply because it
violates the Policy.

13. Now, Commissioners Court seeks to further limit the County
Attorney’s authority to perform his core functions by significantly
lowering the 25% cap, thus continuing to restrict the County
Attorney’s ability and authority to recruit, retain, and fully utilize his
employees to accomplish his constitutional and statutory duties.

14. The current and proposed policies on salary limits affect not
only the County Attorney, but all Williamson County elected officials,
as the policies are applied to positions in all elected offices.

The appellees filed a plea to the jurisdiction and a general denial. They

argued that Hobbs had no authority to bring suit in his official capacity, and that by

doing so, Hobbs had cast Williamson County in the position of both plaintiff and

defendant. The appellees argued that they did not invade his sphere of authority

because his challenge related to a budgetary issue within the purview of the

Commissioners Court. They also argued that the employee policy did not interfere

with Hobbs’s statutory right to fix the salaries of his employees because that

statutory provision relates to proposing the salaries of employees for approval by

the Commissioners Court.

The trial court held a non-evidentiary hearing and permitted the parties to

make arguments and answer questions. The court later granted the plea, and Hobbs

appealed.

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 Analysis

I. Legal standards

A. Plea to the jurisdiction

A plea to the jurisdiction challenges a trial court’s subject matter

jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26

(Tex. 2004). A plea to the jurisdiction can challenge the plaintiff’s pleadings alone

or it can be accompanied or refuted by jurisdictional evidence. Heckman v.

Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012); Miranda, 133 S.W.3d at 227;

Gattis v. Duty, 349 S.W.3d 193, 200 (Tex. App.—Austin 2011, no pet.). Where, as

in this case, the plea to the jurisdiction does not challenge the existence of

jurisdictional facts—and no party submits jurisdictional evidence to the court—the

court’s analysis relies on the plaintiff’s pleading, which is construed “liberally,

taking all factual assertions as true.” Heckman, 369 S.W.3d at 150; see Gattis, 349

S.W.3d at 200. “Mere unsupported legal conclusions are insufficient.” Gattis, 349

S.W.3d at 200. “If the pleadings fail to allege sufficient facts to affirmatively

demonstrate the trial court’s jurisdiction but also fail to affirmatively demonstrate

incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the

plaintiff should be afforded the opportunity to amend.” Id. (citing Miranda, 133

S.W.3d at 226–27). “If, on the other hand, the pleadings affirmatively negate the

existence of jurisdiction, then a plea to the jurisdiction may be granted without

5
allowing the plaintiff an opportunity to amend.” Id. (citing Miranda, 133 S.W.3d at

227).

On appeal, we review a trial court’s ruling on a plea to the jurisdiction de

novo. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512

(Tex. 2019) (citing Miranda, 133 S.W.3d at 226).

B. Subject matter jurisdiction

“Subject matter jurisdiction is essential to the authority of a court to decide a

case.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.

1993). “Subject matter jurisdiction requires that the party bringing the suit have

standing, that there be a live controversy between the parties, and that the case be

justiciable.” State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (citing

Tex. Ass’n of Bus., 852 S.W.2d at 443). “If the district court lacks jurisdiction, in

any of these senses, then its decision would not bind the parties.” Id. A decision

that does not bind the parties is a prohibited advisory opinion. Id.; see Valley

Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam)

(“Under article II, section 1 of the Texas Constitution, courts have no jurisdiction

to issue advisory opinions.”); Patterson v. Planned Parenthood of Hous. & Se.

Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998) (“The courts of this state are not

empowered to give advisory opinions.”); see also TEX. CONST. art. II, § 1

(separation of powers).

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 Standing “focuses on the question of who may bring an action.” Patterson,

971 S.W.2d at 442. “A court has no jurisdiction over a claim made by a plaintiff

who lacks standing to assert it.” Heckman, 369 S.W.3d at 150. Standing requires

the existence of a controversy between the parties “at every stage of the legal

proceedings,” Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001), and “a justiciable

injury that gives rise to a real controversy which judicial action can resolve.” Fin.

Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 591 (Tex. 2013) (citing Tex.

Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 517–18 (Tex. 1995)); see

TEX. CONST. art. I, § 13 (“All courts shall be open, and every person for an injury

done him, in his lands, goods, person or reputation, shall have remedy by due

course of law.”).

The requirement that there be a live controversy requires a court to consider

whether the claim alleged “uncertain or contingent future events that may not

occur as anticipated or may not occur at all.” Patel v. Tex. Dep’t of Licensing &

Regulation, 469 S.W.3d 69, 78 (Tex. 2015). A claim alleging only uncertain or

contingent future events is not justiciable because the judicial relief sought will not

resolve an actual controversy. See Heckman, 369 S.W.3d at 147; Gomez, 891

S.W.2d at 245.

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 C. Declaratory judgment action

“A declaratory judgment is appropriate only if a justiciable controversy

exists as to the rights and status of the parties and the controversy will be resolved

by the declaration sought.” Bexar Metro. Water Dist. v. City of Bulverde, 234

S.W.3d 126, 130 (Tex. App.—Austin 2007, no pet.); see Brooks v. Northglen

Ass’n, 141 S.W.3d 158, 163–64 (Tex. 2004); Bonham State Bank v. Beadle, 907

S.W.2d 465, 467 (Tex. 1995). “A declaratory judgment action does not vest a court

with jurisdiction ‘to pass upon hypothetical or contingent situations, or to

determine questions not then essential to the decision of an actual controversy,

although such questions may in the future require adjudication.’” Bexar Metro.

Water Dist., 234 S.W.3d at 130 (quoting Firemen’s Ins. Co. v. Burch, 442 S.W.2d

331, 333 (Tex. 1968)).

II. Hobbs’s live pleading did not allege a justiciable claim

In his live pleading, Hobbs alleged that the Williamson County

Commissioners Court exceeded its authority by enacting policies and issuing

orders that limited and restricted his use, as the county attorney, of funds that had

been approved in the County budget. He further alleged that the Commissioners

Court interfered with his ability to carry out his statutorily mandated duties and

usurped his statutory authority to “fix the salaries” of his employees.

8
 A. Authority and role of the commissioners court

A commissioners court is a county’s principal governing body, with

legislative, executive, administrative, and judicial functions. Comm’rs Ct. v. Agan,

940 S.W.2d 77, 79 (Tex. 1997). The Texas Constitution provides that a

commissioners court “shall exercise such powers and jurisdiction over all county

business, as is conferred by this Constitution and the laws of the State, or as may

be hereafter prescribed.” TEX. CONST. art. V, § 18(b). “In the exercise of its powers

and jurisdiction over county business, [a] [c]ounty [c]ommissioners [c]ourt has

implied authority to exercise broad discretion to accomplish the purposes

intended.” Griffin v. Birkman, 266 S.W.3d 189, 194–95 (Tex. App.—Austin 2008,

pet. denied). “Constitutional and statutory provisions conferring authority upon [a]

[c]ommissioners [c]ourt should be broadly and liberally construed to ascertain the

scope of the authority granted either expressly or by necessary implication.” Id. A

commissioners court also has “specific statutory authority to oversee the fiscal

operation of the county by approving and authorizing a budget.” Id. (citing TEX.

LOC. GOV’T CODE §§ 111.001–.095).

A commissioners court has broad discretion on budgetary decisions, and

such decisions are ordinarily protected from judicial scrutiny by the separation of

powers doctrine. See TEX. CONST. art. II, § 1. “The [budget] process is political. It

combines inextricably the two legislative powers of ‘taxation’ and ‘appropriation,’

9
the latter being a distribution and setting aside of parts of the total available

revenue among the various government functions, operations, and programs.”

Comm’rs Ct. v. Crim. Dist. Atty, 690 S.W.2d 932, 934 (Tex. App.—Austin 1985,

writ ref’d n.r.e.).

While a commissioners court enjoys broad discretion regarding budgetary

concerns, its power is not unlimited; it is subject to certain review powers of the

district court. Griffin, 266 S.W.3d at 195. In particular, a commissioners court and

county officers may not interfere with or usurp the duties delegated by the Texas

Constitution and by statutes to independent county officials and their employees.

Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961); Harris Cty. v.

Coats, No. 14-17-00732-CV, 2020 WL 581184, at *8 (Tex. App.—Houston [14th

Dist.] Feb. 6, 2020, no pet.); Griffin, 266 S.W.3d at 195.

B. Hobbs’s live pleading did not demonstrate the existence of a live
controversy or standing.

1. No live controversy

In his live pleading, Hobbs sought a declaration that the Commissioners

Court’s orders and policies restricting the use of budgeted salary funds when the

county attorney hires a new employee or transfers or promotes an existing one

were void as exceeding its authority. The live pleading described the policy

expressed in the Employee Policy Manual. Hobbs did not allege that any particular

dispute existed between him and the appellees. Instead, he alleged that the policies

10
“hamper[ed]” his ability “to manage and utilize the salary funds that have been

previously approved and budgeted” “to attract, employ, and retain qualified

individuals needed for these positions.” The live pleading did not include any

factual allegations that the employees or potential employees who would be willing

to accept jobs possibly on the lower end of the stated salary range were

incompetent to carry out the assigned or delegated functions of the county

attorney’s office. There were also no factual allegations that potential employees

who were competent to do the work were unwilling to accept the jobs when

offered a salary near the lower end of the salary range. And there were no factual

allegations indicating that the county attorney has been unable to perform required

duties because desired candidates refused the offer to work at the lower end of the

pay scale and the Commissioners Court rejected a request to offer a salary in the

budgeted amount. Instead, the live pleading alleged that the policies could create a

problem or hamper the effectiveness of the county attorney at a hypothetical future

time. This is an allegation of an uncertain or contingent future controversy, not an

allegation of a live controversy. See Heckman, 369 S.W.3d at 147; Gomez, 891

S.W.2d at 245.

2. No standing

In addition to not alleging a live controversy, the pleading does not allege

facts showing that, in his official capacity, Hobbs suffered a distinct and

11
individuated injury. See Gattis, 349 S.W.3d at 202. Hobbs has argued that the

policy limiting employee salaries would prevent him from hiring competent,

qualified employees to help him fulfill his statutory duties. When acting in his

official capacity as the county attorney, Hobbs represents Williamson County.

Therefore, to the extent that an injury as alleged could be shown, the injured party

would be the county itself, not Hobbs. See Tex. A & M Univ. Sys. v. Koseoglu, 233

S.W.3d 835, 844 (Tex. 2007) (suits against a governmental official in his official

capacity are suits against the governmental entity against whom liability is sought

not against the official personally). Hobbs has not shown that he, as county

attorney, “has or imminently will suffer an invasion of some legally cognizable

interest that is sufficiently unique” to him and that will ensure he has “a sufficient

personal stake in the controversy so that the lawsuit would not yield a mere

advisory opinion or draw the judiciary into generalized policy disputes that are the

province of other branches.” Stop the Ordinances Please v. City of New Braunfels,

306 S.W.3d 919, 927 (Tex. App.—Austin 2010, no pet.).

To the contrary, Hobbs acknowledged in his pleading that the county

attorney has no individual stake differing from that of other Williamson County

elected officials. Accordingly, we hold that Hobbs, acting in his official capacity,

lacked standing to seek a declaratory judgment as pleaded in this case. Because

12
there is no live controversy and no standing, this case is not justiciable. See

Norwood, 418 S.W.3d at 590–91; Garcia, 893 S.W.2d at 517–18.

III. The district court does not have supervisory jurisdiction over this case.

Hobbs also argues that he has invoked the district court’s supervisory

jurisdiction over the Commissioners Court. The Texas Constitution provides: “The

District Court shall have appellate jurisdiction and general supervisory control over

the County Commissioners Court, with such exceptions and under such regulations

as may be prescribed by law.” TEX. CONST. art. V, § 8; see Agan, 940 S.W.2d at

80.

“A party can invoke the district court’s constitutional supervisory control

over a [c]ommissioners [c]ourt judgment only when the [c]ommissioners [c]ourt

acts beyond its jurisdiction or clearly abuses the discretion conferred upon the

[c]ommissioners [c]ourt by law.” Agan, 940 S.W.2d at 80; accord Ector Cty. v.

Stringer, 843 S.W.2d 477, 479 (Tex. 1992). “If [a] [c]ommissioners [c]ourt acts

illegally, unreasonably, or arbitrarily, a district court may so adjudge.” Agan, 940

S.W.2d at 80. However, a district court may not substitute its discretion for that of

a commissioners court. Id.; Ector Cty., 843 S.W.2d at 479. A commissioners court

can act illegally, unreasonably, or arbitrarily by acting contrary to a legal

delegation of power or limitation on its own powers or by exercising powers that

have been delegated to another county officer by the Texas Constitution or by

13
statute. See Pritchard & Abbott, 350 S.W.2d at 335; Gattis, 349 S.W.3d at 198–

203; Griffin, 266 S.W.3d at 197. Hobbs argues that the Commissioners Court both

invaded his sphere of authority and exceeded its own authority.

1. The pleading does not establish that the challenged policy and
orders invade Hobbs’s sphere of authority.

Although Hobbs acknowledges the Commissioners Court’s power to make

the county’s budget, he contends that his sphere of authority includes the right to

set his employees’ salaries. Section 41.106 of the Texas Government Code

provides: “A prosecuting attorney shall fix the salaries of his assistant prosecuting

attorneys, investigators, secretaries, and other office personnel, subject to the

approval of the commissioners court of the county or counties composing the

district.” TEX. GOV’T CODE § 41.106(a). However, analyzing an earlier and

identical statutory provision, the Austin Court of Appeals has held that the

prosecuting attorney’s authority to “fix the salaries” of his employees means only

that he has the power to determine the salaries of his employees for inclusion in the

county’s proposed budget, which may be revised by a commissioners court before

approval. See Comm’rs Ct., 690 S.W.2d at 938–39. The court of appeals explained

that viewing the duty to “fix” salaries as conferring unilateral authority to the

prosecuting attorney would render this expenditure “not realistically subject to the

public debate, the political-adjustment process, the public interest evaluation, the

taxpayer-interest consideration, and the mandatory correlation of our county

14
revenue and expenditure estimates that comprise the legislative process.”3 Id. at

938.

We conclude that, considering the broad budgetary discretion afforded to the

Commissioners Court and the limited authority delegated to the prosecuting

attorney to fix his employees’ salaries, the pleading does not allege an interference

with the county attorney’s authority sufficient to invoke supervisory jurisdiction.

See id. at 934.

2. The pleading does not demonstrate that the Commissioners Court
exceeded its authority by implicitly amending the budget in a
manner contrary to law.

Hobbs also argues that he invoked the district court’s supervisory

jurisdiction by pleading that the Commissioners Court’s policies effectively

amended the annual budget.

3
The court of appeals explained why viewing the authority to fix salaries as
unilaterally belonging to a prosecuting attorney would be “prejudicial to the public
interest.” The court of appeals opined:

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.

Comm’rs Ct. v. Crim. Dist. Atty., 690 S.W.2d 932, 938 (Tex. App.—Austin 1985,
writ ref’d n.r.e.).
15
 The Local Government Code authorizes a commissioners court to adopt an

annual county budget. See TEX. LOCAL GOV’T CODE §§ 111.001–.096. When

adopting a budget, a commissioners court “shall set the compensation, office and

travel expenses, and all other allowances for county and precinct officers and

employees who are paid wholly from county funds.” Id. § 152.011; see generally

id. §§ 152.011–.907 (Amount of Compensation, Expenses, and Allowances of

County Officers and Employees). “After final approval of the budget, a

commissioners court may spend county funds only in strict compliance with the

budget, except in an emergency.” Id. § 111.010. However, a commissioners court

is nevertheless authorized to make “changes in the budget for county purposes.”4

Id. § 111.011.

4
Section 111.011 has been cited only once. See Bexar Cty. v. Hatley, 150 S.W.2d
980 (Tex. 1941). In Hatley, the commissioners court adopted a budget with sums
for voting by hand marked and counted ballots. Id. at 981. The commissioners
court later amended its budget to allow the rental of voting machines with an
option to purchase. Id. at 982–84. A group of taxpayers sued to for an injunction to
restrain compliance with the rental contract. Id. at 984. The trial court denied the
injunction and the court of appeals reversed. Id. at 985.

On appeal, the Texas Supreme Court took up the question of whether the
commissioners court proceeded lawfully in amending its original budget. Id. at
987. Statutes in effect at the time mirrored those in effect now and provided that
once the budget has been adopted by a commissioners court, expenditures were to
be made “in strict compliance with the budget as adopted” except in the case of
emergency expenditures. Id. at 986. Likewise, the statute provided that nothing
within it prevented a commissioners court from “making changes in the budget for
county purposes.” Id.

16
 In this case, Hobbs argues that the employee policies enacted by the

Commissioners Court effectively amended the budget in the absence of an

emergency and in contravention of the regular budget adoption and amendment

process. He relies on a letter opinion from the attorney general, which asked

whether a county official has the authority to close his office on account of bad

weather or other extenuating circumstances, and if so, whether the county treasurer

or auditor could withhold payment of employees salary due to the closure of the

office. Tex. Att’y Gen. Op. No. JC-0131 (1999). In that letter opinion, the attorney

general concluded that the authority of a commissioners court to set county

compensation did not include the authority to set the office hours for other county

officials and their employees. Id. However, the attorney general also concluded

that “once the salaries of county officers and employees are set, the salaries may

not be reduced, outside of the regular budget adoption and amendment process, to

account for office closures.” Id.

Unlike the question posed in the attorney general’s letter opinion, the

challenged policies here did not reduce the salaries of county officers and

The Supreme Court held that the commissioners court did not act unlawfully by
amending its budget because the statutes provided “some latitude” to make the
budget plan workable, the subject matter of the amendment (elections) was “an
absolute public necessity,” and the amendment did not require the expenditure of
funds not already budgeted for elections. Id. at 987. Thus, the Supreme Court
reversed the court of appeals and affirmed the trial court’s denial of a temporary
injunction. Id. at 989.
17
employees in response to the county attorney’s exercise of discretion in the

management of his office’s functions. Moreover, the challenged policies did not

actually amend the budget. Because the policy permits exceptions to the salary cap

with approval by the Commissioners Court, the challenged policy does not

necessarily reduce any employee salary as compared to the amount adopted in the

budget.

We conclude that the pleading does not allege a violation of the statutory

budgeting process sufficient to invoke the district court’s supervisory jurisdiction.

See Comm’rs Ct., 690 S.W.2d at 934.

Conclusion

Having concluded that Hobbs lacks standing, that the pleading does not

allege a justiciable injury, and that the facts alleged in the live pleading do not

invoke the trial court’s supervisory jurisdiction, we affirm the judgment of the trial

court.

Peter Kelly
Justice

Panel consists of Justices Kelly, Goodman, and Countiss.

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