Waller County, Texas v. Terry Holcomb

Opinion issued November 17, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-20-00163-CV
———————————
WALLER COUNTY, TEXAS, Appellant
V.
TERRY HOLCOMB, Appellee

On Appeal from the 506th District Court
Waller County, Texas
Trial Court Case No. 16-07-23803

MEMORANDUM OPINION

This appeal arises from the trial court’s award of attorney’s fees and sanctions

to appellee Terry Holcomb on his successful motion to dismiss Waller County’s suit
under the Texas Citizens Participation Act (“TCPA”)1 per the judgment of this

Court. The underlying suit arose when Waller County sued Holcomb for challenging

the County’s posting of signs barring holders of concealed-handgun licenses from

entering the Waller County Courthouse while armed in violation of Section 411.209

of the Government Code. Section 411.209 forbids a political subdivision from

posting notices barring entry to armed concealed-handgun permit holders unless

entry is prohibited by statute. The district court agreed with the County, granted its

request for declaratory relief, and denied Holcomb’s plea to the jurisdiction and

motion to dismiss the County’s suit under the TCPA.

On appeal, this Court reversed the trial court’s judgment. See Holcomb v.

Waller Cnty., 546 S.W.3d 833, 835 (Tex. App.—Houston [1st Dist.] 2018, pet.

denied) (“Holcomb I”). Waller County did not file a motion for rehearing or en banc

reconsideration of our judgment. Instead, Waller County petitioned the Texas

Supreme Court to review our judgment. The Texas Supreme Court denied Waller

County’s petition and our plenary power expired. We issued our mandate and

remanded the case to the district court with instructions to dismiss Waller County’s

suit for lack of subject-matter jurisdiction after holding further proceedings only to

award Holcomb his court costs, reasonable attorney’s fees, other expenses incurred

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See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011. The underlying suit involved
the pre-September 1, 2019 version of the TCPA.
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in defending against the action, and any other relief available under the TCPA. Id.

at 840. On remand, the trial judge recused himself and a visiting judge rendered

judgment for Holcomb in the amount of $71,537.50 in attorney’s fees and $25,000

in sanctions and dismissed the case with prejudice.

This second appeal arises from those further proceedings. In four issues,

Waller County challenges the trial court’s judgment by asserting that (1) the trial

court lacked jurisdiction on remand because Holcomb did not timely file his notice

of appeal, rendering this court’s opinion, judgment, and mandate void; (2) the TCPA

did not apply to the declaratory-judgment suit; (3) this Court lacked authority to

award attorney’s fees and costs to Holcomb because the TCPA only allows for such

awards for cases dismissed on the merits, and not cases dismissed as a result of a

lack of jurisdiction; and (4) Waller County is immune from liability.

Trial Court’s Authority to Comply with Mandate

In its first issue, Waller County contends that the trial court lacked jurisdiction

to enter a judgment for attorney’s fees and sanctions because our judgment, opinion,

and mandate in Holcomb I were void due to Holcomb’s untimely filing of his notice

of appeal. In its second issue, Waller County disputes our interpretation of the TCPA

and argues that a declaratory-judgment action is not a “legal action” under Chapter

27. In its third issue, Waller County complains that attorney’s fees and sanctions

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may be awarded under the TCPA when a case has been dismissed on the merits but

not for a dismissal based on lack of jurisdiction.

Although Waller County frames its appellate issue as a challenge to the trial

court’s order after remand, in reality it is a collateral attack on this Court’s judgment

in Holcomb I. “[T]he question before the Court is whether there remains a live

controversy such that this appeal should continue.” Matter of Estate of Abraham,

No. 08-19-00231-CV, 2020 WL 4034985, at *2 (Tex. App.—El Paso July 17, 2020,

no pet.) (mem. op.). We hold that no live controversy exists because our plenary

power over our judgment in the Holcomb I appeal expired before Waller County

filed this appeal. See TEX. R. APP. 19.1(a) (plenary power over judgment expires “60

days after judgment if no timely filed motion for rehearing or en banc

reconsideration, or timely filed motion to extend time to file such a motion, is then

pending”); TEX. GOV’T CODE § 22.225(a) (“A judgment of a court of appeals is

conclusive on the facts of the case in all civil cases.”).

When the Texas Supreme Court denied Waller’s County’s petition for

discretionary review in August 2018, we in turn issued our mandate within the time

prescribed in the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 18.1(a)(2)

(requiring issuance of appellate court’s mandate 10 days after Texas Supreme Court

refuses or dismisses petition for discretionary review); TEX. R. APP. P. 19.3(b)

(listing issuing mandate as one limited action appellate court may take after

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expiration of plenary power). Accordingly, we lack jurisdiction to evaluate the

merits of Waller County’s first, second, and third issues because our judgment was

final by the time Waller County filed this second appeal. Wise Elec. Coop., Inc. v.

Am. Hat Co., 476 S.W.3d 671, 679 (Tex. App.—Fort Worth 2015, no pet.)

(concluding trial court lacked jurisdiction over claims attacking prior judgment of

appellate court after Texas Supreme Court had denied petition for review, appellate

court had issued mandate, and case had been remanded to trial court and retried);

Abraham, 2020 WL 4034985, at *2 (noting appellate court’s final judgment where

Texas Supreme Court denied petitions for discretionary review in two separate

appeals).

Because Waller County did not raise its first, second, or third issues before

this Court’s mandate issued, the only remaining issue is whether the trial court

complied with this Court’s mandate in Holcomb I.

A. Standard of review

The mandate is the “official notice” from the appellate court to the court

below. Min v. H & S Crane Sales, Inc., 472 S.W.3d 773, 778 (Tex. App.—Houston

[14th Dist.] 2015, pet. denied). The mandate advises the trial court of the appellate

court’s action and directs the trial court to have the appellate court’s judgment

recognized, obeyed, and executed. See Saudi v. Brieven, 176 S.W.3d 108, 116 (Tex.

App.—Houston [1st Dist.] 2004, pet. denied).On remand, the trial court “has no

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authority to take any action that is inconsistent with or beyond the scope of that

which is necessary to give full effect to the appellate court’s judgment and mandate.”

Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013); see TEX. R. APP. P. 51.1(b).

On remand, a trial court has a ministerial duty to observe and carry out the

appellate court’s mandate. Harris Cnty. Children’s Protective Servs. v. Olvera, 971

S.W.2d 172, 175–76 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (op. on

reh’g) (citing Myers v. Myers, 515 S.W.2d 334, 335 (Tex. Civ. App.—Houston [1st

Dist.] 1974, writ dism’d)). Trial courts must do the best they can to follow the

directives in the mandate. Madeksho v. Abraham, Watkins, Nichols & Friend, 112

S.W.3d 679, 691 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (en banc). A

trial court abuses its discretion when it does not. Id. at 685. A trial court abuses its

discretion if “it acts without reference to guiding rules and principles such that the

ruling is arbitrary or unreasonable.” Brewer v. Lennox Hearth Prods., LLC, 601

S.W.3d 704, 717 (Tex. 2020).

B. Analysis

Our mandate in Holcomb I stated:

This case is an appeal from the final judgment signed by the trial court
on November 28, 2016. After submitting the case on the appellate
record and the arguments properly raised by the parties, the Court holds
that there was reversible error in the trial court’s judgment in the
following respects: the trial court erred in granting a declaratory
judgment in favor of Waller County and in denying Terry Holcomb,
Sr.’s motion to dismiss Waller County’s declaratory judgment action
pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code.

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 Accordingly, the Court reverses the trial court’s judgment and
remands the case to the trial court for further proceedings consistent
with our opinion.

Our opinion instructed the trial court to “dismiss the County's suit for lack of subject-

matter jurisdiction after holding further proceedings for the limited purpose of

awarding Holcomb his court costs, reasonable attorney’s fees, other expenses

incurred in defending against the action as are equitable and just, and any other relief

available under the [TCPA].” Holcomb I, 546 S.W.3d at 840. The trial conducted a

hearing and reviewed the evidence, the applicable law, and the pleadings in the

record. The trial court awarded over $70,000 in attorney’s fees to Holcomb, imposed

$25,000 in sanctions against Waller County, and dismissed the case with prejudice.

We conclude that the trial court carried out the ministerial duty of addressing

the request for attorney’s fees and sanctions because this issue was remanded to the

trial court when we reversed the trial court’s summary judgment against Holcomb.

See Holcomb I, 546 S.W.3d at 840. The trial court also carried out the ministerial

duty of dismissing the case under the TCPA. As a result, the trial court did not abuse

its discretion because it complied with our mandate and had jurisdiction over

Holcomb’s claim for attorney’s fees and sanctions. See Jay Petroleum, L.L.C. v.

EOG Res., Inc., 332 S.W.3d 534, 541 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied) (noting trial court did not abuse its discretion by complying with appellate

court’s mandate on remand); Madeksho, 112 S.W.3d at 691 (“[T]rial judges must do

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the best they can to interpret what we have said and follow it. By attempting to settle

the claims to attorneys’ fees here, the trial judge did nothing more than that.”).

Waller County’s final issue is that it cannot be liable to Holcomb for

attorney’s fees and sanctions under the TCPA because it is immune from liability.

“Immunity from liability . . . must be pleaded, or else it is waived.” Kinnear v. Tex.

Comm'n on Human Rights ex rel. Hale, 14 S.W.3d 299, 300 (Tex. 2000). After

carefully reviewing the record, we conclude that Waller County addressed sovereign

immunity in its responsive pleadings to Holcomb’s plea to the jurisdiction and TCPA

motion. But the Texas Supreme Court has previously acknowledged that sovereign

immunity does not shield a government entity from claims for attorney’s fees under

the TCPA. See State ex rel. Best v. Harper, 562 S.W.3d 1, 19 (Tex. 2018). Sovereign

immunity does not preclude Waller County’s liability for Holcomb’s attorney’s fees

and sanctions. We overrule the County’s appellate issues.

Conclusion

We affirm the trial court’s judgment.

Sarah Beth Landau
Justice

Panel consists of Justices Keyes, Lloyd, and Landau.

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