dissenting.
Today, the majority holds that a plaintiff with a final judgment against a city cannot *181collect it, unless he first proves, as a matter of law, that the city’s refusal to pay is arbitrary. Thus, the plaintiff must win two lawsuits in order to collect one judgment.
The majority states that the question for decision is whether a final judgment is unenforceable “because a city official has discretion to refuse payment of the judgment.” What city official has such discretion? What is the source of that discretion? According to the City, it is its charter, which requires its controller not to pay until he has audited the claim and found it to be just, legally due, and payable. The City concedes that a trial was conducted to determine these issues, and it lost.
It is not a judgment debtor’s role to decide if its debt is just, legally due, and payable. That is a judge’s job, one the district judge performed here. If the job duties of a district judge conflict, in this context, with those of a city controller, the controller must lose. To hold otherwise is inconsistent with my idea of an independent judiciary. A district judge is not a municipal employee. He or she should not have to satisfy the City’s charter, or its controller, before ordering the City to pay a final judgment.
Greanias gave two reasons in the trial court for not paying Hill’s claim. The first was that the City’s attorney told him the City would probably win the bill of review lawsuit. Every city that files a bill of review will be able to say that. Greanias’ second reason (which, like the first, will be routinely heard) was that it would be hard to recover the money from Hill, assuming the City ultimately prevails. Certainly, any litigant will fight to keep $600,000 — witness the City’s efforts. If the point is that Hill will waste all the money before the City can prevail and reclaim it, the City did not prove that in the trial court.
Nor do I think that this case is governed by Smith v. McCoy, 533 S.W.2d 457 (Tex.Civ.App.-Dallas 1976, writ dism’d). As set out below, that decision was made in order to preserve a delicate system of checks and balances among executive officers of the county government. Most important, there was no final judgment against the county in Smith v. McCoy that established the validity of the claim.
In Smith v. McCoy, the auditor refused to pay back wages to formerly suspended deputy sheriffs, despite a request from the county sheriff and an order from the county commissioners court. The reinstated deputies then obtained a writ of mandamus from the district judge, even though no judgment had determined the validity of the claim. The Smith opinion reveals the many important differences between that case and this one. For example, the court wrote:
[T]he approval of the auditor is a condition precedent to the exercise of the commissioners court’s authority to order payment of claims ... Since the auditor had not approved appellees claim, the ... commissioners courts order directing payment was void.
533 S.W.2d at 459. The City has not contended that the judgment here is void.
The Smith court wrote:
A determination of whether the deputies are entitled to pay for the time suspended presents a difficult legal question for the auditor. Consequently, the auditor was acting within his official discretion to deny the claims and to require that their validity be established in a court of law.
533 S.W.2d at 459. No difficult legal question was presented to Greanias here because the validity of Hill’s claim had been established in a court of law.
The Smith court further wrote:
Under the constitution and legislative enactments, a delicate system of checks and balances exists to protect the funds of the county ... To hold ... that the duty of the auditor under the statutes is ministerial rather than discretionary would remove one of the safeguards in this system of checks and balances and would permit a commissioners court to disburse county funds without restraint.
533 S.W.2d at 459. Granting the mandamus here did not authorize any executive branch officer to disburse public funds *182without restraint. It only required payment of funds found due in a final judgment. Setting aside the writ of mandamus here, however, would affect a delicate system of checks and balances by allowing city controllers to interfere with the final judgments of an independent judiciary.
The controller in Smith v. McCoy relied, as his basis for refusing to pay, on an attorney general’s opinion. The court wrote:
If the [Attorney General’s] opinion in question supported the auditor’s refusal to approve payments of compensation to the suspended deputies, then the auditor would have been justified in refusing to authorize payment and in requiring ap-pellees to establish their claim in a suit against the county.
533 S.W.2d at 460. Hill established his claim in a suit against the City. The Smith court did not say the auditor could refuse to pay after a final judgment had been rendered against the city.
The court further stated:
Evidence that appellees were suspended from their jobs and subsequently reinstated does not establish as a matter of law that they were entitled to compensation for the period of their suspension. Mandamus lies to compel execution rather than to adjudicate claims.
533 S.W.2d at 460. Here, Hill used mandamus to compel execution, not to adjudicate his claim.
Finally, the Smith court gave McCoy some free legal advice. It wrote:
[T]he remedy here is a suit against the county to establish the validity of appel-lees’ claim, rather than an order of mandamus.
533 S.W.2d at 461. That is the remedy that Hill successfully pursued.
It is important to remember that the question before us is not whether the City will get to appeal the judgment. That will be decided in the bill of review suit still pending in the district court. Needless to say, the City should not lose its valuable right to appeal just because it did not get notice of the judgment. If it proves its allegations, the City will get to appeal. Petro-Chemical Transp., Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974). The only question before us is, who will hold the money in the meantime. Given the existence of a presumptively valid final judgment in favor of Mr. Hill and the City’s weak showing in the trial court, I am not convinced that the only legal alternative was to let the City do so. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917-18 (Tex.1985).
Although the majority emphasizes that the mere filing of a bill of review by a city will not hereafter automatically prevent collection of a judgment, I fear that will be the result of its decision. Therefore, I respectfully dissent.