Faye Comte and Laura Severt v. Smith County Commissioners Court and Joel P. Baker, Cary Nix, Jeff Warr, Joann Hampton, and Terry Phillips, Each in His or Her Official Capacity as a Smith County Commissioner

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-14-00086-CV

FAYE COMTE AND LAURA SEVERT, Appellants

V.

SMITH COUNTY COMMISSIONERS’ COURT AND JOEL P. BAKER, CARY NIX, JEFF
WARR, JOANN HAMPTON, AND TERRY PHILLIPS, EACH IN HIS OR HER OFFICIAL
CAPACITY AS A SMITH COUNTY COMMISSIONER, Appellees

On Appeal from the 241st District Court
Smith County, Texas
Trial Court No. 13-2492-C

Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
Concurring Opinion by Justice Burgess
 MEMORANDUM OPINION
In this appeal out of Smith County,1 we are faced with a clash of principles. On one hand,

we have the broad authority and discretion of county commissioners over county funds and

budgets. On the other, we have (1) the Constitutional obligation of courts handling certain cases

involving protection of children to arrange legal representation for indigent parties at county

expense and (2) the authority, subject to statutory exceptions, of district courts to exercise “general

supervisory control” over county commissioners.

Faye Comte and Laura Severt (the Attorneys), two court-appointed, family law attorneys,

seek payment for those legal services they provided in the 321st Judicial District Court. The

Attorneys’ quest in this Court takes the form of an appeal from the 241st Judicial District Court’s

refusal to issue a writ of mandamus directing the Smith County Commissioners Court to approve

and pay the fees.

To reverse a trial court’s refusal to issue a writ of mandamus, we must find that the trial

court denying the writ abused its discretion. Alice Nat’l Bank v. Edwards, 408 S.W.2d 307, 311

(Tex. Civ. App.—Corpus Christi 1966, no writ). Because we find no abuse of discretion, we affirm

the trial court’s denial of the requested writ.

It appears that Smith County, like others, has experienced a dramatic increase in the money

spent on providing court-appointed family-law attorneys, particularly in the 321st Judicial District

1
This appeal was originally filed in the Twelfth Court of Appeals in Tyler. Pursuant to Section 73.001 of the Texas
Government Code, the Supreme Court of Texas transferred the case to this Court. TEX. GOV’T CODE ANN. § 73.001
(West 2013). Because this is a transfer case, we apply the precedent of the Twelfth Court of Appeals to the extent it
differs from our own. See TEX. R. APP. P. 41.3.

2
Court. On June 18, 2013, the Smith County Commissioners Court entered an order2 stating that it

would refuse to approve any additional funding for non-contract, court-appointed attorney fees in

civil matters arising out of that court for the 2013 fiscal year. It is alleged that, after the order was

in place, the commissioners court refused to remit payment to non-contract, court-appointed,

family law attorneys Comte, Severt, Jarrod Heath, Jeff Sanders, and Jennifer Deen. Displeased

with the commissioners court’s order and refusal to remit payment for their services, Comte,

Heath,3 Sanders, Deen, and Severt filed a petition for writ of mandamus in the trial court asking

that it (1) vacate the order issued by the commissioners court prohibiting payment of their fees and

(2) direct the commissioners court to remit payment for their services. After a hearing, the trial

court denied the petition. Of the above group, only the two remaining Attorneys bring this appeal

of the denial of their petition.

Mandamus relief is an extraordinary remedy. In re S.W. Bell Tel. Co., L.P., 235 S.W.3d

619, 623 (Tex. 2007) (orig. proceeding). A writ of mandamus will issue to compel a public official

to perform a ministerial act. Anderson v. Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). “An

act is ministerial when the law clearly describes the duty to be performed by the official with

sufficient certainty that nothing is left to the exercise of discretion.” Id. This general rule is not

without exception. Mandamus relief with respect to matters of a discretionary nature may issue in

2
The Attorneys refer to the document as a letter. It is entitled “Order of Commissioners’ court of Smith County,
Texas[,] Setting Policy for Enforcement of Fiscal Year 2013 Budget Category Pertaining to Non-contract Attorneys
for Civil Family Cases in the 321st Judicial District court.” We will refer to it as an order.
3
Heath filed a motion for partial nonsuit, and on April 17, 2014, the trial court dismissed his claims without prejudice.
3
certain circumstances, but only on a showing by the relator that a public official clearly abused his

or her discretion. Womack v. Berry, 291 S.W.2d 677, 682 (Tex. 1956) (orig. proceeding).

Trial courts retain original mandamus jurisdiction over county officials. TEX. CONST.

art. 5, § 8; Vondy v. Comm’rs Court of Uvalde Cnty., 620 S.W.2d 104, 109 (Tex. 1981). An

original proceeding for a writ of mandamus initiated in a trial court is a civil action subject to trial

and appeal on substantive legal issues and rules of procedure like any other civil

suit. Anderson, 806 S.W.2d at 792 n.1. In a mandamus proceeding, the burden is on the party

seeking the relief to negate, by affirmative allegation and proof, every fact or condition which

would have authorized the public official to refuse to take the action sought to be required of him

or her. Smith v. McCoy, 533 S.W.2d 457, 460 (Tex. Civ. App.—Dallas 1976, writ dism’d) (citing

King v. Guerra, 1 S.W.2d 373 (Tex. Civ. App.—San Antonio 1927, writ dism’d w.o.j.).

A trial court may countermand an order of a commissioners court only if the commissioners

court’s actions were an abuse of discretion. Ector County v. Stringer, 843 S.W.2d 477, 479 (Tex.

1992). The supervisory jurisdiction of the trial court may be invoked in a direct attack when it is

shown that the order of the commissioners court is voidable as being arbitrary, capricious, or

unsupported by substantial evidence or that the court acted beyond its jurisdiction. Live Oak Cnty.

v. Lower Nueces River Water Supply Dist., 446 S.W.2d 14, 27 (Tex. Civ. App.—Beaumont 1969,

writ ref’d n.r.e.). “On appeal, an appellate court will not reverse a refusal of the trial court to grant

a writ of mandamus unless it is made to appear that the trial court abused his discretion in denying

the writ, and the burden is on the appellant to show such an abuse.” Edwards, 408 S.W.2d at 311.

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 The Attorneys had the burden to demonstrate to the trial court that mandamus relief was

appropriate by showing (1) that they had no adequate remedy at law and (2) that the commissioners

court acted arbitrarily or abused its discretion by issuing its June 18 order and by refusing to submit

payment to the Attorneys for their services. See Smith, 533 S.W.2d at 460.

In seeking mandamus relief from the trial court, the Attorneys attached to their petition

what they refer to as “exhibits.”4 “Exhibit A” is the commissioners court’s June 18 order, which

states, in part:

Specifically, the commissioners’ court of Smith County finds that spending has
increased in an unwarranted and extravagant manner in the 321st Judicial District
Court with regard to appointments made in civil family law cases, and necessary
steps are needed to comply with the budgetary policy set forth in Texas Local
Government Code, § 111.070(a), which mandates “strict compliance” with the
budget. Such a finding has been made only after a tremendous amount of additional
funds having been transferred to accommodate the needs of the 32lst Judicial
District Court; however, these extraordinary budget transfers cannot continue in an
unlimited manner.

The order goes on to recite the following policies:

(1) Smith County shall not fund unwarranted and extravagant costs for non-
contract attorney fees in civil family matters arising from the 321st Judicial District
Court for fiscal year 2013 and shall only approve reasonable bills related to this
budget category in line with available funds through the date of July 18, 2013 (30
days from the entry of this order);

4
Although it appears from the hearing transcript that the documents attached to the Attorneys’ petition were never
formally admitted into evidence, the record reflects that the trial court and the parties treated the documents as if they
were evidence and that neither of the parties indicated anything to the contrary by lodging an objection. Appellate
courts have repeatedly held that evidence that is not objected to and that the trial court and the parties treat as admitted
is, for all practical purposes, admitted. See Tex. Health Enters., Inc. v. Tex. Dep’t of Human Serv., 949 S.W.2d 313,
314 (Tex. 1997); Tex. Dep’t of Pub. Safety v. Latimer, 939 S.W.2d 240, 243 (Tex. App.—Austin 1997, no writ);
Pickering v. First Greenville Nat’l Bank, 479 S.W.2d 76, 78 (Tex. Civ. App.—Dallas 1972, no writ); Guetersloh v.
C.I.T. Corp., 451 S.W.2d 759, 760 (Tex. Civ. App.—Amarillo 1970, writ ref’d n.r.e.); McGary v. First Bancredit
Corp., 273 S.W.2d 905, 907 (Tex. Civ. App.—Texarkana 1954, writ ref’d n.r.e.). Therefore, we will treat the
documents referred to in the hearing before the trial court as if they were admitted into evidence.
5
 (2) After July 18, 2013, the Smith County commissioners’ court will generally
not approve any additional funding for non-contract attorneys in civil matters
arising from the 321st Judicial District Court for fiscal year 2013; and

(3) The 321st Judicial District Court is advised to take reasonable steps to
transfer caseloads from non-contract attorneys to one of the nine (9) contract
attorneys assigned to the Court.

(Footnote omitted).

“Exhibit B” to the Attorneys’ petition is a chart entitled “Orders Appointing Non-Contract

Attorneys.” There is no evidence as to who prepared the chart or for what reason it was prepared.

“Exhibit C” contains copies of two letters from the Smith County Auditor addressed to the Smith

County Commissioners Court. One of the letters is dated August 26, 2013, and the other is dated

September 10, 2013. The county auditor writes,

Attached is a compilation of the non-contract attorney invoices received
from the 321st District Court for services rendered, yet unpaid, due to lack of
budgetary funding. These invoices were incurred as authorized in the Family Code,
Chapter 107.015(c)(d) and have been examined and approved for payment by the
County Auditor pursuant to LGC, Chapter 113.064 and 113.065.

Sufficient funding is not in place to pay these invoices; therefore, they are
presented to the Commissioners’ court in tabulated form for due consideration of
payment and the necessary transfer of funds, if so approved.

The auditor’s August 26 letter included an attachment with the heading “321st District

Court, Outstanding Attorney Fees, 8/27/2013.” It is a multi-columned table with information

regarding hourly billing related to various cases. There is neither an indication who prepared the

document or a description of what work was allegedly performed. The September 10 letter also

included an attachment entitled “321st District Court, Unpaid Non-Contract Attorney Bills,

Presented to Commissioners’ court 09/10/13,” which looks much like the attachment to the

6
August 27 letter from the auditor. It does not reflect who prepared the document or what work

was actually performed.

On August 25, 2014, the trial court entered a “final judgment” denying the Attorneys’

petition for writ of mandamus.5 In support of their position that the trial court erred in denying

mandamus relief, the Attorneys contend that the 321st Judicial District Court had the inherent

power to make non-contract attorney ad litem appointments when the need arose.6 They also

maintain that the district court had the statutory power to make ad litem appointments.

In a suit filed by a governmental entity requesting termination of the parent-child
relationship or to be named conservator of a child, the court shall appoint an
attorney ad litem to represent the interests of the child immediately after the filing,
but before the full adversary hearing, to ensure adequate representation of the child.
5
The parties did not request findings of fact and conclusions of law, and the trial court did not choose to enter them on
its own volition. Therefore, we must consider that the trial court’s judgment implied all findings of fact necessary to
support its denial of the Attorneys’ petition for writ of mandamus. See Pharo v. Chambers Cnty., 922 S.W.2d 945,
948 (Tex. 1996).
6
We agree with the Attorneys that the inner workings of a district court, particularly issues relating to the management
of its chief functions, are practically inviolable. Courts refer to these workings and decisions as a court’s inherent
power, which is to be protected. Vondy, 620 S.W.2d at 109. In Mays v. Fifth Court of Appeals, Justice Spears
concurred with the majority. In doing so, he maintained that even in the absence of a statutory provision, a court has
the inherent power to compel the expenditure of public funds that are reasonably necessary for it to adequately and
efficiently function. Mays v. Fifth Court of Appeals, 755 S.W.2d 78, 82 (Tex. 1988) (Spears, J., concurring).

The process of allocating public resources is complex. Both state and local legislative bodies make
difficult decisions when faced with competing priorities. Political and economic considerations
often result in the relatively unassertive requests of the judiciary being neglected. However, unlike
state agencies, courts cannot reduce services. The judiciary can only delay or postpone the
disposition of justice. Legislative leaders must realize that courts have been neglected for too long
and must now receive greater financial support. In this day and time, with ever increasing dockets,
modern word-processing equipment, computers, and skilled personnel to assist with the workload
may often be as critical as heating stoves. The judiciary can no longer permit its efficiency and
progress to be stymied by legislators who apparently misunderstand the constitutional role and
function of the judiciary as a separate, independent and equal branch of government. Ultimately,
the legislative branch of government cannot be permitted to cripple the judicial branch by refusing
needed appropriations. The “power of the purse” is a legislative power but it is not an absolute
power; it may not be used to divest the court of its ability to function independently and effectively.

Id.

7
TEX. FAM. CODE ANN. § 107.012 (West 2014). Because this statute contains the word “shall,” the

Attorneys argue that the Legislature did not intend to afford the commissioners court any discretion

when it came to paying fees for their ad litem services. See Entergy Gulf States, Inc. v. Summers,

282 S.W.3d 433, 437 (Tex. 2009). Thus, the Attorneys reason that the commissioners court’s duty

to pay them for their services was simply a ministerial act, not a discretionary one. The Attorneys

also maintain that the trial court had the authority to grant the mandamus relief they were

requesting and to compel the commissioners court to perform its ministerial duty of paying them

for the services they rendered in the 321st Judicial District Court.7

In response, the commissioners’ court contends that it has general legislative authority in

Smith County. See TEX. CONST. art. V, § 18. The commissioners court maintains that, as part of

its legislative authority, it has broad discretion to create the county’s budget, set fiscal priorities,

and execute these responsibilities for the good of the entire county. See Hooten v. Enriquez, 863

S.W.2d 522, 528 (Tex. App.—El Paso 1993, no writ); Comm’rs Court of Caldwell Cnty., 690

S.W.2d 932, 934 (Tex. App.—Austin 1985, writ ref’d n.r.e.). As such, the commissioners court

believes that the adoption and, therefore, the administration of the budget is discretionary and is

protected from scrutiny by the trial court via the separation of powers doctrine. See TEX. CONST.

7
The Texas Constitution vests in a district court (which we refer to in this case as the trial court), “appellate jurisdiction
and general supervisory control over the county commissioner’s court, with such exceptions and under such regulation
as may be prescribed by law.” TEX. CONST. art. V, § 8. The statute empowering the trial court to exercise such control
merely echoes the constitution. See TEX. GOV’T CODE ANN. § 24.020 (West 2004). The trial court has general
supervisory control over the commissioners court and original mandamus jurisdiction to compel the county
commissioners to carry out their constitutional duties. See Ector County, 843 S.W.2d at 479.

8
art. 2, § 1.8 Based on this line of reasoning, the commissioners court maintains that its refusal to

pay the attorneys was well within its discretionary power and that mandamus relief was not

appropriate in this case.

While the Attorneys repeatedly point to the district court’s inherent powers, the district

court is not a party to this litigation. The Attorneys bore the burden of proof during the proceedings

below, and they bear the burden of proof at this juncture, to ensure that a sufficient record is

presented to show error requiring reversal.

The commissioners court’s June 18 order, which was issued just three and one-half months

before the end of the fiscal year, stated that it was attempting to strictly comply with the budgetary

guidelines that it had previously approved for the 2013 fiscal year. The order also explained that

it had attempted to accommodate the district court with its budgetary issues and that it would refuse

to approve bills related to non-contract attorney appointments after July 18, 2013. Contrary to the

Attorneys’ position, the commissioners court did not “order” the district court to refrain from

appointing attorneys when the need arose; it only “advised” the district court to “take reasonable

steps to transfer caseloads from the non-contract attorneys to one of the nine (9) contract attorneys

assigned to the Court.” There is nothing in the record showing that the District Court chose to

8
Article 2, Section 1 of the Texas Constitution reads as follows:

The powers of the Government of the State of Texas shall be divided into three distinct departments,
each of which shall be confided to a separate body of magistracy, to wit: Those which are
Legislative to one; those which are Executive to another, and those which are Judicial to another;
and no person, or collection of persons, being of one of these departments, shall exercise any power
properly attached to either of the others, except in the instances herein expressly permitted.

TEX. CONST. art. 2, § 1.

9
appoint any of the non-contract attorneys after the issuance of the commissioners court’s June 18

order. The last non-contract attorney appointment made by the district court appears to have been

made on May 23, 2013. Without making such a finding, it is possible to surmise that the district

court was attempting to work with the commissioners court in relation to the financial issues Smith

County might have been facing.

The record does show, however, that, following the issuance of the commissioners court’s

June 18 order, the Attorneys themselves chose to continue providing services in selected cases due

to what they considered ethical obligations. The Attorneys maintain that, because their minor

clients could not give them consent to withdraw, they were, therefore, ethically obligated to

continue their representation despite being aware of the commissioners court’s order. We would

note that, on the same basis, the Attorneys’ clients were likewise unable to retain them initially.

Based on the evidence presented in this case, the Attorneys failed to show that the commissioners

court’s actions infringed on the district court’s inherent power to adequately function.

The Attorneys also maintain that, because the district court reviewed their billing invoices

and the county auditor approved their billing, there was nothing left to be done except for the

commissioners court’s ministerial task of remitting payment to them, which the court refused to

do. The Attorneys argue,

Once legal services were rendered, [the Attorneys] submitted invoices to the Smith
County Auditor. The Auditor then “examined and approved” the invoices and sent
them by letter to Joel Baker and the County commissioners “for payment.” The
County commissioners refused to tender payment, which left [the Attorneys] with
no choice but to seek mandamus relief.

10
 As the Attorneys point out, the county auditor stated in her letters that she had received the

Attorneys’ invoices from the district court and that she had “examined and approved” them for

payment pursuant to the relevant statutes; however, it also clear from her correspondence that

“sufficient funding [was] not in place to pay [the] invoices.” Moreover, the auditor’s letter stated

that she had attached a compilation of attorney fees received by the district court, but we find no

evidence or testimony as to who created the “compilation” of fees or from where the information

originated. These documents are inadequate to show that the Attorneys fully complied with the

statute requiring them to submit to the district court a voucher or claim for payment,9 and they are

likewise inadequate to show that the only step left to be taken was the ministerial task by the

commissioners’ court of paying them. Moreover, the county auditor’s letters stating that she had

received and approved the Attorneys’ billing (but that there was no funding available) were not

sufficient to demonstrate that the only step left in the process was for the commissioners court to

remit payment to the Attorneys.10

9
Section 107.015(d) of the Texas Family Code states,

A person appointed as a guardian ad litem or attorney ad litem shall complete and submit to the
court a voucher or claim for payment that lists the fees charged and the hours worked by the guardian
ad litem or attorney ad litem. Information submitted under this section is subject to disclosure under
Chapter 552, Government Code.

TEX. FAM. CODE ANN. § 107.015(d) (West 2014).
10
The commissioners court maintains that the Attorneys never indicated to them before filing their mandamus petition
that they believed the commissioners court’s order was void or that the commissioners court was statutorily required
to pay their fees. The Texas Local Government Code states,

(a) Except as provided by Subsection (c), a person may not file suit on a claim against a county
or an elected or appointed county official in the official’s capacity as an appointed or elected official
unless the person has presented the claim to the commissioners’ court and the commissioners’ court
neglects or refuses to pay all or part of the claim before the 60th day after the date of the presentation
of the claim.
11
 The Attorneys’ request for mandamus relief is an extraordinary remedy. See S.W. Bell Tel.

Co., L.P., 235 S.W.3d at 623. At the hearing before the trial court, the Attorneys were required to

show both the absence of an adequate remedy at law and that the commissioners court abused its

discretion. See In re Entergy Corp., 142 S.W.3d 316, 320 (Tex. 2004). In order for the Attorneys

to succeed in this case, they must have presented sufficient evidence showing that the

commissioners court’s June 18 order was voidable or that the commissioners court’s act of paying

their fees was simply a ministerial duty clearly mandated by law that left nothing to the exercise

of discretion. See Anderson, 806 S.W.2d at 793. The trial court found that the Attorneys failed to

meet their burden. We must consider that the trial court’s judgment implied all findings of fact

necessary to support its ruling. See Pharo, 922 S.W.2d at 948. Based on the evidence presented,

(b) If the plaintiff in a suit against a county does not recover more than the commissioners’
court offered to pay on presentation of the claim, the plaintiff shall pay the costs of the suit.

(c) A person may file a suit for injunctive relief against a county. After the court’s ruling on
the application for temporary injunctive relief, any portion of the suit that seeks monetary damages
shall be abated until the claim is presented to the commissioners’ court and the commissioners’
court neglects or refuses to pay all or part of the claim by the 60th day after the date of the
presentation of the claim.

TEX. LOCAL GOV’T CODE ANN. § 89.004 (West 2008).

The record has no evidence showing that the Attorneys complied with this provision or that they attempted
to comply with it. This statutory provision would have required the Attorneys to present their claims to the
commissioners court as a condition precedent to filing their petition; however, such is not mandatory in a number of
circumstances. Cnty. of Bexar v. Garcia, 974 S.W.2d 107, 109 (Tex. App.—San Antonio 1998, no pet.). For instance,
compliance with the statute would not have been required if the statute’s purpose was to give the commissioners court
notice and the opportunity to investigate and settle any alleged claims and that purpose had been met in some other
fashion. Id. In this case, there is no evidence of the notice requirement being otherwise met. Having noted the
statute’s directive and for the reasons we have previously stated herein, it is unnecessary for this Court to address the
Attorneys’ potential failure to comply with the statute or any of the myriad of reasons they might have been excused
from complying with it.

12
we cannot find that the trial court abused its discretion in denying the Attorneys’ petition for writ

of mandamus.

We affirm the trial court’s judgment.

Josh R. Morriss, III
Chief Justice

CONCURRING OPINION

I concur with the opinion. I write separately to emphasize the limited scope of our opinion.

As noted in our opinion, when the trial court issued orders for payment of attorney fees

pursuant to statutory authority, the commissioners court did not seek mandamus or appellate

review of the district court’s fee orders in the court of appeals. Instead, it responded by issuing its

own competing order essentially refusing to comply with any future attorney fee payment orders

after a certain date and “advising” the trial court that it should only use contract attorneys for such

services in the future.11 Because the trial court below issued a general order denying the Attorneys’

request for a writ of mandamus and did not enter findings of fact and conclusions of law, and

because the appellant failed to establish that the trial court abused its discretion in denying their

petition, we defer to the trial court’s decision denying relief and affirm its decision. Therefore, the

commissioners courts refusal to pay as ordered stands.

11
Although the appellants did not meet their burden of proof, these procedural facts were not proven, but they were
alleged by the appellants and not disputed by the appellees.
13
 Nevertheless, the trial court did not find and we likewise do not find that the commissioners

court’s refusal to comply with the trial court’s fee order was proper, and nothing in our opinion

should be interpreted as holding that a commissioners court has discretion to refuse to comply with

a trial court’s order. We simply hold that the appellants failed to establish that the trial court

abused its discretion in denying their petition, and nothing more.

Ralph K. Burgess
Justice

Date Submitted: July 29, 2015
Date Decided: October 28, 2015

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