Duncan v. Pogue , 32 Tex. Sup. Ct. J. 7 ( 1988 )

759 S.W.2d 435 (1988)

Darlene DUNCAN, Petitioner,
v.
Joe POGUE, County Judge, et al., Respondents.

No. C-7838.

Supreme Court of Texas.

October 5, 1988. Rehearing Denied November 30, 1988.

W.T. Allison, II, Sulphur Springs, for petitioner.

Allison & Associates, James P. Allison, Austin, for respondents.

PER CURIAM.

Darlene Duncan, a court reporter, sued the Hopkins County Commissioners Court to compel it to fund a ten percent salary increase ordered by the district judge pursuant to Tex.Gov't Code Ann. § 52.051 (Vernon 1988). The Commissioners Court counter-claimed for relief under the Uniform Declaratory Judgments Act, Tex.Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 1986). The trial court, with another judge sitting by appointment, granted Duncan's motion for summary judgment, ordered the Commissioners Court to fund the salary increase, and awarded Duncan attorney fees. The court of appeals reversed that judgment and remanded the cause for trial on the merits. 753 S.W.2d 255 (Tex.App.— Tyler 1988). Because the court of appeals' decision conflicts with Mays v. Fifth Court of Appeals, 755 S.W.2d 78 (Tex.1988) and is contrary to the Uniform Declaratory Judgments Act, we grant the application for writ of error and, without hearing oral argument, reverse the judgment of the court of appeals and remand the cause to that court for further consideration. See Tex.R.App.P. 133(b).

In Mays we held that so long as a district judge's order of a pay increase was within the ten percent authorized by section 52.051(d) it was presumptively valid. Although it is undisputed in this case that the pay increase was within the statutory ten percent, the court of appeals did not recognize any presumption of validity but instead concluded that Duncan had the burden of establishing that the pay increase was reasonable. This decision conflicts with our own opinion in Mays.

Furthermore, the trial judge acted within his discretion in awarding attorney fees to Duncan. The Uniform Declaratory Judgments Act expressly provides that "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Tex.Civ.Prac. & Rem. Code Ann. § 37.009 (Vernon 1986). The court of appeals' decision to strike the award of attorney fees is contrary to this statutory authorization.

A majority of the court reverses the judgment of the court of appeals and remands the cause to that court for it to consider the Commissioners Court's other points of error which were not previously addressed.