the Honorable Mark Henry, County Judge of Galveston County v. the Honorable Lonnie Cox, Judge of the 56th District Court of Galveston County ( 2015 )


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  •                                                                              ACCEPTED
    01-15-00583-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    7/8/2015 4:16:15 PM
    CHRISTOPHER PRINE
    CLERK
    NO. 01-15-00583-CV
    In the Court of Appeals               FILED IN
    for the                1st COURT OF APPEALS
    HOUSTON, TEXAS
    First District of Texas        7/8/2015 4:16:15 PM
    CHRISTOPHER A. PRINE
    Clerk
    THE HONORABLE MARK HENRY, COUNTY JUDGE OF GALVESTON COUNTY,
    Appellant,
    v.
    THE HONORABLE LONNIE COX,
    Appellee.
    From the 56th Judicial District Court of
    Galveston County, Texas, Cause No. 15-CV-0583
    APPELLANT’S REPLY IN SUPPORT OF EMERGENCY MOTION FOR STAY
    Edward L. Friedman                 James P. Allison
    State Bar No. 07462950             Texas Bar No. 01090000
    efriedman@bakerlaw.com             j.allison@allison-bass.com
    BAKER & HOSTETLER LLP              J. Eric Magee
    811 Main Street, Suite 1100        Texas Bar No. 24007585
    Houston, Texas 77002               e.magee@allison-bass.com
    Telephone: 713.751.1600            Phillip Ledbetter
    Facsimile: 713.751.1717            Texas Bar No. 24041316
    p.ledbettcr@allison-bass.com
    ALLISON, BASS & MAGEE, L.L.P.
    A.O. Watson House
    402 W. 12th Street
    Austin, Texas 78701
    Telephone: 512.482.0701
    Facsimile: 512.480.0902
    Attorneys for Appellant
    REPLY IN SUPPORT OF EMERGENCY MOTION FOR STAY
    TO THE HONORABLE COURT OF APPEALS:
    Texas Rule of Appellate Procedure 29.3 provides that this Court
    may enter any temporary orders necessary to preserve the parties’
    rights until disposition of the appeal. TEX. R. APP. PROC. 29.3. This
    Court should grant a stay of the trial court’s temporary injunction until
    the appeal on the merits can be decided. The tone and tenor of Judge
    Cox’s Response, suggesting the need to pursue contempt proceedings
    and implying sanctions should be levied simply for pursuing an
    interlocutory appeal, demonstrates the need for an immediate stay.
    In less politically tumultuous circumstances, it would be
    recognized and accepted that Judge Henry’s filing of a notice of appeal
    automatically suspends the interlocutory temporary injunction order
    pending the appeal. See TEX. R. APP. P. 29.1(b) and TEX. CIV. PRAC. &
    REM. CODE § 6.001. The principal case cited by Judge Cox in the
    Response concerned a final judgment and did not implicate TRAP
    29.1(b) or an appellate court’s ability to grant a stay under TRAP 29.3.
    See In re Bd. for Educator Certification 
    452 S.W.3d 802
    , 807 n. 36 (Tex.
    2014) (not addressing TRAP 29 and noting that its holding is consistent
    1
    with the principle that appellate courts have “near-unlimited” authority
    to grant a stay); see also Dallas v. North By West Entertainment, 
    24 S.W.3d 917
    , 918-19 (Tex. App.—Dallas 2000, no pet.) (stating in the
    context of an interlocutory appeal that “Rule 24 is a general rule that
    provides how appellants may supersede final judgments. In contrast,
    rule 29 is a specific rule applying only to the appeal of interlocutory
    orders in civil cases.”).
    In any event, Judge Henry seeks a stay from this Court under the
    authority of TRAP 29.3—and recognition of TRAP 29.1(b)—until the
    merits of his appeal can be addressed by this Court. Judge Cox’s
    arguments do not relate to a grant of a stay under TRAP 29.3. Instead,
    Judge Cox’s arguments veer into the merits of the appeal itself or
    arguments that Judge Cox apparently intends to raise at a future
    contempt proceeding. Simply stated, Judge Cox fails to present any
    compelling reason for this Court not to exercise its authority to preserve
    the parties’ rights until disposition of the appeal under TRAP 29.3.
    The need for a stay is evident. The temporary injunction not only
    intrudes into separation of powers concerns between the executive and
    judicial branches, but requires Judge Henry to act on behalf of each of
    2
    the independently elected five-member commissioners court, requiring
    Judge Henry to recreate a position that no longer exists as well as
    amend the Galveston County budget in order to transfer funds back
    into the Justice Administration Department to the salary ordered by
    the court. See TEX. LOCAL GOV’T CODE § 81.001, et seq.; see also TEX.
    LOCAL GOV’T CODE § 111.001, et seq. (outlining commissioners court
    responsibility regarding budgetary process). Judge Henry is but one
    vote among five.
    Judge Cox suggests that the other Commissioners can be held in
    contempt for “acting in concert” with Judge Henry, a questionable claim
    that can be debated at a future point, but Judge Cox does not address
    the potential jeopardy faced by Judge Henry under the temporary
    injunction, requiring him alone to: (i) re-establish the Justice
    Administration Department, (ii) recreate the Director of Justice
    Administration position (but with fewer duties and responsibilities than
    it previously had), (iii) reinstate Ms. Quiroga to the position of Director
    of Justice Administration, and (iv) amend the budget to transfer funds
    into the Department of Justice Administration in order to pay Ms.
    Quiroga the salary ordered by the trial court. Only the commissioners
    3
    court as a whole has the responsibility for setting the annual county
    budget and may spend county funds only “in strict compliance with the
    budget.” TEX. LOCAL GOV’T CODE § 111.070; see also 
    id. §§ 111.003,
    111.0675; Gattis v. Duty, 
    349 S.W.3d 193
    , 203 (Tex. App.–Austin 2011,
    no pet.). Setting aside the merits of the temporary injunction itself,
    Judge Henry could vote consistently with temporary injunction and
    have his vote overruled by a majority of the commissioners court voting
    contrary. Judge Henry should not be in risk of contempt if a majority of
    the commissioner’s court does not vote consistently with the
    requirements of the temporary injunction.
    CONCLUSION AND REQUEST FOR RELIEF
    Judge Henry should have the opportunity to demonstrate to this
    Court that the trial court abused its discretion in granting the
    temporary injunction without jeopardy while this Court considers the
    merits of the appeal. A stay of the temporary injunction is essential in
    order to avoid further political rancor and discord among the
    Administrative Judges and the County Judge while this issue is
    resolved through this appeal. For all of the reasons stated above, Judge
    Henry requests this Court to issue a stay of enforcement of the
    4
    temporary injunction from which this appeal is taken. Judge Henry
    further requests all other relief to which he may be entitled.
    Respectfully submitted,
    /s/ Edward L. Friedman
    Edward L. Friedman
    Texas Bar No. 07462950
    efriedman@bakerlaw.com
    BAKERHOSTETLER LLP
    811 Main Street, Suite 1100
    Houston, Texas 77002
    Telephone: 713.751.1600
    Facsimile: 713.751.1717
    James P. Allison
    Texas Bar No. 01090000
    j.allison@allison-bass.com
    J. Eric Magee
    Texas Bar No. 24007585
    e.magee@allison-bass.com
    Phillip Ledbetter
    Texas Bar No. 24041316
    p.ledbettcr@allison-bass.com
    ALLISON, BASS & MAGEE, L.L.P.
    A.O. Watson House
    402 W. 12th Street
    Austin, Texas 78701
    Telephone: 512.482.0701
    Facsimile: (512) 480-0902
    Attorneys for Appellant
    5
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the foregoing
    document has been served to the following parties on this the 8th day of
    July, 2015, in accordance with the Texas Rules of Appellate Procedure
    and the electronic filing procedures.
    /s/ Edward L. Friedman
    Edward L. Friedman
    6
    

Document Info

Docket Number: 01-15-00583-CV

Filed Date: 7/8/2015

Precedential Status: Precedential

Modified Date: 9/29/2016