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

ACCEPTED 01-15-00583-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 8/20/2015 3:48:18 PM CHRISTOPHER PRINE CLERK No. 01-15-00583-CV In the First Court of Appeals FILED IN 1st COURT OF APPEALS THE HONORABLE MARK HENRY,COUNTY JUDGE HOUSTON, OF TEXAS 8/20/2015 3:48:18 PM GALVESTON COUNTY, CHRISTOPHER A. PRINE Clerk Appellant v. THE HONORABLE LONNIE COX, Appellee From the 56th Judicial District Court of Galveston County, Texas, Cause No. 15CV0583 OBJECTION TO SECOND AND “FINAL” MOTION TO EXTEND TIME And RENEWED MOTION TO ENFORCE TEMPORARY INJUNCTION UNDER TRAPs 29.3 and 29.4 TO THE HONORABLE FIRST COURT OF APPEALS: Appellee and this counsel would ordinarily not bother the Court with objections to a motion for extension. However, this case and the present motion, however, are different. The most recent motion is not only a transparent attempt at tactical delay, but outright financial extortion of one or more trial judges in Galveston County. See Exhibit “G”, extract of August 19, 2015 County 1 Commissioners Court Meeting. The traditional principles of forbearance no longer apply to this dispute. Background Compliance with the injunction of July 6, CR 239 ff, was initially half hearted, with the Director of Justice Administration Bonnie Quiroga only gradually given keys, computers and a promise of pay to be delivered on July 21. Then, on July 14, 2015, Mr. Joseph Nixon of the firm of Beirne Parson & Maynard entered as counsel and declared that Appellant would ignore the injunction. See letter of Joseph Nixon, July 14, 2015, Exh. A. Thereafter, Ms. Quiroga’s pay was denied, her computer access cut off, her phone cut off, and she was ousted from her previous quarters to a subsidiary room on the third floor of the Galveston County Justice Center. On July 30, 2015, Counsel Nixon sent a letter (Exh. D) inviting Appellee Cox to “hire” a justice administrator at the same salary –slightly over $63,000— which the trial court had found to be arbitrary and a deliberate attempt to control the hiring process. CR 329, 333, p. 4, para. 4 (“…Respondent Henry abandoned his plan to force a hand-picked candidate as the judiciary’s chief administrative officer, yet, used the ability to set the slary for the new position at a sufficiently low salary salary to continue to control the hiring process.”) 2 A few weeks later, County HR Director Peri Bluemer emailed Judge Cox with a similar suggestion. See Exh. E, Bluemer email of August 11, 2015. That email and its attachment from County Legal Director Robert Boehmer contain a suggestion that the County might artificially superimpose bureaucratic procedures to delay and the “reappointment” of individuals to the same jobs they presently hold but under different titles. The implicit threat is that some individuals might be without jobs and without pay, and publicly held hostage along with the administration of court functions in this dispute. In response, this counsel sent a letter (Exh. F) to Mr. Nixon at 9:20 a.m. August 19, 2015, advising that the proposals of Ms. Bluemer and Mr. Nixon were violative of the injunction, and suggesting that any such actions should be preceeded by application to the trial court—at which time evidence could be heard regarding all violations to date of the inujunction. The present Motion followed about an hour later, at 10:48 a.m. No Basis for “”Extension” The August 19 Motion for a “Final” Extension does not even try to satisfy the requirements of TRAP 10.5. The Reporter’s record was filed on July 17, 2015. Appellant’s counsel has previously indicated that he had an important briefing commitment at the end of July. 3 Appellee accepts for these purposes and for the sake of argument that Appellant’s counsel was “out of the office” and presumably out of commission for all of August 10. That single day is not a significant factor when one has about 20 working days to prepare a brief in an accelerated appeal. Appellant’s counsel cites no other specific assignments or deadlines which have absorbed his time. However, since July 31, 2015, Appellant and his counsel have attempted to delay the progress of this accelerated appeal. See, e.g., the tediously captioned “Motion to Abate, Etc.” filed on August 3, 2015. Since July 31, Appellant has had 13 working days --arguably minus one for a dental appointment out of the office—and has nine days remaining. One can do a lot of briefing in 20 days, yet Appellant insists now on an extension taking the briefing deadline past September 1. Why? The answers are revealing and disturbing. Tactical Delay—SB 1913 From the email of Ms. Bluemer and the attached email of Legal Director Robert Boehmer, it is apparent that Appellant wants to delay briefing past the initial effective date of SB 1913. Senate Bill 1913 as signed codifies the constitutional authority of the trial judges to select staff personnel for the position of Justice Administrator and similar, but retains—as it must under the 4 constitution—funding authority with the Commissioners’ Court. It appears to be the objective of Appellant, per Ms. Bluemer’s missive, to superimpose procedures to hobble the “appointment” of people who are and have been doing the work in question for some time, i.e., to control the hiring process and further to control that process by the imposition of arbitrary and unreasonably low salaries. See Temporary Injunction, CR CR 329, 333, p. 4, Para. 6. Lawyers’ Money An even less inspiring reason is the bonanza which this case has become for Appellant’s and numerous counsel. See Exhibit C, a reprint of the Galveston County Daily News Article of Sunday, August 8 2015. To date, the County has spent c. $177,000 in the mandamus proceeding and the case now on appeal. In a two week period, the firm of Baker & Hostetler had seven attorneys working on this case, and has been paid c. $147,000. A single attorney working at $550 per hour charged and was paid c. $73,000 for his work over a two week period-- all of which produced the Temporary Injunction of July 6. Judges’ Money The response of Appellant to the public outcry over the fees paid to lawyers has been to violate wholesale the separation of powers clause by attempting to threaten one or perhaps all of Galveston’s trial judges with economic retaliation. 5 At the Commissioners’ Court meeting of Wednesday, August 19, Appellant and other Commissioners openly speculated about denying the trial judges the $18,000 per year supplement which has been paid for some years—ostensibly to defray the legal fees mentioned above. See Transcript, attached as Exhibit G hereto, and in particular pp. 5-6: COMMISSIONER GIUSTI: How Much? COMMISSIONER DENNARD: That’s the discussion. I think one factor is the amount of attorneys fees that we’re incurring. COMMISSIONER GIUSTI: We’re incurring more attorney’s fees because you are having for [sic] trials. JUDGE HENRY: No. We are incurring attorney’s fees because one of them sued me. COMMISSIONER GIUSTI: Oh, those fees. This could kind of look pretty Retaliatory, huh? COMMISSIONER DENNARD: I don’t think it’s a question of retaliatory. I think it’s a question of somebody has got to pay the bill. So where are those going to come from. Are they going to come out of general revenues or are they going to come out of the – come from the folks who are responsible for the costs? The proceedings of August 19, Exhibit G, reveal the objective of Appellant—to turn trial judges into subservient vassals of the Commissioners Court. If one reads the transcript as favoring selective denial of a supplement to only one or a few of the trial judges, it would be a clear instance of direct and unconstitutional influence. On the other hand, if the $18,000 supplement were denied to all judges, it would simply be collective extortion against the entire judiciary of Galveston County. 6 Renewed Motion for Enforcement Under TRAPs 29.3 and 29.4 Until now, this Honorable Court appears to have indulged in an assumption of good faith and responsible behavior on the part of Appellant and those acting with him. That assumption is no longer warranted. It is now even more obvious that Appellant Henry and others are trying to “game” the system by administratively dismantling the Justice Administration System and superimposing administrative requirements and financial sanctions which will hold the trial courts and the justice system hostage. Prayer The Court is urged to promptly DENY the latest Motion by Appellant, and further is re-urged to refer this case to the District Court for enforcement, or alternatively for hearings, receipt of evidence, and a report to this Court of Appeals, under TRAPs 29.3 and 29.4. Respectfully submitted, /s/ Mark W. Stevens Mark W. Stevens TBN 19184300 P. Box 8118 Galveston, Texas 77553 409.765.6306 Fax 409.765.6459 Email: markwandstev@sbcglobal.net Counsel for th Lonnie Cox of the 56 Judicial District Court 7 Certificate of Compliance The foregoing instrument in relevant parts contains 1,334 words in Times New Roman Type, with text double spaced and extended quotes in 2.0 spacing. /s/ Mark W. Stevens Mark W. Stevens Certificate of Service The foregoing was efiled and e-mailed PDF to Mr. Edward Friedman on August 20, 2015 at efriedman@bakerlaw.com, and also to James P. Allison (j.allison@allison-bass.com) ; J. Eric Magee (e.magee@allison-bass.com); and Phillip Ledbetter (p.ledbetter@allison-bass.com) and N. Terry Adams, Jr. at the firm of Beirne Maynard Parsons LLP (tadams@bmpllp.com) . An additional copy of this instrument has been served via email to Mr. Joseph M. Nixon at the firm of Bierne, Maynard & Parsons (jnixon@bpmllp.com) and to James P. Allison at j.allison@allison-bass.com. /s/ Mark W. Stevens Mark W. Stevens Exhibits A Joseph Nixon Letter of July 14, 2015 B Mark Henry Memo to County Auditor July16, 2015 C Galveston County Daily News Article, August 8, 2015 D Joseph Nixon Letter of July 30, 2015 E Peri Bluemer email of August 11, 2015 F Mark W. Stevens Letter to Mr. Nixon of August 19, 2015 G Transcript of Commissioners Meeting of August 19, 2015 8 BEIRNE, MAYNARD & PARSONS. L.L.P. 1300 POST OAK BOULEVARD SUITE 2500 HOUSTON, TEXAS 77056-3000 (713) 62;3-0887 DIRECT D,AL: (71;3) 871-6609 EMAIl...: JN1XQJ/toI@BMPLLP,CON FAX (713) 960-15':7 SOARf:) CERTIFIED CiVIL TRIAL LAW TEXAS SOARO OF L.EGAL SP£CIAl..IZAT'ON July 14, 2015 Mark W. Stevens VIA FIRST CLASS MAIL, Attorney at Law CERTIFIED MAIL, P.O. Box 8118 FACSIMILE (409) 765-6459, AND Galveston, Texas 77553 EMAIL markwandstev@sbcglobal.net Re: Cause No. 15CV0583; The Honorable Lonnie Cox, Local Administrative Judge, Galveston Co. v. The Honorable Mark Henry, County Judge, Galveston County; in the 56th Judicial District Court of Galveston County, Texas Dear Mr. Stevens: I now represent the Honorable Mark Henry in the above-referenced case and have attached for your review a file-stamped copy of the Notice of Appeal which was filed on July 13, 2015. Because the appeal is based upon the court's denial of the plea to the jurisdiction and the trial court's incorrect assumption of subject matter jurisdiction, the entire proceeding, including the application of the temporary injunction, is stayed pursuant to Tex. Civ. Prac. & Rem. Code § 51.014(aX8) and (b). You should further note that the filing of the notice of appeal suspended the temporary injunction pursuant to Tex. R. App. P. 29.1 (b) and Tex. Civ. Prac. & Rem Code § 6.001(b)(4). Accordingly, Ms. Bonnie Quiroga will no longer be allowed access to Galveston County facilities, office or infrastructure other than that which is accessible to the public. She is, of course, not considered an employee of the County, has no job function or duties, and will not receive a salary or benefits from the County. I realize it is not necessary for you to remind your client that this matter is no longer in either his jurisdiction or the jurisdiction of the trial court, if it ever was. Accordingly, any attempt to unilaterally enforce the temporary injunction by way of a new, ex parte verbal or written order will be met with the most rigorous of opposition utilizing all lawful means necessary to protect the civil rights of those who are County employees. If you have any questions, please do not hesitate to contact me. Very truly yours, ~14~[A,~ Joseph M. Nixon 2198919v.19999991114011 EXHIBIT "A" P. 1/4 A Flled: 7113/20158:13:35 PM JOHN D, KINARD - District Clerk Galveston County, Texas Envelope No. 6048080 By: Shaiija Dixit 7/14120159:35:54 AM CAUSE NO, 15-CV-0583 THE HON. LONNIE COX § IN THE DISTRICT COURT OF § PLAINTIFF, § § v. § 56TH JUDICIAL DISTRICT § THE HON. MARK HENRY, COUNTY § JUDGE OF GALVESTON COUNTY, § § DEFENDANT. § GALVESTON COUNTY, TEXAS NOTICE OF APPEAL Defendant, The Honorable Mark Henry, County Judge of Galveston County, files this Notice of Appeal, pursuant to section 51.014(a)(8) of the Texas Civil Practice and Remedies Code and Rules 25.1 and 26.I(b) of the Texas Rules of Appellate Procedure, and would respectfully show the Court as follows: 1. Defendant, The Honorable Mark Henry, County Judge of Galveston County desires to appeal this Court's Order, signed June 23, 2015, that denies his Plea to the Jurisdiction in the above-captioned matter. 2. Defendant appeals to the First or Fourteenth Court of Appeals in Houston Texas. Defendant believes this interlocutory appeal should go to the First Court of Appeals because Defendant has previously filed a related (a) original proceeding, and (b) interlocutory appeal in the First Court of Appeals- both arising from this same case: a No. 0 1-14-00820-CV; In re Galveston County Judge Mark Henry, et al.; and b. No. Ol-15-00583-CV; The Honorable Mark henry, Judge of Galveston County v. The Honorable Lonnie Cox. EXHlBIT ttA') P. 2/4 3. A copy of this Notice of Appeal has been served on all parties to the proceeding from which this interlocutory appeal is taken. See TEX. R. APP. P. 2S.l(e), 28.1 (b). 4. This interlocutory appeal is an accelerated appeal under Rule 28.1 of the Texas Rules of Appellate Procedure and is not a parental termination or child protection case. TEX. R. ApP. P. 28.1, 25.1(d)(6). 5. This interlocutory appeal results in an automatic stay of all proceeding in the trial cOUli during the pendency this appeal. TEX. Crv. PRAC. & REM CODE §51.014(b), (c). Respectfully submitted, BAKER & HOSTETLER LLP By: //s/ Edward L. Friedman Edward L. Friedman Texas Bar No. 07462950 efriedman@bakerlaw.com 811 Main Street Suite 1100 Houston, Texas 77002~6111 Telephone: 713.751.1600 Facsimile: 713.751.1717 Attorney tor Defendant The Honorable Judge Mark Henry Exhibit "'Nfl, 3/4 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice of Appeal was sent to all counsel of record by email and facsimile on this 13th day of July, 2015 as follows: /s/ Edward L. Friedman Attorney for Defendant The Honorable Judge Mark Henry EXhibit flAil P. 4/4 3 MEMORANDUM TO: Kevin Walsh, Galveston County Treasurer FROM: Mark Henry, Galveston County Judge DATE: July 16,2015 RE: Payroll for Unfunded and Unauthorized County Positions As you are aware, the County may not payor authorize salary disbursements to individuals who are neither county employees nor hold positions for which the county has not authorized payment. I have attached for your review a copy of the certified minutes from the Commissioner's Court meeting held on June 13, 2015. As you can see from these minutes, the Commissioner's Court voted for and issued an order removing from the budget the salary and position of Director of Judicial Administration. Previously, Ms. Bonnie Quiroga had been dismissed from that position, also by vote and order passed by the Commissioner's Court. Although ancillary orders from District Courts have issued, those orders are suspended by the application of Tex. Civ. Rem. & Prac. Code §§ 6.001(b)(4) and 51.014(a)(8) and (b) and Tex. R. App. 29.1 (b). Additionally, the Commissioner's Court has not voted to reinstate Ms. Quiroga, her salary, or the position of Director of Judicial Administration. As one member of the Commissioner'S Court may not revoke or reverse the express order of a prior decision of the Commissioner's Court, the county should not disburse any payment, salary or funds whatsoever to Ms. Quiroga until such time as the entire Court has voted and ordered to do so. To date, a vote to alter the Commissioner's Court orders ofJune 13, 2015 has not occurred. UBJECTION TO MEDIATION~txh;b1t UB U 2199867v.J 9999991ll4()1l B C01JNTYBILL Cootim.ledfrompage A1 ,minedtheiudependence ofth.e,~iA.,·.·". ;··.· . ' . ......... }'t~aary; ":Il1e~ has.racked upa~tal~f~197,159.90 inj~.teessin~ 1ile ~g.stattOO. 'ac­ . cording to dDcuments peIlate court inHouston, ··.totaJ.ot~3,960/He·said .i(\wal obtaine tn~ Qilird News. .' A majority ·of is now 'repr~tiri¢ ~ A~(}ile:``.··tlje (~bUledto the``~· ..~edj the cost' camefu>m' one county; TotallegalCQSlis. le .,Ill~!·,cobSti a national law finn with News do notincludefees. ipg.. .aju~ge . £oUi4 ,•.``. .''being Houston office, billed incun-edby.· 'cQJ:m:rtiS&j~el;$'.". ",_~_....,,_,... 'tn. alaw$ilttnatthefees«We the countY $147,102.10 firm becauSe eratiol for two weeks of·wOJ:~ ~lli(); completed byasev`` ; gao court or the judiciary to use of funds, but argued taxpayers, but conceded chacour.koop@galvnews. a get this thing resolved!' of Stephen Holmes said "I ges, mean, who's benefiting the here? The lawyers. vyhy )ID- can't we sit down and re­ ked solve our differences:' Iges Joe Giusti shared a :>ri1, similar opinion. rled "No matter who wins or- the court case, the tax:­ rail- payers lose because ;til1, they're the one's footing i to the bill:' Giusti said. •tate The remaining BEIRNE, MAYNARD & PARSONS, L.L.P. 1300 POST OAK BOULEVARD SUITE 2500 HOUSTON, TEXAS 77056-3000 ,JOSEPH M. NIXON (713) 623-0887 DIRECT D,AL: (713) 871-6809 EMAIL: JNIXON@BMPLLP.COM FAX (713) 960-1527 BOARD CERTIFIED CIVIL TRIAL LAW TF"A5 BOARD Of' LEGAL SPECIALIZATION July 30,2015 Mark W. Stevens VIA FIRST CLASS MAIL, Attorney at Law CERTIFIED MAIL, AND P.O. Box 8118 EMAIL markwandstev@sbcglobal.net Galveston, Texas 77553 Re: Cause No. 15CV0583; The Honorable Lonnie Cox, Local Administrative Judge, Galveston Co. v. The Honorable Mark Henry, County Judge, Galveston County; in the 56 th Judicial District Court of Galveston County, Texas Dear Mr. Stevens: I am writing so that you might remind your client in this case that he has the opportunity to appoint a candidate of his choice, without approval or consideration of the Galveston County Commissioner's Court, to the following positions: Court Manager Annual salary: 22(E) $63,695 Administrative Specialist Annual salary: 18(A) $42,907 Administrative Coordinator Annual salary: 15(A) $36,998 Administrative Assistant Annual salary: 14(A) $35,215 Administrative Officer Annual salary: 19(A) $45,079. On June 13,2015, the Commissioner's Court created positions at your client's request. This is at least the second request of your client to fill these positions. Please take note of your client's sworn testimony as to whether there was a critical current need for filling the position of Director of Justice Administration (annual salary up to $120,000) which the County tenninated in July, 2014: Q: (By Mr. Friedman) The District Judges have not had or at least - the District Judges have not had anyone in the position of the Director of Justice Administration since July 24 of2014; is that right? A: [By Judge Cox] We've been operating without that person, yes. o Mr. Mark Stevens July 30, 2015 Page 2 Q: And the Court Systems didn't shut down, didn't collapse. The Court Systems continued to operate and maintain efficiently, correct? A. The Court Systems continued to operate, yes. Hearing transcript Vol. 2, p. 118, line 20 to p. 117, line 4 (June 23,2015). As Ms. Bonnie Quiroga remains without a position with Galveston County, your client may appoint Ms. Quiroga to any of the above-referenced positions. Very truly yours, ``7 2206151v.1005032/108027 From: Bluemer, Peri Sent: Wednesday, August 12, 2015 10:36 AM To: Cox, Lonnie; Sullivan, Kim; Roberts, Barbara; Grady, Patricia; Grady, John; Slaughter, Michelle; Ellisor, John; Neves, Kerry; Darring, Anne; Ewing, Jack Cc: Boemer, Bob Subject: FW: Court administrator system background Hello: Based on the information I received from the Legal department (attached and below), I wanted to reach out to all of you. The hiring process takes some time. Therefore, in order to ensure your ability to place employees into the pOSitions effective September 1st, I encourage you to begin the interview and hiring process now. The court administrator system goes into effect in just three weeks. I want to be very clear that The Human Resources Department is available to assist your efforts. We offer resume screening, pre-interviews and full interview packets as well as reference checking. And, if you would like to consider any existing employees for these positions, we have a great INTERNAL Candidate interview tool as well. This tool is optional, but I wanted you to know it is available for you. Internal candidates can interview during work hours. Please let me know if there is anything we can do to assist with this process. ~Peri Peri A. Bluemer thief Human Resources Officer t;alveston County, Texas ----....... ---------~--~------. [ Peri.bluemer@co.galveston.tx.us 722 Moody, Galveston, Texas 77550 I if 409-770-5350 I Fax: 409-766-4599ICell: 409-692-5273 Galveston County Human Resources Core Purpose We Want "fa Be llle Bl!st We GII'I Be fn Making: PQ.opi es' livel> E~s,ier, Strategies o Follow Thro!.leh To The Resohrtiol1 EveoyTime o Consistently Rc"'C