H.T. Vondy v. Commissioners Court of Uvalde County Texas

IN THE SUPREME COURT OF TEXAS
NO. B-9727
H. T. VONDY, 5
Petitioner g
v. E FROM UVALDE COUNTY
COMMISSIONERS COURT OF UVALDE g ELEVENTH DISTRICT
COUNTY, TEXAS, et al., §
Respondents g
This is an appeal from a mandamus action. Petitioner H. T.
Vondy, the duly elected constable of PreCinct 6 in Uvalde County,
sought a writ of mandamus against the CommiSSioners Court of Uvalde
County and four of its five members, County Judge J. R. White,
CommiSSioners GenéIsle, Gilbert Torres, and Norment Foley, to compel
them to set a reasonable salary for Vondy's office. One commisSioner,
Woodrow Head, was not named as a party, but no objection was made to
his absence in the trial court. The trial court entered judgment
denying Vondy relief. The court of CiVil appeals vacated the trial
court”s judgment and dismissed the cause, holding the failure to
jOin Commissioner Woodrow Head was fundamental error. 601 S.W.2d 808.
We reverse the judgment of the court of CiVil appeals and remand the
cause to the trial court for further proceedings conSistent Wlth this
opinion.
Two issues are presented in this appeal: first, was it
fundamental error to omit CommiSSioner Head, indiVidually, as a
respondent in Vondy's petition for writ of mandamus; second, is it
the duty of the county commiSSioners court to set a reasonable salary
for its duly elected constables?
Vondy Was elected to the office of constable, PreCinct 6,
Uvalde County, Texas on November 4, 1978, and took his oath
1979.
of office on Januaryl7, Vondy appeared before the
15‘; ’
fl
commiSSioners court requesting that a salary be set for his
office. The commiSSioners other than Head, voted not to
set a salary for Vondy. Vondy then petitioned the district
court for a writ of mandamus against the commissioners court
and each of the commiSSioners, individually, except Head. The
trial court denied Vondy any relief. The failure of Vondy
to name Head in his petition was not brought up before the
district court by any type of plea or as a point of error
before the court of ciVil appeals. The court of civil appeals,
on its own motion, held that CommiSSioner Head's absence
from the mandamus petition was fundamental error Since he
was an indispensable party to the suit, citing Gaal v. Townsend,
77 Tex. 464, 14 S.W. 365 (1890). The court of ClVll appeals
then dismissed the cause.
Vondy contends that the commissioners court must fix
a reasonable salary for him pursuant to TEX. REV. CIV. STAT.
ANN. art. 3883i §l (Vernon's 1971), which provides:
Section 1. That in each county in the
State of Texas having the population of less
than twenty thousand (20,000) inhabitants ac—
cording to the last preceding federal census
where all county and district offiCials are
compensated on a salary baSis, the Commissioners
Court shall fix the salaries of the officials
named in this Act at not more than Six Thousand,
Seven Hundred and Fifty Dollars ($6,750) per
annum; pIOVided, however, that no salary shall
be set at a figure lower than thatlactually paid
on the effective date of this Act.
Vondy argues that Head was not an indispensable party because
Head was Willing to comply With the statute in this dispute.
The commiSSioners argue that Woodrow Head was an indispensable
party and the failure of Vondy to name Head indiVidually in
his petition was fundamental error.
lAll statutory references are to Texas ReVised CiVil Statutes
Annotated.
the inherent power to the judlClal branch in Eichelberger v.
Eichelberger, 582 S.W.2d 398 (Tex. 1979). In Eichelberger, we
listed examples of the exerCise of inherent power by courts in
Texas and other jurisdictions. 582 S.W.2d at 398 n. 1. Texas
courts have recognized their inherent powers to control their
judgments, g;g., Coleman v. Zapo, 105 Tex. 491, 151 S.W.1040,
1041 (1912), to punish by contempt, e.g., EX Parte Barnett,
600 S.W.2d 252, 254 (Tex. 1980), to summon and compel the
attendance of witnesses, 24g., Burttschell v. Sheppard, 123
Tex. 113, 69 S.W.2d 402, 403 (1934), and to regulate the
admission to the practice of law, g;g., State Bar of Texas v.
Heard, 603 S.W.2d 829, 831 (Tex. 1980); Scott v. State, 86 Tex.
321, 24 S.W. 789, 790 (1894). In one instance, a Texas court
recognized that a district court would have the power to appOint
probation personnel and set their compensation, if that action
were necessary for the effective administration of the business
of the court. CommiSSioners Court of Lubbock Count v. Martin,
471 S.W.2d 100, 110 (Tex. Civ. App. —— Amarillo 1971, writ ref'd
n.r.e.).
Other state courts have often recognized the neceSSity of
this inherent power to compel payment of sums of money if they
are reasonable and necessary in order to carry out the court's
mandated responSibilities. This power is necessary for the
judiCiary to carry out its functions, independently of the other
branches of government. Carlson v. State ex rel. Stodola, 247
Ind. 631, 220 N.E.2d 532 (1966). This inherent power is also
necessary to protect and preserve the judiCial powers from
impairment or destruction. Mowrer v. Rusk, 95 N.M. 48, 618 P.2d
886, 892 (1980); Judges for the Third JudiCial Circu1t v. County
of We ne, 386 Mich. l, 190 N.W.2d 228, 231 (Mich. 1971), cert.
denied 405 U.S. 923 (1972). See also Annot., 59 A.L.R.3d 569 (1974).
-1l_
M
In particular, courts have employed their inherent power
to hire and require salaries be paid for secretaries, Millholen
v. Riley, 211 Cal. 29, 293 P. 69, 71 (1930), clerks, Smith v.
Miller, 153 C010. 35, 384 P.wd 738, 741 (1963), probation officers,
Noble County CounCil v. State ex rel. Fifer, 234 Ind. 172, 125
N.E.2d 709, 714 (1955), and aSSistants, In Re Matter of Court
Reorganization Plan of Hudson County, 161 N.J. Super. 483, 391
A.2d 1255, 1259 (1978). In Commonwealth ex rel Carroll v. Tate,
442 Pa. 45, 274 A.2d 193 (1971), cert. denied 402 U.S. 74 (1971),
the court issued a mandamus requiring the City council of
Philadelphia to appropriate additional funds necessary to
adequately administer the court of common pleas. In 1857, the
Supreme Court of Pennsylvania required the county to compensate
a constable for his services because of the benefit derived by
the county for such services in the preservation of order and
administration of justice. Lancaster County v. Brinthall, 29 Pa.
38, 40 (1857).
We hold that the county commissioners of Uvalde County must
compensate the county's constables. The jUdlClal system of this
state cannot function properly if those offiCials who are responSible
for carrying out certain duties in that process are not properly
compensated. TEX. R. CIV. P. 103 allows constables to serve process
in this state.
If these constables are not compensated for their
serVices the judiCial process Wlll be impaired because process may
not be served. It is the duty of the commiSSioners court to prov1de
process servers as a necessary part of the proper administration
of justice in this state, and to compensate them adequately.
See Pope & McConnico, PractiCinq Law Wlth the 1981 Texas Rules, 32
BAYLOR L. REV. 457, 484—86 (1980). Constables, prov1ded for in the
"JudiCial Branch" Article of the Constitution, TEX. CONST. art. V
§18, additionally serve other functions necessary to the judiCial
branch of the state.
-12-
Even though the commissioners court is also part of the
judlClal branch of this state, existing under Article V Section 1 of
the Texas Constitution, this fact does not alter our powers to
protect and preserve the judiCiary by compelling payment for
process servers. The legislative branch of this state has the
duty to prOVide the judiCiary With the funds necessary for the
judlClal branch to function adequately. If this were not so,
a legislative body could destrOy the judiCiary by requing to
adequately fund the courts. The judiCiary must have the authority
to prevent any interference Wlth or impairment of the administra—
tion of justice in this state.
Accordingly, the judgment of the court of ciVil appeals
is reversed and the cause is remanded to the district court of
Uvalde County for further proceedings conSistent Wlth this
opinion.
Chief Justice Greenhill, Justices McGee, Denton and Barrow
concur in the result.
Opinion delivered: July 22, 1981
-13-
THE SUPREME COURT OF TEXAS
CHIEF JUSTICE PO BOX 12248 CAPITOL STATION CLERK
JOE R. GREENHILL AUSTIN TEXAS 7871 l CARSON R JACKSON
JUSTICES EXECUTIVE ASS‘T
JACK POPE WILLIAM L. WILUS
SEUERKGEE 1 September 17, 1981 ADMHugHUJWEA$T
JAMES G BENTON MARYANN DEFIBAUGH
CHARLES \V BARROW
ROBERT M CAMPBELL
FRANKLIN S. SPEARS
C. L RAY
JAMES P WALLACE
CC
Mrs. June Richardson
District C1erk
Uva1de County Courthouse
Uva1de, Texas 78801
RE: H. T. VONDY vs. COMMISSIONERS COURT OF UVALDE COUNTY, TEXAS ET AL.
No. B-9727 in the Supreme Court
No. 12,429 in the 38th District Court of Uva1de County, Texas
Dear Mrs. Richardson:
The judgment of the Supreme Court of Texas is now fina1 in the
above referenced cause.
As Ru1e 507, Texas Ru1es of Civi1 Procedure, has been satisfied,
we have issued the mandate as of this date.
Enc1osed with the mandate is a certified copy of our cost bi11
show1ng the charges and payments as ref1ected by the record
for your use in sett1ement.
Very tru1y yours,
GARSON R. JACKSON, C1erk
WW
Mary M Wakefie1d
Chief eputy
Mr. Harry A. Nass, Jr., Atty, San Antonio
Mr. James M. Parker, Atty, San Antonio
Mr. David R. White, County Atty, Uva1de
mandate w/opinion
cost bi11
Enc1.
O
THE SUPREME COURT OF TEXAS
CHIEF JUSTICE P 0 BOX 12248 CAPITOL STATION CLERK
JOE R GREENHILL AUSTIN) mm 787 1 1 GARSON x JACKSON
JUSTICES EXECUTIVE ASS‘T
JACK POPE WILLIAM L. wuus
SEARS MCGEE
mo 1 ADMINISTRATIVE ASS'T
JAMESG DE 1‘ Jlfly 23: 1981 MARYANN DEFIBAUGH
CHARLES W BARROW’
ROBERT M CAMPBELL
FRANKLIN S. SPEARS
CLRAY
JAM ES P \VALL ACE
Mr. Harry A. Nass, Jr., Atty
900 Vance Jackson
San Antonio, Texas 78201
Mr James M. Parker, Atty
1519 Mi1am B1dg.
San Antonio, Texas 78205
Mr. David R. White, Atty
County Attorney
120 East North St.
Uva1de, Texas 78801
RE: 8-9727: H. T. VONDY vs. COMMISSIONERS COURT OF UVALDE COUNTY, TEXAS ET AL.
Gent1emen
Enc1osed p1ease find the judgment of the Supreme Court of Texas in the
above referenced cause as said judgment appears in the minutes of this
Court under the date of Ju1y 22, 19 1.
This is the Judgment that wi11 issue in mandate form to the 1ower
court if no motion for rehearing is fi1ed or if a fi1ed motion for
rehearing is overrqud.
Very tru1y yours,
GARSON R. JACKSON, C1erk
By???
Mary Wakefie1d
Chief eputy
Enc1 copy of judgment
'THESUPREME COURT(3FTTXAS
CHIEF JUSTICE PO BOX 12248 CAPITOL STATION CLERK
JOE R. GREENHILL AUSHN‘ TEXAS 78711 CARSON R JACKSON
JUSTICES EXECUTIVE ASST
JACK POPE WILLIAM L. WILLIS
SEARS MCGEE
JAMES G DEN'ITON
CHARLES W BARROW
JuIy 22, 1981
ADMINISTRATIVE ASST
MARY ANN DEFIBAUGH
ROBERT M CAMPBELL
FRANKLIN S. SPEARS
C. L. RA\
JAM ES P \V-ALLACE
Mr. Harry A. Nass, Jr., Atty
900 Vance Jackson
San Antonio, Texas 78201
Mr. James M. Parker, Atty
1519 Mi1am B1dg.
San Antonio, Texas 78205
Mr. David R. White, Jr.
County Attorney
120 East North St.
Uva1de, Texas 78801
RE: 8-9727: H. T. VONDY vs. COMMISSIONERS COURT OF UVALDE COUNTY, TEXAS ET AL.
No. 5467 in the E1eventh Court of Civ11 Appea1s
No. 12,429 in the 38th District Court of Uva1de County
Gent1emen
Today, the Supreme Court of Texas de1ivered an opinion in the above
referenced cause.
The opinion by Justice Spears reversed the Judgment of the judgment
of the Court of Civi1 Appea1s and remanded the cause to the district
court of Uva1de County for further proceedings.
Copies of the enc1osed opinion are being mai1ed to Justice Ra1eigh
Brown, E1eventh Court of Civi1 AppeaTS, Judge Jack WoodIey, 38th
District Court and Uva1de County District C1erk, Mrs June
Richardson.
Very tru1y yours,
GARSON R. JACKSON, C1erk
By
Wakefie1d
Chie eputy
Enc1 opinion
13
Rule 39, TEX. R. CIV. P., governs the joinder of parties
to a lawsuit. The present rule was completely rewritten in
1970 to remedy much of the confusion and critiCism leveled
at prior Rule 39. See Dorsaneo III, Compulsory Joinder of
Parties in Texas, 14 Hou. L. R. 345, 359 (1977). Present
Rule 39 prOVldeS in part:
Rule 39. JOinder of Persons Needed for Just
Adjudication
(a) Persons to be JOined if Feasible. A
person who is subject to service of process shall
be joined as a party in the action if (1) in his
absence complete relief cannot be accorded among
those already parties, or (2) he claims an in-
terest relating to the subject of the action
and is so situated that the disposition of the
action in his absence may (i) as a practical
matter impair or impede his ability to protect
that interest or (ii) leave any of the persons
already parties subject to a substantial risk
of incurring double, multiple, or other inconSistent
obligations by reason of his claimed interest. If
he has not been so jOined, the court shall order
that he be made a party. If he should join as
a plaintiff but refuses to do so, he may be made
a defendant, or, in a proper case, an involuntary
plaintiff.
(b) Determination by Court Whenever Joinder
Not Feasible. If a person as described in sub—
diViSion (a) (l)-(2) hereof cannot be made a
party, the court shall determine whether in
equity and good conscience the action should be
dismissed, the absent person being thus regarded
as indispensable. The factors to be conSidered
by the court include: first, to what extent a
judgment rendered in the person's absence might
be prejudicial to him or those already parties,
second, the extent to which, by protective pro—
ViSions in the judgment, by the shaping of relief,
or other measures, the prejudice can be lessened
or aVOided; third, whether a judgment rendered
in the person's absence Wlll be adequate; fourth,
whether the plaintiff will have an adequate
remedy if the action is dismissed for non—jOinder.
Prior to the enactment of the present rule, the courts
drew a distinction between necessary and indispensable parties.
2Prior Rule 39 prOVlded in part:
Necessary JOinder of Parties.
Except as otherwise
(a) Necessary jOinder.
(cont.)
In Petroleum Anchor Eguipment, Inc. c. Tyra, 406 S.W.2d 891(1966), this court interpreted prior Rule 39. We stated that
the language of Rule 39(a), when properly interpreted, consti-
tuted the rule's definition of "indispensable" parties whose
jOinder in the trial court is essential to the court's juris—
diction. Therefore, if a person were truly indispensablf,
it would be fundamental error to proceed in his absence. Id.
at 892.
In 1970, uSing Federal Rule 19 as its source, thls
court completely changed Rule 39. Then, in Cooper v. Texas
Gulf Industries, Inc., 513 S.W.2d 200 (Tex. 1974), we reviewed
the new rule. There, the spouses acting together bought
realty which was conveyed to both of them. The husband sued
the grantor to resc1nd the transaction in 1970. The Wife was
not a party to the suit. The husband's suit was later dismissed
Footnote 2 (cont.)
prOVided in these rules, persons having a jOint
interest shall be made parties and be jOined as
plaintiffs or defendants. When a person who should
jOin as a plaintiff refuses to do so, he may be
made a defendant or, in proper cases, an in—
voluntary plaintiff.
(b) Effect of failure to jOin. When persons
who ought to be parties if complete relief is to
be accorded between those already parties, have
not been made parties and are subject to the
jurisdiction of the court, the court shall order
them made parties. The court in its discretion
may proceed in the actiOn without making such
persons parties, if its jurisdiction over them
can be acquired only by their consent or voluntary
appearance; but the judgment rendered therein
shall not affect the rights or liabilities of
persons who are not parties.
(c) Names of omitted persons and reasons for
non-jOinder to be pleaded. In any pleading in which
relief is asked, the pleader shall set forth the
names, if known to him, of persons who ought to
be parties, if complete relief is to be accorded
between those already parties, but who are not
joined, and shall state why they are omitted.
With prejudice. Subsequently, in 1971, a suit for Similar
relief was brought by the husband and Wife jointly. The
grantor sought summary judgment on the basis of res judicata,
asserting that both the husband and Wle were bound by the
prior judgment. We held that the judgment of dismissal was
res judicata as to the claims of the husband in the second
suit. We pointed out that prior to the enactment of
new Rule 39, failure to jOin the wife would be juris—
dictional, but stated: "[T]oday's concern is less that of the
jurisdiction of a court to proceed and is more a question of
whether the court ought to proceed With those who are present."
We then observed: "under the provisions of our present Rule 39
it would be rare indeed if there were a person whose presence
was so indispensable in the sense that his absence deprives
the court of jurisdiction to adjudicate between the parties
already jOined.",
To determine whether a party is jurisdictionally in—
dispensable under Rule 39 the surrounding facts and Circumstances
of each case must be examined. In the present case, the
facts fail to warrant a finding that Commissioner Head was
truly an indispensable party under our interpretation of Rule 39
TEX. R. CIV. P. This is not a situation where a judgment
would adversely affect the interests of absent parties who
had no opportunity to assert their rights in the trial court.
See Prov1dent Tradesmens Bank & Trust Co. v. Patterson, 390
U.S. 102, 110, 126, 88 S. Ct. 733, 19 L. Ed. 2d 936 (1968). Here,
the interests of all the parties could be adjudicated and
complete relief given. Further, the remaining commiSSioners would
not be subject to a substantial risk of incurring double,
multiple, or otherWise inconsistent obligations due to the
absence of CommiSSioner Head. We conclude, therefore, that
because Head was not an indispensable party to the proceeding,
the nonjOinder of Head was not fundamental error.
The commissioners contend that the rules relating
to indispensable parties are modified in this case because
this is a mandamus action. They rely on Gaal v. Townsend,
supra, which involved an action to procure a writ of mandamus
to compel the county judge to permit the appellant to perform
his duties as a county commiSSioner. The other members of
the commiSSioners court were not made parties to the suit.
We stated: "When the performance of a duty is sought to be
compelled by the writ of mandamus, all persons charged With
the performance of that duty must be made parties defendant
in the writ." -
Part of the rationale behind the Gaal v. Townsend deCision
was that only a majority of the commissioners could permit
the appellant to perform his duties as a county commiSSioner.
We stated:
The other members of the [commissioners] court,
not being parties to the writ, could not be affected
by any judgment that might be rendered, and could
not be held in contempt for refusing to admit the
plaintiff to act as a member, although this court
should in this suit declare him entitled to the office,
and command the defendant Townsend to admit him as
such. It is clear that a mandamus should not issue
to compel the county judge to do an act which could
only be performed with the consent of others.
In the present suit three of the four commiSSioners and the
county judge were made parties indiVidually. The commiSSioners
court itself was also named. Therefore, the reasoning of
Gaal v. Townsend is not applicable in the present Situation.
Further, the fact that the commiSSioners court itself
was named in the petition distinguishes this cause from Gaal v.
Townsend under the holding in Rodriguez v. Richmond, 234 S.W.2d
248 (Tex.Civ.App. —- San Antonio 1950, writ ref'd). That case
involved a mandamus suit brought against the county judge
to compel an election for the incorporation of an independent
school district for the election of trustees. The county
judge was not sued in his indiVidual capaCity but rather in his
2;”!
offiCial capacity as county judge. No question was raised
as to the capaCity of the county judge until after appeal
had been perfected. The court of ciVil appeals held that
the Texas Rules of Civil Procedure were now controlling and
disavowed the early case of City of Beaumont v. Stephenson,
95 S.W.2d 1360 (Tex.Civ.App.
-- Beaumont 1936, writ ref‘d
n.r.e.). In Stephenson, the court had held that officers acting
in their personal capacities in requing to perform a duty
are necessary parties in those capaCities.
The Rodriguez court
interpreted Rule 358, as providing that a
TEX. R. CIV. P.,
named public officer in a mandamus suit may be made a party
in his OffiClal caPaCltY-3 Further, since Rule 93 required
that the lack of capacity of a party defendant to be sued
must be raised by verified pleading, defendant's failure
to do so constituted a waiver under Rule 90. The failure
to name the county judge in his personal capacity was
speCifically held to not be fundamental error. Id. at 250.
We think the reasoning in Rodriguez is correct. Mandamus
is a legal proceeding and although extraordinary, the Rules
of Civil Procedure are applicable. The commissioners court was
offiCially named although Commissioner Head was not named
individually. The commissioners did not pOint out any defect
3Rule 358 TEX. R. CIV. P. pIOVided in part:
(a) when a suit in mandamus or injunction is
brought against a person holding a public office,
in his offiCial capaCity, and after final trial
and judgment in the trial court, and notice of
appeal to the Court of CiVil Appeals or Supreme Court
has been given, if such person should vacate such
office, the suit shall not abate, but his successor
may be made a party thereto by a motion shOWing
such facts. (emphaSis added) (This rule was
amended in 1976 to eliminate the reference to notice
of appeal as an appellate step.)
in Vondy's petition relating to the omission of Commissioner
Head and the capacity in which the comMissioners court was
sued. The failure to name Head individually in this mandamus
action was not fundamental error. Gaal v. Townsend, supra,
was deCided long before the present Rules were enacted
and is not controlling.
Consequently, Vondy's failure to jOln all four couhty
commiSSioners was not fundamental error. Since the commiSSioners
court did not raise the pOint, the court of Civil appeals should
not have dismissed the case, but should have conSidered the
merits of Vondy's mandamus action against the commiSSioners.
We now turn to the question of the duty of the commissioners
court to set a reasonable salary for the position of constable.
The Texas Constitution art. XVI §6l (amended 1972) provides
in part as follows:
In all counties in this State, the Commissioners
Courts shall be authorized to determine whether
preCinct officers shall be compensated on a fee
baSlS or on a salary baSlS, with the exception
that it shall be mandatory upon the Commissioners
Courts, to compensate all justices of the peace,
constables, deputy constables and precinct law
enforcement officers on a salary basis beginning
January 1, 1973; . . . . (emphasis added)
Thus, it is mandatory that the commissioners court compensate
constables on a salary baSlS.
The commiSSioners court argues that this constitutional
prOVlSlon only requires the court to compensate these offiCials
on a salary baSlS if they are compensated at all. It reasons
that if the offiCials have never been compensated, they need not
be compensated. The purpose of the amendment was to prohibit
the practice of compensating justices on a fee baSlS. Wichita
County v. Robinson, 155 Tex. l, 276 S.W.2d 509 (1954). Therefore,
it asserts that the prOViSion is a mandate that constables
be compensated, if at all, on a salary baSis. Additionally, it
urges that Since no other statute mandates a minimum salary,
the commiSSioners court has discretion to set no salary at all.
(v
The commiSSioners court next argues that since Vondy is
also a Class B Security Service Contractor4 and operates the
buSiness for profit, the trial court did not abuse its discretion
in denying the mandamus. It argues that a person cannot accept
a public office knowing the amount of compensation and then claim
more is due, Citing Terrell v. King, 118 Tex. 237, 14 SjW.2d
786, 791 (1929). Vondy replies that this does not apply when
the amount of compensation is mandated by law.
Broom v. Tyler
County Commissioners Court, 560 S.W.2d 435, 437 (Tex.Civ.App. -—
Beaumont 1977, no writ). Also the commissioners court contends
that there was no money budgeted or available with which to
pay Vondy at the time of his request.
A final argument made by the commiSSioners court is that
by setting no salary, the court has set a salary. In any event,
it contends that the constitutional proviSion does not mandate
that it set a reasonable salary, which Vondy is requesting.
We do not find the commissioners courts' arguments
persuasive. The constitutional provision clearly mandates
that constables receive a salary. While cases cited by the
commissioners court pOint out that the constitutional prOViSion
was amended to stop the practice of paying constables on a
fee basis, this does not lead to the conclusion that constables
need not now be compensated at all. Furthermore, we conclude
that the commiSSioners court must set a reasonable salary.
While a reasonable salary would be a determination for
the commiSSioners court, Vondy is entitled to be com-
pensated by a reasonable salary. Any other interpretation
of the prOViSion would render it meaningless.
4Article 4413(29bb) §16(b)(2) and §2(9) defines a security
serv1ce contractor as "any guard company, alarm systems
company, armored car company, courier company, or guard dog
company as defined herein."
/.
We also note, that by failure to pay a salary to Vondy, the
commissioners court could be subject to prosecution under TEX. PENAL
CODE ANN. §39.01(a) (3) (Vernon 1974), for failure to perform its
duties imposed by law. By this statute, the legislature recognized
the neceSSity that public offiCials perform the duties required of
them by law and prov1ded sanctions for their failure to do so when
the failure was intentional and to obtain a benefit or harm another.
This court lacks original mandamus jurisdiction over county
offiCials. Cocke v. Smith, 142 Tex. 396, 179 S.W.2d 958 (1944).
Rather, that power is vested in the district court in the exerCise
of its general superVisory control over the orders of the commiSSioners
court. Art. B §8 TEX. CONST.; Grant v. Ammerman, 437 S.W.2d 547, 550
(Tex. 1969); and Article 1908. While such jurisdiction is not used
to substitute the discretion of the district court for that of the
public offiCial, Weber v. City of Sachse, 591 S.W.2d 559 (Tex. Civ.
App. —— Dallas 1979, no writ), the performance of a clear statutory
duty which is ministerial and nondiscretionary should be mandated by
the district court. Wichita County v. Griffin, 284 S.W.2d 253(Tex. Civ. App. -— Ft. Worth 1955, writ ref'd n.r.e.). Even in
matters involving some degree of discretion, the commiSSioners court
may not act arbitrarily. Avery v. Midland County, 406 S.W.2d 422,
428 (Tex. 1966); Stovall v. Shivers, 129 Tex. 256, 103 S.W.2d 363,
367 (1937). Here, the district court should have granted the
mandamus sought by Vondy.
There is another compelling reason that mandamus is proper in
this case. This court, as well as the trial court, has inherent
power to act to protect and preserve the proper administration of
the judiCial system. The Texas Constitution now recognizes this
fundamental prinCiple by prOViding that the Supreme Court "shall
exerCise the jUdlClal power of the State except as otherWise prOVided
in this Constitution." TEX. CONST. Art. V 53 (effective
September 1, 1981). We recently discussed and recognized
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