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

ACCEPTED
01-15-00583-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/7/2015 9:39:16 AM
CHRISTOPHER PRINE
CLERK
NO. __________________
In the Court of Appeals FILED IN
for the 1st COURT OF APPEALS
HOUSTON, TEXAS
First District of Texas 7/7/2015 9:39:16 AM
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 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
EMERGENCY MOTION FOR STAY
TO THE HONORABLE COURT OF APPEALS:
The Honorable Mark Henry, County Judge of Galveston,
Appellant, moves pursuant to Rules 29.1(b) and 29.3 of the Texas Rules
of Appellate Procedure, for an emergency stay of a temporary injunction
with which he cannot lawfully comply. A stay is needed to prevent
contempt proceedings from being initiated based on that temporary
injunction and to avoid further political discord between the
administrative judges of Galveston County and the Galveston County
Commissioners Court. 1
BACKGROUND FACTS
Judge Henry is the County Judge of Galveston County. He
presides over the five-member Galveston County Commissioners Court.
Judge Cox is the presiding judge of the 56th Judicial District Court of
Galveston County and the Administrative Judge of the Galveston
County District Courts.
1Indeed, one journalist has described this case as “a separation-of-powers dispute of epic
proportions.” See Angela Morris, Judges, Commissioners Fighting in Separation-of-Powers
Brawl, Texas Lawyer, June 26, 2015,
http://www.texaslawyer.com/id=1202730719716/Judges-Commissioners-Fighting-in-
SeparationofPowers-Brawl#ixzz3eStNanng (emphasis added).
1
The legal dispute underlying this motion for stay centers on the
commissioners court’s July 24, 2014 employment termination of Bonita
Quiroga, a nonparty to this appeal or the injunction proceeding below.
Prior to her discharge, Ms. Quiroga served as Galveston County’s
Director of Justice Administration, a position that was initially created
in 1995 and included duties related to both the legislative and judicial
branches. Ms. Quiroga was appointed to that position by the
commissioners court in 2000.2 At the time of her termination, Ms.
Quiroga had thirteen (13) direct reports, nine (9) of whom performed
services related to the legislative branch functions and five (5) of whom
performed functions related to the judicial branch functions.
Throughout her employment as Director, she was supervised by the
2 There is no statutory basis for the position of Director of Justice Administration. At the
time the position was created in the county, Chapter 75 of the Texas Government Code did
not authorize the Galveston County district courts to establish a court administration
system or appoint a court administrator. See TEX. GOV’T CODE § 75.401, et seq.
Furthermore, Ms. Quiroga was not an appointee of the judiciary pursuant to Chapter 151 of
the Texas Local Government Code. She was also not employed under any statute by which
the Director of Justice Administration served at the pleasure of the administrative district
judge. See, e.g., TEX. GOV’T CODE § 52.041 (“An official court reporter is a sworn officer of
the court and holds office at the pleasure of the court.”); TEX. GOV’T CODE § 74.101(b)
(“Each court coordinator serves at the pleasure of the judge who appointed him.”); TEX.
GOV’T CODE § 76.002 (community supervision and correction departments established and
supervised by the district and statutory county court judges trying criminal cases). Rather,
the position always reported to, and was under the supervision of, the County Judge and
commissioners court.
2
commissioners court and—at all times—reported directly to the County
Judge and commissioners court.
Yet, Judge Cox contends that the mere fact that Ms. Quiroga
performed some judiciary-related functions empowered him with the
exclusive authority to make decisions regarding her employment (i.e., to
hire and fire her). As a result, Judge Cox issued two ex parte orders
seeking to undo Ms. Quiroga’s termination and initiated temporary
injunction and contempt proceedings against Judge Henry. Notably
absent as parties in the present lawsuit are any of the four
commissioners of Galveston County or the commissioners court itself.
During the protracted legal and political dispute over Ms.
Quiroga’s termination, attempts were made to resolve the issue. One
such endeavor culminated on May 12, 2015, when Judge Cox, along
with the administrative judges for the Galveston County Courts at Law
and Probate Court, submitted an application to the commissioners
court, pursuant to section 74.103 of the Texas Government Code and
Chapter 151 of the Texas Local Government Code, to create the position
of Director of Court Administration, which would report to Judge Cox as
the Administrative District Judge. The application asked the
3
commissioners court to create the position of Director of Court
Administration, which would perform all of the judiciary-related duties
previously performed by the Director of Justice Administration position,
but none of the legislative-related duties previously performed by the
Director. Judge Cox requested that the new position be paid within a
salary range of $85,000 – $120,000 (the approximate salary Ms.
Quiroga previously earned as Director of Justice Administration).
On June 13, 2015, the commissioners court approved the new
position of Director of Court Administration, but at a salary range
between $57,705 and $63,695, which it determined was more
commensurate for the newly-created position which had less duties and
less direct reports than the Director of Justice Administration position.
That same day, the commissioners court also provided several
administrative staff support positions for the Director of Court
Administration, each of these positions was created in the 56th Judicial
District Court. The commissioners court recognized that Judge Cox
could appoint whomever he chooses to the newly-created positions,
specifically including Ms. Quiroga. Because the new Director of Court
Administration position rendered the Director of Justice Administration
4
position substantially duplicative and unnecessary, the commissioners
court abolished the latter position in the Justice Administration
Department, and transferred funds associated with the salary and
benefits for the former Director of Justice Administration position to the
General Government Fund.
Not content with the salary set by commissioners court for the
Director of Court Administration position, Judge Cox initiated the
instant action solely against Judge Henry. Judge Cox did not name the
commissioners court or any of the four commissioners as a party to the
litigation. In this action, Judge Cox sought and received an ex parte
temporary restraining order and recently a temporary injunction
against Judge Henry. Judge Cox also seeks a declaration of constructive
contempt against Judge Henry for his purported violations of Judge
Cox’s two ex parte orders. All this as part of Justice Cox’s endeavor to
reinstate Ms. Quiroga as Director of Justice Administration—a position
from which she was rightfully terminated a year ago and that no longer
exists.
After several days of evidence and argument, the Honorable
Sharolyn Wood, presiding over the 56th Judicial District Court of
5
Galveston County, granted Judge Cox’s application for a temporary
injunction. The trial court issued a prohibitive and mandatory
injunction against Judge Henry under the guise of “return[ing] to the
last, peaceful, uncontested status of July 23, 2014.” The temporary
injunction requires Judge Henry “and all acting in concert with him” to
reestablish the position of Director of Justice Administration, remove
the legislative-related duties from that position, appoint Ms. Quiroga to
the position, and set Ms. Quiroga’s salary at the same amount she was
earning a year ago. Accordingly, the temporary injunction attempts to
order Judge Henry to force the commissioners court—a nonparty to this
suit—to recreate a position that no longer exists and, critically, to
amend the Galveston County budget in order to transfer funds back
into the Justice Administration Department to pay Ms. Quiroga the
salary ordered by the court. (See Exhibit A).
Importantly, during the hearing, counsel for Judge Henry
requested a stay of the temporary injunction pending an interlocutory
appeal of the order. Instead of conditionally granting the requested stay
on the condition that a notice of appeal is filed in short order, Judge
Wood denied the request outright. On the filing of Judge Henry’s notice
6
of appeal, the temporary injunction was automatically stayed pursuant
to TEX. R. APP. P. 29.1(b) and TEX. CIV. PRAC. & REM CODE § 6.001. See
Dallas v. North By West Entertainment, 24 S.W.3d 917, 918-19 (Tex.
App.—Dallas 2000, no pet.) (holding that Rule 29 stays a temporary
injunction appealed by a governmental entity); Enriquez v. Hooten, 857
S.W.2d 153, 154-55 (Tex. App.—El Paso 1993, no writ) (concluding that
TEX. CIV. PRAC. & REM. CODE § 6.001 applies to county commissioners);
Public Util. Comm’n v. Coalition of Cities for Affordable Util. Rates, 776
S.W.2d 221, 222 (Tex. App—Austin 1989, no writ) (holding that, when a
state commission has the right under section 6.001 of the Texas Civil
Practice and Remedies Code to supersede an order, the trial court
cannot deny suspension of a temporary injunction). Therefore, Judge
Wood abused her discretion by denying Judge Henry’s request to stay
the enforcement of the temporary injunction. See, e.g., Dallas, 24
S.W.3d at 918 (rejecting arguments that trial court had discretion to
deny government entities’ request to stay temporary injunction). 3 As
3 While this ground alone is sufficient to warrant a stay from this Court, in an abundance of
caution, appellant sets forth the additional bases to support temporary relief and the
compelling circumstances which establish the necessity of the requested stay from this
Court. See TEX. R. CIV. P. 29.3; Lamar Builders, Inc. v. Guardian Savings & Loan Assoc.,
786 S.W.2d 789, 790-91 (Tex. App.—Houston [1st Dist.] 1990, no writ).
7
such, an immediate stay of the temporary injunction by this Court is
required in order to avoid contempt proceedings and to avoid further
political discord.
AN EMERGENCY STAY OF THE TEMPORARY INJUNCTION IS NECESSARY
A. The temporary injunction attempts to order Judge Henry
to obtain results that he has no lawful ability to achieve.
Judge Henry is without authority to unilaterally (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. See
Canales v. Laughlin, 214 S.W.2d 431, 455 (Tex. 1948) (“[T]he individual
commissioners have no authority to bind the county by their separate
action.”); Nueces Cnty. v. De Pena, 953 S.W.2d 835 (Tex. App.—Corpus
Christi 1997, no writ) (same). The commissioners court, as a whole, is
charged with the crucial responsibility of 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,
8
111.0675; Gattis v. Duty, 349 S.W.3d 193, 203 (Tex. App.–Austin 2011,
no pet.) (providing that the commissioners court may authorize an
amendment to the original budget only after compliance with the strict
procedures set forth by statute). It is worth noting that a failure to
adhere to the statutory budget requirements would subject the
commissioners court to legal action by the taxpayers or the county
itself. See Gattis, 349 S.W.3d at 204-05.
Again, Judge Henry possesses only one vote among the five-
member commissioners court. See TEX. GOV’T CODE § 551.001, et seq.;
TEX. LOCAL GOV’T CODE § 81.001, et seq. It is axiomatic that each
member of the commissioners court must exercise his or her own
independent judgment in voting on county matters and that Judge
Henry alone cannot act for Galveston County. See Rowan v. Pickett, 237
S.W.2d 734, 738 (Tex. Civ. App.—San Antonio 1951, no writ)
(“Furthermore, the individual commissioners have no authority to
bind the county by their separate action. This requirement is not
formal. It is substantial . . . that the members may have the benefit
of the knowledge and opinions of the other members . . . .”); cf.
Canales, 214 S.W.2d at 454 (Although commissioners are elected by
9
precinct, the “court is manifestly a unit, and is the agency of the whole
county.’”) Thus, even if Judge Henry complies with the temporary
injunction by setting the relevant issues on the commissioners court’s
agenda and personally voting as ordered by the trial court, the
remaining commissioners are not bound by the temporary injunction; of
course, each commissioner, in exercising his independent discretion to
vote in the best interest of the taxpayers, could reject the directives
placed on Judge Henry by the temporary injunction.
Moreover, the nonparty commissioners cannot be forced to comply
with such order by threat of contempt. See Ex Parte Davis, 470 S.W.2d
647, 649 (Tex. 1971) (observing that injunctions are in personam in
nature and thus not enforceable against nonparties to the action);
accord TEX. R. CIV. P. 683 (providing that an injunction “is binding only
upon the parties to the action, their officers, agents, servants,
employees, and attorneys, and those persons in active concert or
participation with them who receive actual notice of the order”). As a
matter of law, the commissioners are not the “agents” “servants” or
“employees” of the County Judge for which they can be held bound to
10
the terms of the temporary injunction. Indeed, each commissioner is an
independent elected official. TEX. CONST. art. V, § 18(b).
Judge Henry is simply without the ability to comply with the
temporary injunction. He lacks the authority—unilaterally—to do what
he is ordered to do under the temporary injunction. Because compliance
is impossible, the specter of contempt looms large over Judge Henry, a
stay of the temporary injunction should be granted. Further, 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. See In re
Sheshtawy, 154 S.W.3d 114, 124-25 (Tex. 2004) (providing that courts of
appeals “retain[] overarching power to stay any actions of the trial court
… that may interfere with its jurisdiction or the subject matter of the
appeal”).
B. The temporary injunction does not maintain the status
quo.
Although the trial court’s rationale for entering the temporary
injunction was to maintain the status quo, the temporary injunction
does not preserve the status quo. The status quo is simply not preserved
by the mandatory injunction which: (i) reinstates Ms. Quiroga to the
11
position of Director of Justice Administration, which she last held
eleven months ago, (ii) orders that the legislative branch duties
previously part of that position be excised from the duties of the
position, and (iii) orders that Ms. Quiroga be paid the same salary she
previously was paid as if the job duties and responsibilities remained
the same. See Pharaoh Oil & Gas, Inc. v. Ranchero Esperanza, Ltd., 343
S.W.3d 875, 883 (Tex. App.—El Paso 2011, no pet.) (“A temporary
mandatory injunction changes the status quo.”). Thus, the temporary
injunction issued against Judge Henry, in addition to being impossible
to comply with, does not maintain the status quo.
C. The important constitutional issues and political discord
arising from this dispute compel the issuance of a stay by
this Court.
Finally, the issues present here raise serious questions of
constitutional significance relating to the Separation of Powers Doctrine
and the relationship between the legislative branch of government
(commissioners court) and the judicial branch of government (the
Administrative District Judge of Galveston County), which compel the
issuance of stay of the subject temporary injunction. The Texas
Supreme Court has made clear that when, as in this case, a temporary
12
injunction of a trial court raises important constitutional and political
questions that have potential statewide implications, a stay of the
injunction during the pendency of the appeal is warranted. See
Republican Party of Tex. v. Dietz, 924 S.W.2d 932 (Tex. 1996) (staying
trial court’s temporary injunction that prohibited a political party from
refusing to provide a booth at the parties’ convention due to the
important constitutional and political issues presented); see also Special
Order, In re State of Texas, Cause Nos. 15-0139 (Tex. Feb 19, 2015)
(granting emergency stay motion regarding county clerk’s duty to
enforce Texas marriage laws); Special Order, In re State of Texas, Cause
Nos. 15-0135 (Tex. Feb 19, 2015) (same). Accordingly, the important
constitutional issues giving rise to this interlocutory appeal, and the
current rancor and political discord, further compel the issuance of a
stay order from this Court. 4
CONCLUSION AND REQUEST FOR RELIEF
For these reasons, Judge Henry requests this Court to issue a stay
of enforcement of the temporary injunction from which this appeal is
4 Supra FN 1.
13
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
14
CERTIFICATE OF COMPLIANCE
As required by the Texas Rules of Appellate Procedure, I certify
that I have notified or made a diligent effort to notify all parties by
expedited means (such as by telephone or fax) that this motion for
temporary relief has been or will be filed.
/s/ Edward L. Friedman
Edward L. Friedman
15
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 6th day of
June, 2015, in accordance with the Texas Rules of Civil Procedure.
/s/ Edward L. Friedman
Edward L. Friedman
16
Exhibit A