Dee Hobbs, Williamson County Attorney v. Dan A. Gattis, Williamson County Judge Terry Cook, Cynthia Long, Valerie Covey, and Larry Madsen, County Commissioners

Opinion issued October 15, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00025-CV
———————————
DEE HOBBS, WILLIAMSON COUNTY ATTORNEY, Appellant
V.
DAN A. GATTIS, WILLIAMSON COUNTY JUDGE; TERRY COOK,
CYNTHIA LONG, VALERIE COVEY, AND LARRY MADSEN, COUNTY
COMMISSIONERS, Appellees
On Appeal from the 425th Judicial District Court
Williamson County, Texas1
Trial Court Case No. 18-0903-C425
1
This appeal was transferred from the Court of Appeals for the Third District of
Texas to this Court pursuant to its docket-equalization authority. See TEX. GOV’T
CODE § 73.001 (“The supreme court may order cases transferred from one court of
appeals to another at any time that, in the opinion of the supreme court, there is
good cause for the transfer.”). We are unaware of any conflict between the
precedent of the Court of Appeals for the Third District and that of this Court on
any relevant issue. See TEX. R. APP. P. 41.3.
MEMORANDUM OPINION
This is an appeal from the trial court’s grant of a plea to the jurisdiction. Dee
Hobbs, acting in his official capacity as the Williamson County Attorney, sued the
Williamson County Judge and Williamson County Commissioners, all in their
official capacities, seeking a declaratory judgment that certain policies and orders
enacted by the Commissioners Court were void for exceeding the power of the
Commissioners Court. In particular, Hobbs challenged a policy that limited the
salary he could offer a newly hired or promoted employee.2 The appellees, the
county judge and county commissioners, filed a plea to the jurisdiction arguing that
there was no justiciable controversy, noting that Williamson County was both a
plaintiff and a defendant. The trial court granted the plea to the jurisdiction and
dismissed the entire case.
On appeal, Hobbs argues that the trial court erred because: (1) his pleading
alleged facts demonstrating the court’s jurisdiction; (2) he has standing because the
Government Code authorizes him to “fix” the salaries of his employees and there is
a justiciable controversy because the actions of the Commissioners Court invade
his core sphere of authority; and (3) the district court has supervisory jurisdiction
over the Commissioners Court.
2
Hobbs also challenged a policy that centralized information technology (IT)
support. He has not, however, challenged on appeal the trial court’s dismissal of
that claim. See TEX. R. APP. P. 38.1.
2
We affirm.
Background
Because this is an appeal from a trial court’s ruling on a plea to the
jurisdiction in which no jurisdictional evidence was provided, our recitation of the
background comes from Hobbs’s live pleading. The live pleading alleged the
following facts.
10. The Williamson County Commissioners Court (hereinafter,
“Commissioners Court” or “Defendants”) annually adopts a budget
for the fiscal operations of the County. Included in the annual budget
are line item budgets for the set salaries of each approved position in
the County departments and elected offices. These salaries are set
within a pay range assigned to each position also approved by
Commissioners Court.
11. Additionally, the Commissioners Court has adopted an
Employee Policy Manual that is periodically revised and updated. The
Employee Policy Manual includes policies regarding salary levels for
newly hired employees and promotions and transfers of current
employees.
12. The current version of the Employee Policy Manual, passed by
Commissioners Court on May 29, 2018, includes significant changes
and restraints on elected officials’ use of budgeted salary funds. For
example, the Policy limits the County Attorney’s ability to fix the
salary of a newly hired employee to only 25% above the minimum of
the pay range for that position, not to exceed the amount currently
budgeted for the position. Additionally, when a current employee is
promoted to a position with a higher pay grade, the County Attorney’s
ability to fix the salary is again limited to only 25% above the
minimum of the pay range for that position or 10% above the current
salary, whichever is greater and without exceeding the amount
currently budgeted for that position. While the Policy also provides
that requests outside of the policies can be made with approval by the
Commissioners Court; in practice, such requests are routinely denied
3
or not considered, not because the Commissioners Court did not find
sufficient reason to exceed to salary limit, but simply because it
violates the Policy.
13. Now, Commissioners Court seeks to further limit the County
Attorney’s authority to perform his core functions by significantly
lowering the 25% cap, thus continuing to restrict the County
Attorney’s ability and authority to recruit, retain, and fully utilize his
employees to accomplish his constitutional and statutory duties.
14. The current and proposed policies on salary limits affect not
only the County Attorney, but all Williamson County elected officials,
as the policies are applied to positions in all elected offices.
The appellees filed a plea to the jurisdiction and a general denial. They
argued that Hobbs had no authority to bring suit in his official capacity, and that by
doing so, Hobbs had cast Williamson County in the position of both plaintiff and
defendant. The appellees argued that they did not invade his sphere of authority
because his challenge related to a budgetary issue within the purview of the
Commissioners Court. They also argued that the employee policy did not interfere
with Hobbs’s statutory right to fix the salaries of his employees because that
statutory provision relates to proposing the salaries of employees for approval by
the Commissioners Court.
The trial court held a non-evidentiary hearing and permitted the parties to
make arguments and answer questions. The court later granted the plea, and Hobbs
appealed.
4
Analysis
I. Legal standards
A. Plea to the jurisdiction
A plea to the jurisdiction challenges a trial court’s subject matter
jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26
(Tex. 2004). A plea to the jurisdiction can challenge the plaintiff’s pleadings alone
or it can be accompanied or refuted by jurisdictional evidence. Heckman v.
Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012); Miranda, 133 S.W.3d at 227;
Gattis v. Duty, 349 S.W.3d 193, 200 (Tex. App.—Austin 2011, no pet.). Where, as
in this case, the plea to the jurisdiction does not challenge the existence of
jurisdictional facts—and no party submits jurisdictional evidence to the court—the
court’s analysis relies on the plaintiff’s pleading, which is construed “liberally,
taking all factual assertions as true.” Heckman, 369 S.W.3d at 150; see Gattis, 349
S.W.3d at 200. “Mere unsupported legal conclusions are insufficient.” Gattis, 349
S.W.3d at 200. “If the pleadings fail to allege sufficient facts to affirmatively
demonstrate the trial court’s jurisdiction but also fail to affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the
plaintiff should be afforded the opportunity to amend.” Id. (citing Miranda, 133
S.W.3d at 226–27). “If, on the other hand, the pleadings affirmatively negate the
existence of jurisdiction, then a plea to the jurisdiction may be granted without
5
allowing the plaintiff an opportunity to amend.” Id. (citing Miranda, 133 S.W.3d at
227).
On appeal, we review a trial court’s ruling on a plea to the jurisdiction de
novo. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512
(Tex. 2019) (citing Miranda, 133 S.W.3d at 226).
B. Subject matter jurisdiction
“Subject matter jurisdiction is essential to the authority of a court to decide a
case.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.
1993). “Subject matter jurisdiction requires that the party bringing the suit have
standing, that there be a live controversy between the parties, and that the case be
justiciable.” State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (citing
Tex. Ass’n of Bus., 852 S.W.2d at 443). “If the district court lacks jurisdiction, in
any of these senses, then its decision would not bind the parties.” Id. A decision
that does not bind the parties is a prohibited advisory opinion. Id.; see Valley
Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam)
(“Under article II, section 1 of the Texas Constitution, courts have no jurisdiction
to issue advisory opinions.”); Patterson v. Planned Parenthood of Hous. & Se.
Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998) (“The courts of this state are not
empowered to give advisory opinions.”); see also TEX. CONST. art. II, § 1
(separation of powers).
6
Standing “focuses on the question of who may bring an action.” Patterson,
971 S.W.2d at 442. “A court has no jurisdiction over a claim made by a plaintiff
who lacks standing to assert it.” Heckman, 369 S.W.3d at 150. Standing requires
the existence of a controversy between the parties “at every stage of the legal
proceedings,” Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001), and “a justiciable
injury that gives rise to a real controversy which judicial action can resolve.” Fin.
Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 591 (Tex. 2013) (citing Tex.
Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 517–18 (Tex. 1995)); see
TEX. CONST. art. I, § 13 (“All courts shall be open, and every person for an injury
done him, in his lands, goods, person or reputation, shall have remedy by due
course of law.”).
The requirement that there be a live controversy requires a court to consider
whether the claim alleged “uncertain or contingent future events that may not
occur as anticipated or may not occur at all.” Patel v. Tex. Dep’t of Licensing &
Regulation, 469 S.W.3d 69, 78 (Tex. 2015). A claim alleging only uncertain or
contingent future events is not justiciable because the judicial relief sought will not
resolve an actual controversy. See Heckman, 369 S.W.3d at 147; Gomez, 891
S.W.2d at 245.
7
C. Declaratory judgment action
“A declaratory judgment is appropriate only if a justiciable controversy
exists as to the rights and status of the parties and the controversy will be resolved
by the declaration sought.” Bexar Metro. Water Dist. v. City of Bulverde, 234
S.W.3d 126, 130 (Tex. App.—Austin 2007, no pet.); see Brooks v. Northglen
Ass’n, 141 S.W.3d 158, 163–64 (Tex. 2004); Bonham State Bank v. Beadle, 907
S.W.2d 465, 467 (Tex. 1995). “A declaratory judgment action does not vest a court
with jurisdiction ‘to pass upon hypothetical or contingent situations, or to
determine questions not then essential to the decision of an actual controversy,
although such questions may in the future require adjudication.’” Bexar Metro.
Water Dist., 234 S.W.3d at 130 (quoting Firemen’s Ins. Co. v. Burch, 442 S.W.2d
331, 333 (Tex. 1968)).
II. Hobbs’s live pleading did not allege a justiciable claim
In his live pleading, Hobbs alleged that the Williamson County
Commissioners Court exceeded its authority by enacting policies and issuing
orders that limited and restricted his use, as the county attorney, of funds that had
been approved in the County budget. He further alleged that the Commissioners
Court interfered with his ability to carry out his statutorily mandated duties and
usurped his statutory authority to “fix the salaries” of his employees.
8
A. Authority and role of the commissioners court
A commissioners court is a county’s principal governing body, with
legislative, executive, administrative, and judicial functions. Comm’rs Ct. v. Agan,
940 S.W.2d 77, 79 (Tex. 1997). The Texas Constitution provides that a
commissioners court “shall exercise such powers and jurisdiction over all county
business, as is conferred by this Constitution and the laws of the State, or as may
be hereafter prescribed.” TEX. CONST. art. V, § 18(b). “In the exercise of its powers
and jurisdiction over county business, [a] [c]ounty [c]ommissioners [c]ourt has
implied authority to exercise broad discretion to accomplish the purposes
intended.” Griffin v. Birkman, 266 S.W.3d 189, 194–95 (Tex. App.—Austin 2008,
pet. denied). “Constitutional and statutory provisions conferring authority upon [a]
[c]ommissioners [c]ourt should be broadly and liberally construed to ascertain the
scope of the authority granted either expressly or by necessary implication.” Id. A
commissioners court also has “specific statutory authority to oversee the fiscal
operation of the county by approving and authorizing a budget.” Id. (citing TEX.
LOC. GOV’T CODE §§ 111.001–.095).
A commissioners court has broad discretion on budgetary decisions, and
such decisions are ordinarily protected from judicial scrutiny by the separation of
powers doctrine. See TEX. CONST. art. II, § 1. “The [budget] process is political. It
combines inextricably the two legislative powers of ‘taxation’ and ‘appropriation,’
9
the latter being a distribution and setting aside of parts of the total available
revenue among the various government functions, operations, and programs.”
Comm’rs Ct. v. Crim. Dist. Atty, 690 S.W.2d 932, 934 (Tex. App.—Austin 1985,
writ ref’d n.r.e.).
While a commissioners court enjoys broad discretion regarding budgetary
concerns, its power is not unlimited; it is subject to certain review powers of the
district court. Griffin, 266 S.W.3d at 195. In particular, a commissioners court and
county officers may not interfere with or usurp the duties delegated by the Texas
Constitution and by statutes to independent county officials and their employees.
Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961); Harris Cty. v.
Coats, No. 14-17-00732-CV, 2020 WL 581184, at *8 (Tex. App.—Houston [14th
Dist.] Feb. 6, 2020, no pet.); Griffin, 266 S.W.3d at 195.
B. Hobbs’s live pleading did not demonstrate the existence of a live
controversy or standing.
1. No live controversy
In his live pleading, Hobbs sought a declaration that the Commissioners
Court’s orders and policies restricting the use of budgeted salary funds when the
county attorney hires a new employee or transfers or promotes an existing one
were void as exceeding its authority. The live pleading described the policy
expressed in the Employee Policy Manual. Hobbs did not allege that any particular
dispute existed between him and the appellees. Instead, he alleged that the policies
10
“hamper[ed]” his ability “to manage and utilize the salary funds that have been
previously approved and budgeted” “to attract, employ, and retain qualified
individuals needed for these positions.” The live pleading did not include any
factual allegations that the employees or potential employees who would be willing
to accept jobs possibly on the lower end of the stated salary range were
incompetent to carry out the assigned or delegated functions of the county
attorney’s office. There were also no factual allegations that potential employees
who were competent to do the work were unwilling to accept the jobs when
offered a salary near the lower end of the salary range. And there were no factual
allegations indicating that the county attorney has been unable to perform required
duties because desired candidates refused the offer to work at the lower end of the
pay scale and the Commissioners Court rejected a request to offer a salary in the
budgeted amount. Instead, the live pleading alleged that the policies could create a
problem or hamper the effectiveness of the county attorney at a hypothetical future
time. This is an allegation of an uncertain or contingent future controversy, not an
allegation of a live controversy. See Heckman, 369 S.W.3d at 147; Gomez, 891
S.W.2d at 245.
2. No standing
In addition to not alleging a live controversy, the pleading does not allege
facts showing that, in his official capacity, Hobbs suffered a distinct and
11
individuated injury. See Gattis, 349 S.W.3d at 202. Hobbs has argued that the
policy limiting employee salaries would prevent him from hiring competent,
qualified employees to help him fulfill his statutory duties. When acting in his
official capacity as the county attorney, Hobbs represents Williamson County.
Therefore, to the extent that an injury as alleged could be shown, the injured party
would be the county itself, not Hobbs. See Tex. A & M Univ. Sys. v. Koseoglu, 233
S.W.3d 835, 844 (Tex. 2007) (suits against a governmental official in his official
capacity are suits against the governmental entity against whom liability is sought
not against the official personally). Hobbs has not shown that he, as county
attorney, “has or imminently will suffer an invasion of some legally cognizable
interest that is sufficiently unique” to him and that will ensure he has “a sufficient
personal stake in the controversy so that the lawsuit would not yield a mere
advisory opinion or draw the judiciary into generalized policy disputes that are the
province of other branches.” Stop the Ordinances Please v. City of New Braunfels,
306 S.W.3d 919, 927 (Tex. App.—Austin 2010, no pet.).
To the contrary, Hobbs acknowledged in his pleading that the county
attorney has no individual stake differing from that of other Williamson County
elected officials. Accordingly, we hold that Hobbs, acting in his official capacity,
lacked standing to seek a declaratory judgment as pleaded in this case. Because
12
there is no live controversy and no standing, this case is not justiciable. See
Norwood, 418 S.W.3d at 590–91; Garcia, 893 S.W.2d at 517–18.
III. The district court does not have supervisory jurisdiction over this case.
Hobbs also argues that he has invoked the district court’s supervisory
jurisdiction over the Commissioners Court. The Texas Constitution provides: “The
District Court shall have appellate jurisdiction and general supervisory control over
the County Commissioners Court, with such exceptions and under such regulations
as may be prescribed by law.” TEX. CONST. art. V, § 8; see Agan, 940 S.W.2d at
80.
“A party can invoke the district court’s constitutional supervisory control
over a [c]ommissioners [c]ourt judgment only when the [c]ommissioners [c]ourt
acts beyond its jurisdiction or clearly abuses the discretion conferred upon the
[c]ommissioners [c]ourt by law.” Agan, 940 S.W.2d at 80; accord Ector Cty. v.
Stringer, 843 S.W.2d 477, 479 (Tex. 1992). “If [a] [c]ommissioners [c]ourt acts
illegally, unreasonably, or arbitrarily, a district court may so adjudge.” Agan, 940
S.W.2d at 80. However, a district court may not substitute its discretion for that of
a commissioners court. Id.; Ector Cty., 843 S.W.2d at 479. A commissioners court
can act illegally, unreasonably, or arbitrarily by acting contrary to a legal
delegation of power or limitation on its own powers or by exercising powers that
have been delegated to another county officer by the Texas Constitution or by
13
statute. See Pritchard & Abbott, 350 S.W.2d at 335; Gattis, 349 S.W.3d at 198–
203; Griffin, 266 S.W.3d at 197. Hobbs argues that the Commissioners Court both
invaded his sphere of authority and exceeded its own authority.
1. The pleading does not establish that the challenged policy and
orders invade Hobbs’s sphere of authority.
Although Hobbs acknowledges the Commissioners Court’s power to make
the county’s budget, he contends that his sphere of authority includes the right to
set his employees’ salaries. Section 41.106 of the Texas Government Code
provides: “A prosecuting attorney shall fix the salaries of his assistant prosecuting
attorneys, investigators, secretaries, and other office personnel, subject to the
approval of the commissioners court of the county or counties composing the
district.” TEX. GOV’T CODE § 41.106(a). However, analyzing an earlier and
identical statutory provision, the Austin Court of Appeals has held that the
prosecuting attorney’s authority to “fix the salaries” of his employees means only
that he has the power to determine the salaries of his employees for inclusion in the
county’s proposed budget, which may be revised by a commissioners court before
approval. See Comm’rs Ct., 690 S.W.2d at 938–39. The court of appeals explained
that viewing the duty to “fix” salaries as conferring unilateral authority to the
prosecuting attorney would render this expenditure “not realistically subject to the
public debate, the political-adjustment process, the public interest evaluation, the
taxpayer-interest consideration, and the mandatory correlation of our county
14
revenue and expenditure estimates that comprise the legislative process.”3 Id. at
938.
We conclude that, considering the broad budgetary discretion afforded to the
Commissioners Court and the limited authority delegated to the prosecuting
attorney to fix his employees’ salaries, the pleading does not allege an interference
with the county attorney’s authority sufficient to invoke supervisory jurisdiction.
See id. at 934.
2. The pleading does not demonstrate that the Commissioners Court
exceeded its authority by implicitly amending the budget in a
manner contrary to law.
Hobbs also argues that he invoked the district court’s supervisory
jurisdiction by pleading that the Commissioners Court’s policies effectively
amended the annual budget.
3
The court of appeals explained why viewing the authority to fix salaries as
unilaterally belonging to a prosecuting attorney would be “prejudicial to the public
interest.” The court of appeals opined:
Of what use are public hearings, public debate, and so forth if the
amounts “fixed” by the prosecuting attorney are not open to change
by the only body authorized to raise the revenue to pay them and
make the other legislative determinations referred to above? If they
are not open to change, there is no practical reason for them to be
discussed or subjected to the political and legislative process. They
are outside such process and the result of dictation by a single officer
of the executive branch, an anomaly in any governmental budget-
making process.
Comm’rs Ct. v. Crim. Dist. Atty., 690 S.W.2d 932, 938 (Tex. App.—Austin 1985,
writ ref’d n.r.e.).
15
The Local Government Code authorizes a commissioners court to adopt an
annual county budget. See TEX. LOCAL GOV’T CODE §§ 111.001–.096. When
adopting a budget, a commissioners court “shall set the compensation, office and
travel expenses, and all other allowances for county and precinct officers and
employees who are paid wholly from county funds.” Id. § 152.011; see generally
id. §§ 152.011–.907 (Amount of Compensation, Expenses, and Allowances of
County Officers and Employees). “After final approval of the budget, a
commissioners court may spend county funds only in strict compliance with the
budget, except in an emergency.” Id. § 111.010. However, a commissioners court
is nevertheless authorized to make “changes in the budget for county purposes.”4
Id. § 111.011.
4
Section 111.011 has been cited only once. See Bexar Cty. v. Hatley, 150 S.W.2d
980 (Tex. 1941). In Hatley, the commissioners court adopted a budget with sums
for voting by hand marked and counted ballots. Id. at 981. The commissioners
court later amended its budget to allow the rental of voting machines with an
option to purchase. Id. at 982–84. A group of taxpayers sued to for an injunction to
restrain compliance with the rental contract. Id. at 984. The trial court denied the
injunction and the court of appeals reversed. Id. at 985.
On appeal, the Texas Supreme Court took up the question of whether the
commissioners court proceeded lawfully in amending its original budget. Id. at
987. Statutes in effect at the time mirrored those in effect now and provided that
once the budget has been adopted by a commissioners court, expenditures were to
be made “in strict compliance with the budget as adopted” except in the case of
emergency expenditures. Id. at 986. Likewise, the statute provided that nothing
within it prevented a commissioners court from “making changes in the budget for
county purposes.” Id.
16
 In this case, Hobbs argues that the employee policies enacted by the
Commissioners Court effectively amended the budget in the absence of an
emergency and in contravention of the regular budget adoption and amendment
process. He relies on a letter opinion from the attorney general, which asked
whether a county official has the authority to close his office on account of bad
weather or other extenuating circumstances, and if so, whether the county treasurer
or auditor could withhold payment of employees salary due to the closure of the
office. Tex. Att’y Gen. Op. No. JC-0131 (1999). In that letter opinion, the attorney
general concluded that the authority of a commissioners court to set county
compensation did not include the authority to set the office hours for other county
officials and their employees. Id. However, the attorney general also concluded
that “once the salaries of county officers and employees are set, the salaries may
not be reduced, outside of the regular budget adoption and amendment process, to
account for office closures.” Id.
Unlike the question posed in the attorney general’s letter opinion, the
challenged policies here did not reduce the salaries of county officers and
The Supreme Court held that the commissioners court did not act unlawfully by
amending its budget because the statutes provided “some latitude” to make the
budget plan workable, the subject matter of the amendment (elections) was “an
absolute public necessity,” and the amendment did not require the expenditure of
funds not already budgeted for elections. Id. at 987. Thus, the Supreme Court
reversed the court of appeals and affirmed the trial court’s denial of a temporary
injunction. Id. at 989.
17
employees in response to the county attorney’s exercise of discretion in the
management of his office’s functions. Moreover, the challenged policies did not
actually amend the budget. Because the policy permits exceptions to the salary cap
with approval by the Commissioners Court, the challenged policy does not
necessarily reduce any employee salary as compared to the amount adopted in the
budget.
We conclude that the pleading does not allege a violation of the statutory
budgeting process sufficient to invoke the district court’s supervisory jurisdiction.
See Comm’rs Ct., 690 S.W.2d at 934.
Conclusion
Having concluded that Hobbs lacks standing, that the pleading does not
allege a justiciable injury, and that the facts alleged in the live pleading do not
invoke the trial court’s supervisory jurisdiction, we affirm the judgment of the trial
court.
Peter Kelly
Justice
Panel consists of Justices Kelly, Goodman, and Countiss.
18