                                                                              ACCEPTED
                                                                         01-14-00820-CV
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                   1/29/2015 10:21:34 AM
                                                                     CHRISTOPHER PRINE
                                                                                  CLERK

                      No. 01-14-00820-CV
_____________________________________________________________
                                                      RECEIVED IN
                                                1st COURT OF APPEALS
                            IN THE                  HOUSTON, TEXAS
                  FIRST COURT OF APPEALS        1/29/2015 10:21:34 AM
                       at Houston, Texas        CHRISTOPHER A. PRINE
                                                         Clerk
_____________________________________________________________

       IN RE GALVESTON COUNTY JUDGE MARK HENRY,
    GALVESTON COUNTY COMMISSIONER RYAN DENNARD,
    GALVESTON COUNTY COMMISSIONER KEVIN O’BRIEN,
   GALVESTON COUNTY COMMISSIONER STEPHEN HOLMES,
    AND GALVESTON COUNTY COMMISSIONER KEN CLARK,
            IN THEIR OFFICIAL CAPACITIES AS THE
        GALVESTON COUNTY COMMISSIONERS COURT,
                           Relators
                              v.
     THE HONORABLE LONNIE COX, 56th DISTRICT COURT
                          Respondent
_____________________________________________________________

               From the 56th Judicial District Court of
                     Galveston County, Texas
_____________________________________________________________

     AMICUS CURIAE BRIEF IN SUPPORT OF RELATORS
_____________________________________________________________

                        John B. Dahill
                        State Bar No. 05310430
                        TEXAS CONFERENCE OF URBAN COUNTIES
                        500 W. 13th Street
                        Austin, Texas 78701
                        (512) 476-6174 telephone
                        (512) 478-5122 facsimile
                                                 Table of Contents



Table of Contents .......................................................................................................2

Table of Authorities ...................................................................................................3

Identity and Interest of Amicus Curiae ......................................................................5

Argument....................................................................................................................5

   I.    Respondent Had No Jurisdiction to Issue Ex Parte Order ..............................5

   II. Respondent’s Ex Parte Order Issued Sua Sponte Ignored Due Process .........7

   III. Respondent’s Ex Parte Order Not Supported by Statutory Authority ............9

Prayer .......................................................................................................................12




                                                          Page -2-
                                         Table of Authorities

Cases

Commissioners Court of Lubbock County v. Martin,
  471 S.W.2d 100 (Tex. Civ. App.—Amarillo 1971, writ ref'd n.r.e.) ..................... 7

Commissioners Court of Titus County v. Agan,
  940 S.W.2d 77 (Tex. 1997).....................................................................................5

Dist. Judges of 188th Judicial Dist. v. County Judge and Commissioners
Court for Gregg County, Tex.,
   657 S.W.2d 908 (Tex. App.—Texarkana 1983, writ ref'd n.r.e.) ....................... 7, 8

Ector County v. Stringer,
   843 S.W.2d 477 (Tex. 1992) ................................................................................. 6

Hooten v. Enriquez,
  863 S.W.2d 522, 529 (Tex. App. 1993) .............................................................. 10

In re El Paso County Com'rs Court,
    281 S.W.3d 16 (Tex. App. – El Paso 2005, no pet.) ...................................... 6, 7, 8

Matter of El Paso County Courthouse,
  765 S.W.2d 876 (Tex. App.—El Paso 1989, no writ) ............................................ 8

Mays v. Fifth Court of Appeals,
  755 S.W.2d 78 (Tex. 1988)................................................................................. 6, 7

State v. Johnson,
   52 S.W.2d 110 (Tex. Civ. App.—San Antonio 1932, writ dism'd w.o.j.) .......... 11

Vondy v. Commissioners Court of Uvalde County,
  620 S.W.2d 104 (Tex. 1981) .................................................................................. 7


Attorney General Opinions

Tex. Att'y Gen. Op. LO-96-003 (1996) .................................................................... 10


                                                  Page -3-
Statutes

Tex. Const. art. V, § 8 ........................................................................................... 5, 6

Tex. Gov't Code Ann. § 24.020 ............................................................................ 5, 6

Tex. Gov't Code Ann. § 74.101, Government Code................................................. 9

Tex. Gov't Code Ann. § 74.103, Government Code............................................ 9, 10

Tex. Loc. Gov't Code §§ 151.001 – 151.903 ........................................................... 10




                                                      Page -4-
                              Identity and Interest of Amicus Curiae

           The Texas Conference of Urban Counties (“CUC”) is a Texas nonprofit

organization composed of 37 member counties, representing approximately 80% of

the population of Texas. CUC serves its member counties through education

endeavors and through representation before state and federal governmental

entities. CUC and its members have a strong interest in matters affecting the

authority over the creation of county staff positions and the fiscal impact of those

positions, and in the appropriate manner and means by which decisions of a county

commissioners court may be reviewed by a state district court. 1

                                                  Argument

             I.       Respondent Had No Jurisdiction to Issue Ex Parte Order
           The Texas Constitution provides that “[t]he 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 also Tex. Gov't Code Ann. §

24.020 (Vernon).              A district court's constitutional supervisory control over a

commissioners court’s judgment can generally only be invoked when the

commissioners court acts beyond its jurisdiction or clearly abuses the discretion

conferred upon the commissioners court by law. Commissioners Court of Titus


1
    The author of this brief has received no fee for its preparation.

                                                     Page -5-
County v. Agan, 940 S.W.2d 77, 80 (Tex. 1997); Ector County v. Stringer, 843

S.W.2d 477, 479 (Tex. 1992); In re El Paso County Com'rs Court, 281 S.W.3d 16,

24 (Tex. App. – El Paso 2005, no pet.).

      Relators have provided this Court with a long list of cases dating back

almost 90 years holding that a lawsuit must be filed in the district court in order to

invoke the district court’s supervisory control over the commissioners court. In a

very clear expression of this principle, the El Paso Court of Appeals has held that a

district court cannot invoke its own jurisdiction to exercise supervisory control

over the commissioners court under Article V, Section 8 of the Texas Constitution

or Section 24.020 of the Texas Government Code. In re El Paso County Com'rs

Court, 281 S.W.3d at 26.

      Respondent cites Mays v. Fifth Court of Appeals, 755 S.W.2d 78 (Tex.

1988) to support his claim that a lawsuit was not required to invoke the district

court’s supervisory jurisdiction over the Commissioners Court.             [Actually,

Respondent primarily cites a concurring opinion in Mays, and not the majority

holding.] The Supreme Court held in Mays that “[t]he performance of a clear

statutory duty which is ministerial and nondiscretionary may be directed by the

District Court without notice and hearing in the absence of a statutory requirement

to the contrary.” Quite simply, Mays is not applicable to this matter. Respondent

can cite no statutory duty that was ministerial and nondiscretionary violated by the


                                       Page -6-
Galveston County Commissioners Court. The matter before this Court is far more

similar to the facts in In re El Paso County Com'rs Court than those in Mays, the

former being decided 7 years after Mays.

       In the instant matter, no lawsuit had been filed vesting the district court with

supervisory jurisdiction over the Galveston County Commissioners Court before

the issuance of Respondent’s ex parte order. Therefore, Respondent’s order was

not a valid exercise of the district court’s supervisory control of the Commissioners

Court. If this Court were to decide otherwise, the judiciary in Texas would be “on

the perilous road to potentially second-guessing every executive or administrative

decision of a county commissioners court.” See In re El Paso County Com'rs

Court, 281 S.W.3d at 27.

 II.    Respondent’s Ex Parte Order Issued Sua Sponte Ignored Due Process
       Texas Courts have recognized that the judicial branch possesses inherent

power to require the legislative and executive branches to provide essential staffing

and facilities for it to properly perform its judicial functions. See Dist. Judges of

188th Judicial Dist. v. County Judge and Commissioners Court for Gregg County,

Tex., 657 S.W.2d 908 (Tex. App.—Texarkana 1983, writ ref'd n.r.e.); Vondy v.

Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981);

Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100, 110 (Tex.

Civ. App.—Amarillo 1971, writ ref'd n.r.e.). However, the inherent power to


                                       Page -7-
require such staffing is not unlimited.    Dist. Judges of 188th Judicial Dist., 657

S.W.2d at 909 (“The [inherent] power is not unlimited…especially in the area of

government finances.”). It does not excuse judicial officers from the burden of

showing that compelled staffing is essential for the holding of court, the efficient

administration of justice, or the performance of a court’s constitutional and

statutory duties. See Dist. Judges of 188th Judicial Dist., 657 S.W.2d at 909 - 910

(where judges failed to establish the required essentiality, there was no basis for

exercise of judges' inherent power to compel county judge and commissioners'

court to fund increased salaries for court personnel and to implement a court

administration system for the county); See also In re El Paso County Com'rs

Court, 281 S.W.3d 16, 28 (“[S]ound public policy considerations demand that

when the judiciary seeks to use its inherent power to overcome the legislative

prerogative, it must be held to a high standard and must assume the burden of

showing that the funds sought to be compelled are essential for the holding of

court, the efficient administration of justice, or the performance of its constitutional

and statutory duties.)    The court generally must afford procedural due process

including notice and hearing. See Matter of El Paso County Courthouse, 765

S.W.2d 876, 882 (Tex. App.—El Paso 1989, no writ).                    A court’s own

administrative findings cannot be enforced unless those findings are established by

a fact finding process. Dist. Judges of 188th Judicial Dist., 657 S.W.2d at 910.


                                        Page -8-
         It is undisputed in this case that the Respondent issued an ex parte order sua

sponte. Respondent now defends such order with an assertion, in part, of inherent

power. But Respondent wholly overlooks the due process requirements which

must accompany the judiciary’s exercise of such inherent power.

  III.     Respondent’s Ex Parte Order Not Supported by Statutory Authority
         The issue before this Court is the validity of Respondent’s ex parte order to

the Galveston County Commissioners Court.             For the reasons stated above,

Respondent’s order is void, without regard to whatever statutory authority may

vest district courts with the authority to create and supervise positions within

county government. But lest some on this Court believe Respondent’s actions

were legitimate to protect statutory authority over the Director of the Galveston

County Justice Administration Department, a review of relevant Texas statutes is

warranted.

         Texas statutes permit judges to create certain positions – and, in some

instances, obligate taxpayers to fund those positions.         Such is the case, for

example, for court coordinators under § 74.101, Government Code (“The local

administrative judge and each district or statutory county court judge may establish

a court coordinator system and appoint a court coordinator for his court to improve

justice and expedite the processing of cases through the courts.”); court staff and

support personnel under § 74.103 (“The courts may appoint appropriate staff and


                                         Page -9-
support personnel according to the needs in each county.”); and court

administrators in certain specific counties under Chapter 75, Government Code

(which does not include any provision applicable to Galveston County). [Courts

may also appoint court reporters, but those statutes clearly are not applicable in this

matter.] There is no statutory authority for the district and statutory county courts

in Galveston County to create the positions that comprise the Galveston County

Justice Administration Department.

      Chapter 151 of the Local Government Code generally regulates the process

by which elected district, county and precinct officers may appoint deputies,

assistants and clerks and other employees that are required in the performance of

the officer’s duties. See Tex. Loc. Gov't Code §§ 151.001 – 151.903. The process

for elected officials to request approval for hiring employees should coincide with

the annual budget setting process. See Hooten v. Enriquez, 863 S.W.2d 522, 529

(Tex. App. 1993); Tex. Att'y Gen. Op. LO-96-003 (1996) (“Thus, subsection

74.104(a) authorizes the judges to recommend salaries for the court coordinators,

and their recommendations are subject to change during the county budgeting

process. We also believe that the courts' power to appoint staff and support

personnel ‘according to the needs in each county,’ Gov't Code § 74.103, is subject

to the commissioners court's approval of the position and compensation pursuant to

section 151.901 of the Local Government Code.”). Failure to comply with Chapter


                                       Page -10-
151 may render personnel appointments void and subject the purported appointee

to removal. See State v. Johnson, 52 S.W.2d 110, 111 (Tex. Civ. App.—San

Antonio 1932, writ dism'd w.o.j.); 35 Tex. Prac., County And Special District Law

§ 7.16 (2d ed.).

      The procedures set forth in Chapter 151, Local Government Code, provide

order in the establishment of county financial obligations vis-à-vis personnel for

independent elected district, county, and precinct offices.      A county and its

taxpayers should not be subject to the random desires of officials for staffing their

offices outside of the process found in Chapter 151.         Absent a showing of

compliance with Chapter 151 and the existence of authority to appoint the Director

of the Galveston County Justice Administration Department, Respondent had no

authority under Texas statutes to assert any control or supervision over the

position. A review of Respondent’s Reply to Petition for Mandamus reveals no

assertion that Respondent, his predecessors, or other members of the judiciary in

Galveston County ever complied with Chapter 151 or its predecessor statute with

respect to the Director of the Galveston County Justice Administration

Department.

      To the contrary, Relators have produced evidence to show that the Galveston

County Commissioners Court created the county’s personal bond office in 1973,

and created the county’s collection improvement program in 2005. In the case of


                                      Page -11-
the former, the statute in 1973 permitted creation of a personal bond office by

either a county or by a judicial district. In the case of the latter, Article 103.0033,

Texas Code of Criminal Procedure, requires a county – not the judiciary – to

establish a collection improvement program. The employees of both of those

offices reported to the Galveston County Commissioners Court, and were later

placed within the Galveston County Justice Administration Department.

                                       Prayer

      For the reasons stated in this Amicus Curiae Brief, the Texas Conference of

Urban Counties requests that the Court issue a writ of mandamus directing Judge

Lonnie Cox, presiding judge of the 56th Judicial District Court of Galveston

County and Administrative Judge of the Galveston County District Courts, to

vacate his ex parte Order of September 24, 2014.

                                 Respectfully submitted,

                                 /s/ John B. Dahill
                                 John B. Dahill
                                 State Bar No. 05310430

                                 TEXAS CONFERENCE OF URBAN COUNTIES
                                 500 W. 13th Street
                                 Austin, Texas 78701
                                 (512) 476-6174 telephone
                                 (512) 478-5122 facsimile




                                       Page -12-
                               Certificate of Service

      I certify that a copy of this Amicus Curiae Brief in Support of Relators was

served via certified mail, return receipt requested, facsimile, and/or electronically

on this 29th day of January 2015, to the following:


James P. Allison                         Andrew Mytelka
j.allison@allison-bass.com               amytelka@greerherz.com
J. Eric Magee                            Angie Olalde
e.magee@allison-bass.com                 aolalde@greerherz.com
Phillip Ledbetter                        Greer, Herz & Adams, L.L.P.
p.ledbetter@allison-bass.com             One Moody Plaza, 18th Floor
ALLISON BASS &MAGEE, L.L.P.              Galveston, Texas 77550
A.O. Watson House                        (409) 866-
402 W. 12th Street
Austin, TX 78701                         Amici Curiae
(512) 482-0701 telephone
(512) 480-0902 facsimile

Attorneys for Relators


Mark W. Stevens
markwandstev@sbcglobal.net
Attorney at Law
P.O. Box 8118
Galveston, TX 77553
(409) 765-6306 telephone
(409) 765-6469 facsimile

Attorney for Respondent


                                       /s/ John B. Dahill
                                       John B. Dahill



                                      Page -13-
                     CERTIFICATE OF COMPLIANCE

I certify that this computer-generated Amicus Curiae Brief in Support of Relators
contains 2,306 words and complies with TEX. R. APP. P. 9.4.

                                            /s/ John B. Dahill
                                            John B. Dahill




                                    Page -14-
