                                                                                              ACCEPTED
                                                                                          01-15-00583-CV
                                                                               FIRST COURT OF APPEALS
                                                                                       HOUSTON, TEXAS
                                                                                     7/22/2015 4:08:24 PM
                                                                                    CHRISTOPHER PRINE
                                                                                                   CLERK


                          No. 01-15-00583-CV
                __________________________________________
                                                          FILED IN
                                                   1st COURT OF APPEALS
                  IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS
                        AT HOUSTON, TEXAS          7/22/2015 4:08:24 PM
                                                   CHRISTOPHER A. PRINE
               _______________________________________     Clerk

               THE HONORABLE MARK HENRY, COUNTY JUDGE
                        OF GALVESTON COUNTY,
                                     Appellant,
                                         v.
                         THE HONORABLE LONNIE COX,
                                     Appellee.
               _____________________________________________________

    On Interlocutory Appeal from the 56th District Court, Galveston County, Texas
     __________________________________________________________

APPELLANT’S CONSOLIDATED RESPONSE TO APPELLEE’S
 MOTIONS FOR EMERGENCY RELIEF, FOR CONTEMPT,
   AND TO ENFORCE THE TEMPORARY INJUNCTION
    _______________________________________________________________

TO THE HONORABLE FIRST COURT OF APPEALS:

      Appellant, The Honorable Mark Henry, County Judge of Galveston County,

files this Consolidated Response to Appellee’s Motions for Emergency Relief, for

Contempt, and for Enforcement of the Temporary Injunction (and also the

supplementary motion to enforce), and would show the Court as follows:

                                   Background
      1.    The above-captioned matter is an interlocutory appeal of a temporary

injunction order. (CR. 334.); TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4). The
Honorable Lonnie Cox in his official capacity as Judge of the 56th District Court of

Galveston County brought the underlying suit against The Honorable Mark Henry,

County Judge of Galveston County, seeking to reinstate the employment of Bonnie

Quiroga as Director of the Galveston County Justice Administration. (CR. 9, 247.)

        2.   Ms. Quiroga was appointed to that position in 2000 by the Galveston

County Commissioner’s Court and it terminated her employment on July 24, 2014.

        3.   On July 6, 2015, Visiting Judge Sharolyn Wood signed a temporary

injunction order against County Judge Mark Henry requiring among other things

“the reinstatement of Bonnie Quiroga to her position as Galveston County Justice

Administrator” and the payment “by the issuance of the appropriate check or direct

deposit to Ms. Quiroga her same salary as was paid prior to July 24, 2014.” (CR.

337.)

        4.   County Judge Mark Henry immediately perfected his appeal of the

temporary injunction order by filing a Notice of Interlocutory Appeal. (CR. 334.);

TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4).

        5.   County Judge Mark Henry also perfected an additional interlocutory

appeal from the denial of his plea to the jurisdiction. TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(8); (CR. 231.)




                                         2
                                Response Argument

        6.    The issue presented by Appellee’s motions is the effect that County

Judge Mark Henry’s Notice of Interlocutory Appeal had on the temporary

injunction order. According to Appellee, County Judge Mark Henry was required

to comply with the temporary injunction order after filing his notice of appeal and

that by not doing so he should be subject to contempt and enforcement

proceedings. The settled law provides otherwise.

     When County Judge Mark Henry perfected his interlocutory appeal of the
    temporary injunction order that suspended the temporary injunction during
                          the appeal as a matter of law.
        7.    As a general rule, when a county official files a notice of appeal in his

or her official capacity that automatically supersedes any judgment; and that

suspension remains in effect until all appellate rights are exhausted. In re Long,

984 S.W.2d 623, 625-26 (Tex. 1999) (citing TEX. CIV. PRAC. & REM. CODE §

6.001(b)(4)). This rule applies to an appeal of a permanent injunction (which is a

final judgment), and to an interlocutory appeal of a temporary injunction order by a

county official.1 See Id. at 625; City of San Antonio v. Clark, 554 S.W. 732, 733

(Tex. Civ. App. – San Antonio 1977, no writ) (cited with approval by the supreme

court in In re Long, 984 S.W.2d at 625-26)); City of Dallas v. North by West

Entertainment, Ltd., 24 S.W.3d 917, 918-19 (Tex. App. – Dallas 2000, no pet.);

1
    Elizondo v. Williams, 643 S.W.3d 765, 767 (Tex. App. – San Antonio 1982, no writ)
(recognizing a permanent injunction is a final judgment.).
                                           3
City of Galveston v. Humphrey, 2001 WL 204765 at *5-6 (Tex. App. – Houston

[1st Dist.] 2001, no pet.).

       8.     When an interlocutory appeal of a temporary injunction is involved,

like here, Texas Rule of Appellate Procedure 29 controls the inquiry since it

specifically governs interlocutory appeals. City of Dallas, 24 S.W.3d at 918-19.

Rule 29.1(b) provides that “[p]erfecting an appeal from an order granting

interlocutory relief does not suspend the order appealed from unless…the appellant

is entitled to supersede the order without security by filing a notice of appeal.”

TEX. R. APP. P. 29.1(b). Because County Judge Mark Henry as a county official

can automatically supersede any judgment by filing a notice of appeal, In re Long,

984 S.W.2d at 625-26; TEX. CIV. PRAC. & REM. CODE § 6.001(b)(4), his perfection

of this interlocutory appeal of the temporary injunction order automatically

suspended the temporary injunction during the course of the appeal pursuant to

Rule 29.1(b) as a matter of law. This is the teaching of City of Dallas. See 24

S.W.3d at 918-19.

 County Judge Mark Henry is not required to obey the injunction during the
 course of this interlocutory appeal and is not in contempt of either the trial
                              court or this Court.
       9.     This Court made the same holding as City of Dallas in City of

Galveston v. Humphrey, 2001 WL 204765 at *5-6 (Tex. App. – Houston [1st Dist.]

2001, no pet.).      That case involved an interlocutory appeal of a temporary


                                        4
injunction against the city to restore a city employee to his former position. The

employee asked this Court to hold the City of Galveston in contempt because it did

not comply with the temporary injunction during the course of the appeal. Id.

Writing for the panel, Justice Jennings rejected the employee’s request for

contempt against the city and explained:

            The city was permitted by statute to bring an interlocutory
            appeal of the temporary injunction. TEX. CIV. PRAC. & REM.
            CODE ANN. § 51.014(a)(4) (Vernon Supp. 2011). In addition,
            the city could perfect the appeal simply by filing a notice of
            appeal; it was not required to give a supersedeas bond. TEX.
            CIV. PRAC. & REM. CODE § 6.002(b) (Vernon Supp. 2001).
            When the city perfected its appeal by filing its notice of appeal,
            the temporary injunction was suspended under the Rules of
            Appellate Procedure. See City of San Antonio v. Clark, 554
            S.W. 732, 733 (Tex. Civ. App. – San Antonio 1977, no writ);
            TEX. R. APP. P. 29.1(b). Thus, the city was not required to obey
            the injunction and was not in contempt of either the trial court
            or this Court.

Id. at *6 (citation omitted.). This same reasoning applies here to County Judge

Mark Henry.

      10.    Like in City of Galveston, when County Judge Mark Henry perfected

his interlocutory appeal of the temporary injunction order, the temporary injunction

was automatically suspended under the Rules of Appellate Procedure. TEX. R. APP.

P. 29.1(b); TEX. CIV. PRAC. & REM. CODE § 6.001(b)(4). Accordingly, as this

Court explained in City of Galveston, County Judge Mark Henry is not required to

obey the temporary injunction during the course of this appeal and is not in


                                           5
contempt of either the trial court or this Court for following the automatic

suspension.2

Neither Rule 24.2(a)(3) nor In re State Board of Educator Certification changes
            the suspension of this interlocutory injunction order
       11.     Appellee attempts to sidestep this result by contending Texas Rule of

Appellate Procedure 24.2(a)(3) and In re State Board of Educator Certification,

452 S.W.3d 802 (Tex. 2014) allows the trial court to disregard the foregoing

authorities and not honor the suspension of the temporary injunction order during

this appeal. Rule 24.2(a)(3) provides:

             When the judgment is for something other than money or an
             interest in property… the trial court may decline to permit the
             judgment to be superseded if the judgment creditor posts
             security ordered by the trial court in an amount and type that
             will secure the judgment debtor against any loss or damage
             caused by the relief granted the judgment creditor if an
             appellate court determines, on final disposition, that relief was
             improper.

TEX. R. APP. P. 24.2(a)(3) (emphasis added).               In State Board of Educator

Certification, an appeal of a permanent injunction, the supreme court construed

Rule 24.2(a)(3) in the context of that final judgment and held this rule provides a

trial court with discretion to enforce its non-money judgments against a

governmental entity if the appellee posts security in accordance with Rule



2
  The same is also true for all of the other individuals listed in Appellee’s motions who work
with or for County Judge Mark Henry.
                                              6
24.2(a)(3).3 Id. at 808-09. State Board of Educator Certification does not involve

or mention an interlocutory appeal of a temporary injunction order.

       12.     The only known case to address Rule 24.2(a)(3) in the context of an

interlocutory appeal of a temporary injunction by a governmental entity/official is

City of Dallas v. North by West Entertainment, Ltd., 24 S.W.3d 917 (Tex. App. –

Dallas 2000, no pet.). In City of Dallas, the court of appeals rejected the same

argument that Appellee now makes and held:

             Rule 24 is a general rule that provides how appellants may
             supersede final judgments. In contrast, rule 29 is a specific rule
             applying only to the appeal of interlocutory in civil cases. See
             Holmes v. Morales, 924 S.W.2d 920, 923 (Tex. 1996) (holding
             that when rule or statute applies to subject, it controls over
             general rules, statutes, or provisions); In re P.C., 970 S.W.2d
             576, 678 (Tex. App. – Dallas 1998, pet. denied) (discussing rule
             of statutory construction that specific controls over general).
             Because this case involves an interlocutory order, we conclude
             rule 29 controls.

Id. at 919. This reasoning applies to County Judge Mark Henry’s interlocutory

appeal of the temporary injunction. Pursuant to City of Dallas, Rule 29.1(b) rather

than Rule 24(a)(3) controls the suspension of the temporary injunction order in this

case during this interlocutory appeal.4


3
    Elizondo, 643 S.W.3d at 767 (recognizing a permanent injunction constitutes a final
judgment.).
4
   Even if Rule 24(a)(3) could override Rule 29.1(b) for purposes of this interlocutory appeal of
the temporary injunction order, it is still inapplicable. Rule 24(a)(3) is limited on its face to
judgments “for something other than money or an interest in property.” Assuming arguendo that
the temporary injunction order here could be a judgment, it requires, in part, the payment “by the
issuance of the appropriate check or direct deposit to Ms. Quiroga her same salary as was paid
                                                7
         13.   Accordingly, when County Judge Mark Henry perfected his

interlocutory appeal of the temporary injunction order, the temporary injunction

was automatically suspended as a matter of law and County Judge Mark Henry is

not required to obey the temporary injunction during this appeal and is not in

contempt of either the trial court or this Court for following the automatic

suspension. See City of Galveston v. Humphrey, 2001 WL 204765 at *5-6.

    County Judge Mark Henry’s additional interlocutory appeal of the denial of
    his plea to the jurisdiction also stays all other proceedings in the trial court.
         14.   County Judge Mark Henry is also protected by a further stay of all

other proceedings in the trial court under section 51.014(b) of the Texas Civil

Practice and Remedies Code due to his additional interlocutory appeal of the denial

of his plea to the jurisdiction.5 See Texas A&M University System v. Koseoglu, 233

S.W.3d 835, 837 (Tex. 2007); TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8), (b)



prior to July 24, 2014.” (CR. 337.) To the extent this is a requirement to restore back pay, it
constitutes money damages and falls outside of Rule 24(a)(3). See City of Seagoville v. Lytle,
227 S.W.3d 401, 412 (Tex. App. – Dallas 2007, no pet.) (recognizing an injunction to restore
pay back or unspecified back benefits constitutes money damages.).
5
   Appellee suggests that County Judge Mark Henry withdrew his plea to jurisdiction. That is
incorrect. Trial counsel for County Judge Mark Henry indicated to the trial court during an early
hearing that the plea to the jurisdiction could be postponed due to plaintiff’s representation that
certain jurisdictional allegations would be re-pleaded. The trial court then stated that plaintiff
could handle the matter on the record, which did not happen. (RR. 2:7-8.) Trial counsel for
County Judge Mark Henry then proceeded to make his jurisdictional arguments which the trial
court subsequently denied in its written order denying County Judge Mark Henry’s plea to the
jurisdiction. (RR. 2:12-13 et. seq; CR. 231.)
                                                8
(providing for an interlocutory appeal by a governmental entity/official from the

denial of a plea to the jurisdiction and the interlocutory appeal stays all

proceedings in the trial court during the appeal). As a result, for this additional

reason, County Judge Mark Henry is not required to obey the temporary injunction

during this appeal and is not in contempt of either the trial court or this Court for

following this additional stay.

      15.    Moreover, because of the nondiscretionary operation of section

51.014(b), any future hearings in the trial court to enforce the temporary injunction

or to deny County Judge Mark Henry the supersedeas effect of his appeal of the

temporary injunction order will constitute an abuse of discretion. See In re Texas

Education Agency, 441 S.W.3d 747, 750 (Tex. App. – Austin 2014, orig.

proceeding) (“[T]he stay set forth in section 51.014(b) is statutory and allows no

room for discretion”—granting mandamus and holding the trial court abused its

discretion by violating section 51.014(b) in denying the supersedeas effect of the

Education Commissioner’s appeals of temporary injunction orders after the

Commissioner had also appealed the denial of his plea to the jurisdiction.). In sum,


                                         9
all proceedings in the trial court, including the temporary injunction order, are

completely stayed during the pendency of County Judge Mark Henry’s appeals.

      16.    For all of these reasons, Appellee’s Motions for Contempt, and for

Enforcement of the Temporary Injunction should be denied in all things. With

respect to Appellee’s Motion Emergency Relief, County Judge Mark Henry agrees

that Appellee’s Motions should be denied without delay.

      WHEREFORE, PREMISES CONSIDERED Appellant, The Honorable

Mark Henry, County Judge of Galveston County respectfully requests the Court to

deny Appellee’s Motions for Contempt, and for Enforcement of the Temporary

Injunction should in all things. Appellant additionally prays for such other and

further relief to which he may be entitled.

                                       Respectfully submitted,
                                       BEIRNE, MAYNARD & PARSONS, L.L.P.
                                       By: /s/ N. Terry Adams, Jr.
                                             N. Terry Adams, Jr.
                                             Texas Bar No. 00874010
                                             tadams@bmpllp.com
                                             Joseph M. Nixon
                                             Texas Bar No. 15244800
                                             jnixon@bmpllp.com
                                             1300 Post Oak Blvd, Suite 2500
                                             Houston, Texas 77056
                                             (713) 623-0887 (Tel)
                                             (713) 960-1527 (Fax)




                                         10
                                            James E. “Trey” Trainor
                                            Texas Bar No. 24042052
                                            ttrainor@bmpllp.com
                                            401 W. 15th Street, Suite 845
                                            Austin, Texas 78701
                                            (512) 623-6700 (Tel)
                                            (512) 623-6701 (Fax)
                                            Counsel for Appellant


                     CERTIFICATE OF SERVICE
      I hereby certify that I have complied with the Texas Rules of Appellate
Procedure and the Local Rules of this Court and that the foregoing Consolidated
Response to Appellee’s Motions for Emergency Relief, for Contempt, and
Enforcement of the Temporary Injunction have been electronically filed and
served on all counsel of record in accordance with these Rules on this the 22nd
day of July, 2015.

    Mark W. Stevens
    P.O. Box 8118
    Galveston, Texas 77553
    markwandstev@sbcglobal.net

                                           /s/ N. Terry Adams, Jr.
                                           N. Terry Adams, Jr.




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