                                                                                              ACCEPTED
                                                                                          01-15-00583-CV
                                                                               FIRST COURT OF APPEALS
                                                                                       HOUSTON, TEXAS
                                                                                     7/22/2015 4:29:32 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 4:29:32 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 MOTION TO CREATE A SEPARATE DOCKET
 NUMBER FOR HIS ADDITIONAL AND SEPARATE NOTICE
OF APPEAL THAT CHALLENGES THE DENIAL OF HIS PLEA
TO JURISDICTION AND MOTION TO ABATE THE BRIEFING
 SCHEDULE IN THIS TEMPORARY INJUNCTION APPEAL
 UNTIL THE JURISDICTIONAL APPEAL UNDER THE NEW,
       SEPARATE DOCKET NUMBER IS DECIDED
    _______________________________________________________________

TO THE HONORABLE FIRST COURT OF APPEALS:

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

files this Motion to Create a Separate Docket Number for His Additional and

Separate Notice of Appeal that Challenges the Denial of His Plea to the

Jurisdiction and Motion to Abate the Briefing Schedule in This Temporary
Injunction Appeal Until the Jurisdictional Appeal Under the New, Separate Docket

Number is Decided, and would show the Court as follows:

                                     Background

A.    This interlocutory appeal challenges the merits of the temporary
      injunction order issued against Appellant County Judge Mark Henry.
      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.1 (CR. 9, 247.)

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

injunction order against County Judge Mark Henry as requested by Judge Cox.

(CR. 329.)

      3.     County Judge Mark Henry immediately appealed the temporary

injunction order. (CR. 334.) The interlocutory appeal was assigned to this Court

and received the above-captioned docket number.

      4.     A briefing schedule was recently set in this temporary injunction

appeal. The appellant’s brief by County Judge Mark Henry challenging the merits


1
 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.
                                            2
of the temporary injunction order is currently due August 6. The substantive

merits of the temporary injunction order are necessarily subservient to the separate

and preliminary issue of subject matter jurisdiction—which County Judge Mark

Henry also challenged by a plea to the jurisdiction that was denied. (CR. 231.)

B.    Appellant’s additional notice of appeal, received by the Court July 14
      and given the same docket number as this temporary injunction appeal,
      challenges the separate and preliminary matter of lack of subject matter
      jurisdiction.
      5.     On July 13, Appellant County Judge Mark Henry filed an additional

and separate Notice of Interlocutory Appeal to challenge the denial of his plea to

the jurisdiction and lack of subject matter jurisdiction below. TEX. CIV. PRAC. &

REM. CODE § 51.014(a)(8); see Texas A&M University System v. Koseoglu, 233

S.W.3d 835, 837 (Tex. 2007). The jurisdictional inquiries raised by County Judge

Mark Henry’s additional notice of appeal include standing and sovereign immunity

challenges that unquestionably are separate and distinct from the substantive merits

(lack thereof) of the temporary injunction in the above-captioned docket number.

      6.     Subject matter jurisdiction is essential to the authority of a court to

decide a case and is never presumed. See Garcia v. Kubosh, 377 S.W.3d, 89, 94

(Tex. App. – Houston [1st Dist.] 2012, no pet.). Equating the substantive merits

with subject matter or personal jurisdiction violates the fairness considerations that

form the basis of due-process mandates. See e.g., Wilson v. Baker, 2011 WL

6938523 at *2 (Tex. App. – Austin 2011, no pet.).
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      7.     On July 14, County Judge Mark Henry’s additional and separate

Notice of Interlocutory Appeal regarding the denial of his plea to the jurisdiction

was received by the Court and given this same docket number as the temporary

injunction appeal.

 The creation of a separate docket number for Appellant’s new jurisdictional
                        appeal is necessary and proper
      8.     County Judge Mark Henry requests that the Court create a new and

separate docket number for his new interlocutory appeal regarding the denial of his

plea to the jurisdiction and the lack of subject matter jurisdiction below.

      9.     From a legal standpoint, this is necessary and proper because the

substantive merits of the temporary injunction appeal should not be intertwined or

equated with the issues in the jurisdictional appeal. Id.

      10.    From a practical standpoint, since lack of subject matter jurisdiction is

always controlling, the creation of a separate docket number for the new

jurisdictional appeal will allow the parties to provide the Court with focused

briefing on that preliminary matter and avoid the additional expense of briefing the

substantive merits of the temporary injunction order—unless that in fact becomes

necessary. In that event, the parties will be able to provide focused briefing to the

Court on the substantive merits of the temporary injunction order (and lack thereof)

that will not be duplicative of the briefs in the jurisdictional appeal. The parties,



                                           4
the Court, and the administration of justice will all benefit from the efficiencies

afforded by this more measured approach.

         An abatement of the briefing schedule in this temporary injunction
                       appeal is also necessary and proper
      11.    To realize the full benefits afforded by the creation of a separate

docket number for the jurisdictional appeal, County Judge Mark Henry further

requests that the Court abate the briefing schedule in this temporary injunction

appeal under the above-captioned docket number until the jurisdictional appeal

under the new, separate docket number is decided. At that point, the Court can

either dismiss this temporary injunction appeal as moot or reset the briefing

schedule on the substantive merits of the temporary injunction order, if necessary.

This will greatly aid the Court and the parties in efficiently resolving the entire

case and avoid unnecessary complication and expense in reaching that resolution.

      12.    Accordingly, for all of these reasons, Appellant, The Honorable Mark

Henry, County Judge of Galveston County requests the Court to (i) create a

separate docket number for his additional interlocutory appeal regarding the denial

of his plea to the jurisdiction and lack of subject matter jurisdiction below, and (ii)

abate the briefing schedule in this temporary injunction appeal until the

jurisdictional appeal under the new, separate docket number is decided.




                                          5
                      CERTIFICATE OF CONFERENCE

      In accordance with TEX. R. APP. P. 10.1(a)(5), the undersigned counsel for

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

communicated with Mr. Mark Stevens, counsel for Appellee by telephone on July

21 and 22, 2015 to confer about the merits of these Motions. Mr. Stevens indicated

that Appellee is opposed to the Motions being granted.

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

      WHEREFORE, PREMISES CONSIDERED Appellant, The Honorable

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

(i) create a separate docket number for his additional interlocutory appeal

regarding the denial of his plea to the jurisdiction and lack of subject matter

jurisdiction below, and (ii) abate the briefing schedule in this temporary injunction

appeal until the jurisdictional appeal under the new, separate docket number is

decided. 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
                                         6
                                            jnixon@bmpllp.com
                                            1300 Post Oak Blvd, Suite 2500
                                            Houston, Texas 77056
                                            (713) 623-0887 (Tel)
                                            (713) 960-1527 (Fax)
                                            James E. “Trey” Trainor
                                            Texas Bar No. 24042052
                                            ttrainor@bmpllp.com
                                            401 W. 15th Street, Suite 845
                                            Austin, Texas 78701
                                            Telephone: (512) 623-6700
                                            Fax: 623-6701

                                            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 Motions 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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