                                                                          ACCEPTED
                                                                     06-14-00086-CV
                                                           SIXTH COURT OF APPEALS
                                                                TEXARKANA, TEXAS
                                                               12/29/2014 3:39:15 PM
                                                                     DEBBIE AUTREY
                                                                              CLERK



           No. 06-14-00086-CV
                                                    FILED IN
                                             6th COURT OF APPEALS
                   In The                      TEXARKANA, TEXAS


Sixth Court of Appeals
                                             12/30/2014 4:20:00 PM
                                                  DEBBIE AUTREY
                                                      Clerk
             Texarkana, Texas

        Faye Comte & Laura Severt,
                             Appellants,
                     v.

   Smith County Commissioners Court,
      Joel Baker, Cary Nix, Jeff Warr,
      Joann Hampton & Terry Phillips

                             Appellees.

   On Appeal from the 241st District Court
         of Smith County, Texas
        Trial Cause No. 13-2492-C

        BRIEF FOR APPELLANTS


             Brandon Beck
             State Bar No. 24082671
             Starr Schoenbrun Comte
             McGuire PLLC
             110 N. College Ave., Suite 1700
             Tyler, TX 75702
             Appellate Counsel


         Oral Argument Requested
                 IDENTITY OF PARTIES AND COUNSEL

Appellants / Relators

      Faye Comte
      Laura Severt

Counsel for Appellants / Relators

      Brandon Beck
      Starr Schoenbrun Comte McGuire, PLLC
      110 N. College Ave., Suite 1700
      Tyler, TX 75702

Appellees / Respondents

      Smith County Commissioners Court
      Joel Baker
      Cary Nix
      Jeff Warr
      Joann Hampton
      Terry Phillips

Counsel for Appellees / Respondents

      Robert Davis
      Flowers Davis, PLLC
      1021 ESE Loop 323, Suite 200
      Tyler, Texas 75701




                                      i
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................. i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES .................................................................................... iv

STATEMENT OF THE CASE ................................................................................ vi

STATEMENT REGARDING ORAL ARGUMENT ............................................ viii

ISSUE PRESENTED ................................................................................................. ix

STATEMENT OF FACTS........................................................................................ 1

SUMMARY OF THE ARGUMENT ........................................................................ 3

STANDARD OF REVIEW ....................................................................................... 5

ARGUMENT ............................................................................................................. 6

I.       This court should reverse and instruct the district court to issue a writ
         of mandamus because the Smith County Commissioners Court refuses
         to perform a ministerial act and the Appellants have no other
         adequate remedy at law ................................................................................... 6

       A. The Smith County Commissioners Court refused to perform a
          ministerial act when it decided to withhold payment from court-
          appointed attorneys .................................................................................... 6

             1.     A district court judge is required by law to appoint attorneys to
                    represent the interests of children and indigent adults in DFPS
                    termination cases ................................................................................ 8

             2.     It is within the inherent power of a district court to decide
                    whom to appoint ................................................................................. 9

                                                           ii
              3.     All statutory prerequisites to payment were met .............................. 11

              4.     The Legislature requires the County Commissioners Court to
                     direct payment to court-appointed attorneys from the funds of
                     the county ......................................................................................... 14

       B.     The Appellants have no other adequate remedy at law ........................... 15

II.    The two highest Texas courts have explored these issues under similar
       circumstances and held that mandamus must issue ......................................... 17

       A. In Smith v. Flack, a case directly on point, the Texas Court of
          Criminal Appeals issued a writ of mandamus compelling a
          Commissioners Court to pay court-appointed attorneys .......................... 17

       B.     The Texas Supreme Court’s reasoning in Vondy v. Commissioners
              Court of Uvalde County strongly urges a holding in favor of the
              Appellants. ................................................................................................ 20

PRAYER ................................................................................................................... 23

CERTIFICATE OF COMPLIANCE....................................................................... 24

CERTIFICATE OF SERVICE ................................................................................. 24

      APPENDIX 1: A Flowchart of the Statutory Framework ........................... Tab 1




                                                             iii
                                      INDEX OF AUTHORITIES
                                                                                                             Page(s)
CASES

Entergy Gulf States, Inc. v. Summers,
   282 S.W.3d 433 (Tex. 2009) ................................................................................ 7

Highland Park v. Dallas R. Co.,
   243 S.W. 674 (Tex. App. 1922) ......................................................................... 16

Mattox v. Grimes Cnty. Comm’rs Court,
  (Tex. App.—Houston [14th Dist.] 2010, pet. denied) ........................................ 5

Mays v. Fifth Court of Appeals,
  755 S.W.2d 78 (Tex. 1988) ............................................................................ 6, 10

Smith v. Flack,
  728 S.W.2d 784 (Tex. Crim. App. 1987) .................................................... passim

Vondy v. Comm’rs Court of Uvalde Cnty.,
  620 S.W.2d 104 (Tex. 1981) ....................................................................... passim

Withers v. Comm’rs Court,
   75 S.W.3d 528 (Tex. App.—San Antonio 2002, no pet.) ................................... 5

TEXAS CONSTITUTION

Tex. Const. art. V, § 8 ............................................................................................. 10

Tex. Const. art. XVI, § 61 (amended 1972) ............................................................ 21

STATUTORY PROVISIONS

Tex. Crim. Proc. Ann. art. 26.05 (Vernon Supp. 2009).................................... 12, 13

Tex. Fam. Code Ann. § 51.10 (Vernon 2014) ........................................................ 12

Tex. Fam. Code Ann. § 107.012 (Vernon 2014) .................................................. 8, 9

                                                          iv
                          INDEX OF AUTHORITIES (cont’d)
                                                                                           Page(s)

Tex. Fam. Code Ann. § 107.013 (Vernon 2014) ...................................................... 9

Tex. Fam. Code Ann. § 107.015 (Vernon 2014) ............................................. passim

Tex. Gov’t Code Ann. § 311.011 (Vernon 2013) ..................................................... 7

Tex. Gov’t Code Ann. § 311.016 (Vernon 2013) ............................................... 7, 15

Tex. Loc. Gov’t Code Ann. § 113.064 (Vernon 2008) ........................................... 13

Tex. Loc. Gov’t Code Ann. § 115.021 (Vernon 2008) ..................................... 15, 20

Vernon’s Ann. Civ. Stat. Ann. art. 2351 (Supp. 1987)..................................... 18, 20

OTHER AUTHORITIES

Marialyn Barnard et al., Is my Case Mandamusable?: A Guide to the
  Current State of Mandamus Law, 45 St. Mary’s L.J. 143 (2014) .......................... 17




                                                 v
                          STATEMENT OF THE CASE

      On September 16, 2013, five court-appointed family law attorneys filed suit

against the Smith County Commissioners Court and its members in the 241st

Judicial District Court of Smith County, Texas. (C.R. at 1-28.) The attorneys

sought mandamus relief, asking the court to order the County Commissioners to

tender payment, in accordance with the Texas Family Code and Texas Local

Government Code, for work that the attorneys had performed pursuant to

appointment in Texas Department of Family and Protective Services (DFPS)

termination cases. (C.R. at 1-28.) On October 14, 2013, the County

Commissioners responded by filing a Plea to the Jurisdiction. (C.R. at 40-49.)

      On November 14, 2013, the Honorable Jack Skeen, who is the presiding

judge over the 241st Judicial District Court, recused himself sua sponte. (C.R. at

63.) On November 18, 2013, the Honorable Linda Thomas was appointed to hear

the case. (C.R. at 64.)

      Judge Thomas heard oral argument on June 6, 2014. (R.R. at 1-41.) On

August 25, 2014, Judge Thomas signed a final judgment denying the Petition for

Writ of Mandamus. (C.R. at 75.) Judge Thomas did not issue an opinion and never

ruled on the Plea to the Jurisdiction. Two of the court-appointed attorneys now




                                         vi
appeal the decision to deny their Petition for Writ of Mandamus, having filed their

notice of appeal on October 2, 2014. (C.R. at 76-78.)




                                        vii
              STATEMENT REGARDING ORAL ARGUMENT

      Due to the straightforward nature of this case and its near-identical

relationship to Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1987), the

Appellants believe the facts and legal arguments are adequately presented in the

briefs and record and the dispositive issues have been authoritatively decided.

However, if this Court were to believe that additional guidance would assist its

disposition, the Appellants request oral argument.




                                        viii
                            ISSUE PRESENTED

Can a County Commissioners Court refuse to tender payment for services
performed by court-appointed attorneys when:

    (1) the appointments were required by Texas law;
    (2) it is within a district court’s inherent power to choose whom to
        appoint;
    (3) the County Auditor has examined and approved the district court’s
        invoices for payment; and
    (4) Texas law expressly requires that the County Commissioners Court
        direct payment?

In other words, can a County Commissioners Court refuse to perform a purely
ministerial act?




                                      ix
                            STATEMENT OF FACTS

      The 321st Judicial District Court of Smith County, Texas (“the 321st

District Court”) maintains a high-volume docket that consists primarily of family

law cases. The court has nine contract attorneys who receive a monthly salary for

representing children and indigent adults in Texas Department of Family and

Protective Services (DFPS) termination cases. (See C.R. at 19.) If the contract

attorneys were overloaded with cases or conflicted-out, the judge would appoint a

non-contract attorney from the broader legal community for a particular case, who

would be paid on an hourly (rather than salaried) basis. (See C.R. at 24-25, 27-28;

R.R. at 4.) The Appellants, Faye Comte and Laura Severt, are two such attorneys.

      Between October 29, 2012 and May 23, 2013, the 321st District Court

appointed Ms. Comte and Ms. Severt to serve as an attorneys ad litem or guardians

ad litem in multiple cases. (C.R. at 21.) All of these appointments were for the

representation of children in DFPS termination cases. (C.R. at 21.) On June 18,

2013, the Smith County Commissioners Court issued an order, signed by County

Judge Joel Baker, stating, “After July 18, 2013, the Smith County Commissioners

Court will generally not approve any additional funding for non-contract attorney

fees in civil family matters arising from the 321st Judicial District Court for fiscal

year 2013.” (C.R. at 17-19.) The order also advised the court to “take reasonable


                                          1
steps” to transfer caseloads from non-contract attorneys to the contract attorneys.

(C.R. at 19.)

      Many cases were transferred; however, Ms. Comte and Ms. Severt reached

the conclusion that it would unethical—pursuant to the Texas Rules of

Professional Conduct—to terminate or transfer representation in twenty-three

cases. (C.R. at 4; see also C.R. at 24-25.) These decisions were made after

consulting with the Chief Disciplinary Counsel’s Office of the State Bar of Texas.

(C.R. at 4.) As such, Ms. Comte and Ms. Severt continued to represent some of

their appointment clients. Once the legal services were rendered, they submitted

invoices to the district court, which sent the invoices to the Smith County Auditor.

(C.R. at 23, 26.) The Auditor then “examined and approved” the invoices and sent

them by letter to Joel Baker and the County Commissioners “for payment.” (C.R.

at 23, 26.) The County Commissioners refused to tender payment, which left Ms.

Comte, Ms. Severt, and three other appointed attorneys no choice but to seek

mandamus relief. (C.R. at 1-28.) Their Petition for Writ of Mandamus was heard

on June 6, 2014, and denied on August 25, 2014, without opinion. (R.R. at 1-41;

C.R. at 75.) Ms. Comte and Ms. Severt now appeal the ruling of the district court.




                                         2
                      SUMMARY OF THE ARGUMENT

      This case is about a County Commissioners Court depriving good attorneys

of reasonable pay and jeopardizing the representation of children and indigent

adults in Smith County by refusing to perform a purely ministerial act. Secondarily,

at stake in this case is a district court’s inherent power to manage its own affairs,

which includes ad hoc decisions to appoint attorneys when required by Texas law.

      The statutory framework. The Texas Family Code requires a district judge to

appoint attorneys to represent children and indigent adults in DFPS termination

cases. After the attorneys complete their work, the Code provides that they are to

submit an invoice to the district court, which then sends the invoice to the County

Auditor who examines and approves it for payment. Once approved, under both

the Texas Family Code and Texas Local Government Code, the County

Commissioners Court shall direct payment to the court-appointed attorneys from

the funds of the county. Here, all of these events occurred in strict accordance with

the relevant statutes except one: the Smith County Commissioners Court refused

to pay the court-appointed attorneys, the Appellants in this case.

      The mandamus standard. A district court must issue a writ of mandamus to

compel a County Commissioners Court to perform an act if: (1) the act is

ministerial; and (2) there is no other adequate remedy at law. First, the statutory


                                         3
language chosen by the Legislature in this case does not afford the County

Commissioners discretion; therefore, their act of directing payment is purely

ministerial. Second, although the Appellants may technically have other remedies,

the remedies are not adequate, as a matter of law, because they are more uncertain,

burdensome, and tedious than mandamus relief.

      Legal precedent. Both high courts in Texas—the Texas Supreme Court and

the Texas Court of Criminal Appeals—have issued opinions that definitively

resolve the issues in this case. In Smith v. Flack, the Texas Court of Criminal

Appeals held that a County Commissioners Court cannot withhold payment from

court-appointed criminal defense attorneys. In Vondy v. Commissioners Court of

Uvalde County, the Texas Supreme Court held that a County Commissioners Court

must direct payment when a statute affords no discretion, even when the

Commissioners act under the guise of budgetary concern.

      The relief sought. This Court should reverse and remand, with instructions

that the district court: (1) calculate what the Appellants are owed, in accordance

with the invoices submitted to the County Auditor by the 321st District Court; and

(2) issue a writ of mandamus compelling the Smith County Commissioners Court

and its members to direct payment to the Appellants for the owed amount.




                                        4
                          STANDARD OF REVIEW

      The Appellants seek a writ of mandamus to compel public officials to

perform a ministerial act. Whether an act is ministerial depends upon whether it is

mandatory or discretionary. Mattox v. Grimes County Comm’rs Court, 305 S.W.3d

375, 380 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Such an inquiry, in

this case, involves matters of statutory construction, which are questions of law

reviewed de novo. Withers v. Comm’rs Court, 75 S.W.3d 528, 529 (Tex. App.—San

Antonio 2002, no pet.). Therefore the trial court’s decision is subject to de novo

review.




                                         5
                                ARGUMENT

I.       This court should reverse and instruct the district court to issue a
         writ of mandamus because the Smith County Commissioners
         Court refuses to perform a ministerial act and the Appellants have
         no other adequate remedy at law.

         A writ of mandamus is one of the oldest forms of judicial relief and the

appropriate means of redress when an official refuses to perform a ministerial act

and there is no other adequate remedy at law. Smith v. Flack, 728 S.W.2d 784, 789

(Tex. Crim. App. 1987). Such is the case here, where the Smith County

Commissioners Court has refused to direct payment to court-appointed attorneys

for their work representing children and indigent adults. This refusal not only

undermines the future representation of those in need but also needlessly interferes

with the inherent power of the district court to manage its own affairs.

     A. The Smith County Commissioners Court refused to perform a
        ministerial act when it decided to withhold payment from court-
        appointed attorneys.

         Texas courts have long held that mandamus is the proper remedy to compel

an official to perform an act that is “ministerial.” Mays v. Fifth Court of Appeals, 755

S.W.2d 78, 79 (Tex. 1988); Smith v. Flack, 728 S.W.2d 784, 789 (Tex. Crim. App.

1987); Wortham v. Walker, 133 Tex. 255, 277 (Tex. 1939). An act is ministerial if it

constitutes a mandatory duty required by law. Smith, 728 S.W.2d at 789. To state

                                           6
differently, an act is ministerial if the Legislature affords the actor no discretion.1 Id.

In order to determine whether the Legislature intends a statute to afford discretion,

courts         must      focus         on   the   language   of     the     statute     itself.

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); see Tex.

Gov’t Code Ann. § 311.011 (Vernon 2013). As a general rule, pursuant to the

Texas Code Construction Act, statutes that contain “shall” reflect a ministerial act,

whereas statutes that contain “may” are discretionary. Tex. Gov’t Code Ann.

§ 311.016(1)-(2) (Vernon 2013).

          Before analyzing the specific statutes that require the Commissioners Court

to direct payment to the Appellants2, it will be helpful to get a broad sense of the

statutory framework at play. A series of connected statutory provisions governs the

process from an attorney’s appointment to ultimate compensation for her services.

(See Appendix 1.) The events within this process are as follows: (1) the attorney is

appointed; (2) the attorney submits an invoice to the district judge; (3) the judge

approves and submits the invoice to the County Auditor; (4) the County Auditor

approves and submits the invoice to the County Commissioners Court; and (5) the


1
  As an aside, in civil cases, mandamus can issue even when the actor has some discretion if he
abuses his discretion. Vondy v. Comm’rs Court of Uvalde Cnty., 620 S.W.2d 104, 109 (Tex. 1981)
(“Even in matters involving some degree of discretion, the commissioners court may not act
arbitrarily.”). Here, however, the County Commissioners had no discretion to withhold payment.
2
    See discussion infra Part I.A.4.
                                                  7
County Commissioners Court directs payment to the attorney. Here, each of these

events occurred except the last. Moreover, each of these events is required by

statute, especially the last. Tex. Loc. Gov’t Code Ann. § 115.021 (Vernon 2008);

Tex. Fam. Code Ann. § 107.015(c) (Vernon 2014).

      1.   A district court judge is required by law to appoint attorneys
           to represent the interests of children and indigent adults in
           DFPS termination cases.

      The Texas Legislature, in its wisdom, has determined that a district court

must appoint counsel to represent children and indigent adults who are involved in

Texas Department of Family and Protective Services (DFPS) termination cases.

Regarding representation of children, the Texas Family Code provides:

            MANDATORY APPOINTMENT OF ATTORNEY AD
            LITEM FOR CHILD. In a suit filed by a governmental
            entity requesting termination of the parent-child
            relationship or to be named conservator of a child, the
            court shall appoint an attorney ad litem to represent the
            interests of the child immediately after the filing, but
            before the full adversary hearing, to ensure adequate
            representation of the child.

Tex. Fam. Code Ann. § 107.012. Similarly, regarding indigent adults, the Texas

Family Code provides:

            MANDATORY APPOINTMENT OF ATTORNEY AD
            LITEM FOR PARENT.


                                        8
             (a) In a suit filed by a governmental entity under Subtitle
             E in which termination of the parent-child relationship or
             the appointment of a conservator for a child is requested,
             the court shall appoint an attorney ad litem to represent
             the interests of:
             (1) an indigent parent of the child who responds in
             opposition to the termination or appointment . . . .

Tex. Fam. Code Ann. § 107.013 (Vernon 2014).

      The Texas Family Code does not distinguish between contract or non-

contract attorneys; instead, the Code only requires the appointment of an attorney

who will “represent the interests of” the child or indigent parent. Tex. Fam. Code

Ann. §§ 107.012-13. Here, the district judge did her job in strict accordance with

the will of the Legislature. Texas law required her to appoint an attorney and she

did; likewise, the Appellants were charged with representing their clients, which

they did—admirably and ethically.

      2.   It is within the inherent power of a district court to decide
           whom to appoint.

      The inner workings of a district court, particularly decisions by a district

judge to manage the court’s essential functions, are sacrosanct. Courts refer to

these workings and decisions as a court’s “inherent power,” which is to be vigilantly

protected. Vondy v. Comm’rs Court of Uvalde Cnty., 620 S.W.2d 104, 110 (Tex.

1981). It is not the role of the Commissioners Court to second-guess core judicial

                                         9
decisions. Id. The supervisory relationship between a district court and a

Commissioners Court is, in fact, the reverse. It is the district court that is charged

with supervising the Commissioners Court, pursuant to Texas Constitution, which

states, “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 (emphasis

added).

      Here, the district court judge made an informed decision, within her

inherent power, to appoint a few non-contract attorneys in DFPS termination

cases. This decision was ordinary and far from unusual for a judge who manages a

family law or criminal docket. Accordingly, the Commissioners Court has no right

or authority to undermine the appointments by refusing to pay the appointed

attorneys for their services. See Vondy v. Comm’rs Court of Uvalde Cnty., 620

S.W.2d 104, 110 (Tex. 1981). The opposite is true: the Commissioners Court has

an obligation—mandated by statute—to pay the appointed attorneys. Tex. Loc.

Gov’t Code Ann. § 115.021; Mays v. Fifth Court of Appeals, 755 S.W.2d 78, 80

(Tex. 1988) (Franklin, J., concurring) (“[A] court has the inherent power to

compel the expenditure of those public funds which are reasonably necessary for

the court to efficiently fulfill its constitutional function.”). The Texas Supreme


                                         10
Court provided a strong and powerful statement on inherent power in Vondy v.

Commissioners Court of Uvalde County, a mandamus case described fully in Part II

below. The Court stated:

             The legislative branch of this state has the duty to
             provide the judiciary with the funds necessary for the
             judicial branch to function adequately. If this were not so,
             a legislative body could destroy the judiciary by refusing
             to adequately fund the courts. The judiciary must have
             the authority to prevent any interference with or
             impairment of the administration of justice in this state.

Vondy v. Comm’rs Court of Uvalde Cnty., 620 S.W.2d 104, 110 (Tex. 1981). This

Court should heed the words of the Texas Supreme Court and remind the Smith

County Commissioners Court that its reach has limitations.

      3.   All statutory prerequisites to payment were met.

      After the district court appoints an attorney, several events occur before the

attorney is entitled to payment, all of which occurred here.

      First, the attorney must represent her client and keep track of her time for

presentation to the district court. This is an important step in this case, illustrating

that the Appellants were not in a position to request final payment prior to the

Commissioners Court’s “deadline” because they were still in the process of

representing their clients. All work relevant to this case, however, was completed

on or before August 20, 2013. (See C.R. at 27-28.)
                                          11
      Second, the attorney must present her invoice to the district judge, which

the Appellants did on or before September 10, 2013. (See C.R. at 26.) This is

required by Texas Family Code § 107.015(d), which states:

             (d) A person appointed as a guardian ad litem or
             attorney ad litem shall complete and submit to the court
             a voucher or claim for payment that lists the fees charged
             and hours worked by the guardian ad litem or attorney ad
             litem. Information submitted under this section is subject
             to disclosure under Chapter 552, Government Code.

Tex. Fam. Code Ann. § 107.015(d). Additionally, one of the judge’s roles is to

ensure that the fee amounts are consistent with the fee schedule that applies to an

attorney appointed under Title 3 Chapter 51, pursuant to Texas Family Code

§ 107.015(c). Title 3 Chapter 51, which is simply Texas Family Code Chapter 51,

indexes its fee schedule to that of court-appointed criminal attorneys:

             [A]n attorney appointed under this section to represent
             the interests of a child shall be paid from the general fund
             of the county in which the proceedings were instituted
             according to the schedule in Article 26.05 of the Texas
             Code of Criminal Procedure, 1965.

Tex. Fam. Code Ann. § 51.10(i). Texas Code of Criminal Procedure art. 26.05

empowers each county to set its own hourly fee rate, which, in Smith County, is

$75 per hour. The invoices the Appellants submitted reflect a rate of $75 per hour,



                                         12
which is consistent with Texas statutory law and Smith County policy. (C.R. at 23-

28.)

         Third, the County Auditor is charged with examining and approving the

invoices. The Texas Local Government Code provides:

              APPROVAL OF CLAIMS BY COUNTY AUDITOR.
              (a) In a county that has the office of county auditor,
              each claim, bill, and account against the county must be
              filed in sufficient time for the auditor to examine and
              approve it before the meeting of the commissioners court.
              A claim, bill, or account may not be allowed or paid until
              it has been examined and approved by the auditor.

Tex. Loc. Gov’t Code Ann. § 113.064 (Vernon 2008). Here, this requirement was

met on August 26, 2013, and September 10, 2013, as reflected in two letters sent

from the County Auditor to the Commissioners Court. (C.R. at 23, 26.) The letters

state:

              Attached is a compilation of the non-contract attorney
              invoices received from the 321st District Court for
              services rendered, yet unpaid, due to lack of budgetary
              funding. These invoices were incurred as authorized in the
              Family Code, Chapter 107.015 (c)(d) and have been
              examined and approved for payment by the County Auditor
              pursuant to LGC, Chapter 113.064 and 113.065.




                                         13
(C.R. at 23, 26) (emphasis added). Once the Auditor examined and approved the

invoices for payment, no discretion remained—the Commissioners Court had to

act.

       4.   The Legislature requires the County Commissioners Court to
            direct payment to court-appointed attorneys from the funds of
            the county.

       Two statutes, taken together, require the County Commissioners Court to

tender payment to court-appointed attorneys from the county treasury. First, the

Texas Family Code requires that the attorneys be paid by the county. The Code

provides:

             If indigency of the parents is shown, an attorney ad litem
             appointed to represent a child or parent in a suit filed by
             a governmental entity shall be paid from the general funds
             of the county according to the fee schedule that applies to
             an attorney appointed to represent a child in a suit under
             Title 3 as provided by Chapter 51.

Tex. Fam. Code Ann. § 107.015(c) (emphasis added). Second, the Texas Local

Government Code specifies that it is the County Commissioners Court’s

responsibility to tender payment. The Code provides:

             The commissioners court of a county shall audit and
             settle all accounts against the county and shall direct the
             payment of those accounts.



                                         14
Tex. Loc. Gov’t Code Ann. § 115.021. Here, the County Auditor examined and

approved the accounts for payment, and sent the invoices to the County

Commissioners. (C.R. 23, 26.) At that point, all the County Commissioners had to

do was “direct the payment of those accounts.” Tex. Loc. Gov’t Code Ann.

§ 115.021.

      As indicated above, the Legislature’s use of the modal verb “shall” reflects a

mandatory duty, i.e. a ministerial act. Tex. Gov’t Code Ann. § 311.016(1)-(2);

Smith v. Flack, 728 S.W.2d 784, 789-790 (Tex. Crim. App. 1987) (explaining that

the phrase “shall be paid from the general fund of the county” reflects a mandatory,

ministerial duty). “Shall” appears in both Texas Family Code § 107.015(c), which

entitles the Appellants to payments, and in Texas Local Government Code

§ 115.021, which obligates the County Commissioners Court as the payor. “May”

or “might” appears in neither of these statutes. Therefore, the act of directing

payment to the Appellants is ministerial. Tex. Gov’t Code Ann. § 311.016(1)-(2).

 B. The Appellants have no other adequate remedy at law.

      In a case styled Smith v. Flack, described fully in Part II below, the Texas

Court of Criminal Appeals discussed what it means to have an “adequate remedy at

law,” which is the second element of mandamus relief. Smith v. Flack, 728 S.W.2d

784, 789 (Tex. Crim. App. 1987). There, a County Commissioners Court argued


                                        15
that court-appointed criminal attorneys were not entitled to mandamus relief

because they had an alternative remedy at law, which was to sue in civil court as

judgment creditors of the county. Id. at 792-93. The Court of Criminal Appeals

agreed that the attorneys had a remedy, but disagreed that it was adequate, stating,

“In some cases, a remedy at law may technically exist; however, it may nevertheless

be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or

ineffective as to be deemed inadequate.” Id. at 792. The Court further cited

Highland Park v. Dallas Railway Co., a prior civil opinion, in which the Texas Court

of Appeals held that an adequate remedy is one that is “equally convenient,

beneficial, and effective as the proceeding by mandamus.” Highland Park v. Dallas

R. Co., 243 S.W. 674, 681 (Tex. App. 1922).

      The Appellants are in the precise situation of the court-appointed attorneys

in Smith v. Flack. Although some other avenue for relief may technically exist, there

is no disputing that it would burdensome and inconvenient in comparison to

seeking a writ of mandamus, which is direct and efficient. Therefore, just as in

Smith v. Flack, the Appellants have no other adequate remedy at law. Accordingly,

because the Appellants have also demonstrated that the County Commissioners

Court has a ministerial duty to direct payment, this Court should reverse and

instruct the district court to issue a writ of mandamus.


                                          16
II.       The two highest Texas courts have explored these issues under
          similar circumstances and held that mandamus must issue.

 A. In Smith v. Flack, a case directly on point, the Texas Court of
    Criminal Appeals issued a writ of mandamus compelling a
    Commissioners Court to pay court-appointed attorneys.

          The facts of Smith v. Flack are identical to this case except that Smith v. Flack

involved court-appointed criminal defense attorneys and this case involves court-

appointed family law attorneys. Smith v. Flack, 728 S.W.2d 784, 786 (Tex. Crim.

App. 1987). The legal underpinnings of Smith v. Flack are also identical except for

one difference that actually strengthens the Appellants’ position: it is harder to

acquire mandamus in a criminal case than a civil one. See Marialyn Barnard et al.,

Is My Case Mandamusable?: A Guide to the Current State of Mandamus Law, 45 St.

Mary’s L.J. 143, 180-81 (2014). It would follow that if the attorneys in Smith v.

Flack received mandamus, then the Appellants are certainly entitled to the same

relief.

          In Smith v. Flack, a district judge approved payment of attorney fees to four

court-appointed criminal defense attorneys for work they had performed. Smith,

728 S.W.2d at 787. The judge’s order was then presented to the County Auditor.

Id. After consulting with the County Board of District Judges, the County Auditor

approved only a reduced fee amount; the County Commissioners Court agreed and


                                              17
tendered payment of the reduced fees. Id. at 787-88. In the aggregate, the

attorney’s fee amounts were reduced by the County Auditor and County

Commissioners from $3,500 to $2,425. Id. The court-appointed attorneys then sued

the County Auditor and County Commissioners, seeking a writ of mandamus

compelling the payment of their full fee amounts. Id. at 786.

      The Court of Criminal Appeals applied a two-part test to determine whether

mandamus should issue: a relator must establish that (1) the act he seeks to compel

is ministerial, and (2) no other adequate remedy at law is available. Id. at 789. In

order to determine whether the act of payment was ministerial, the Court

examined whether the operative payment statute was mandatory or discretionary.

Id. A plain reading of two statutes convinced the Court that the County

Commissioners’ act of payment was ministerial. First, Texas Code of Criminal

Procedure article 26.05 stated that court-appointed attorneys “shall be paid from

the general fund of the county in which the prosecution was instituted.” Id.

(emphasis in opinion). Second, Vernon’s Annotated Civil Statutes article 2351(10)

stated that “each commissioners court shall . . . audit and settle all accounts against

the county and direct their payment.” Id. at 790 (emphasis in opinion). Based on the

Legislature’s chosen language, the Court concluded that the attorneys sought to

compel the County Commissioners to perform a ministerial act. Id. at 792.


                                          18
      After finding that the first element was satisfied, the Court turned to the

second element, which concerns whether the attorneys had another adequate

remedy at law. Id. The Commissioners Court argued, and the attorneys conceded,

that there was technically another remedy at law: the attorneys could file a

separate suit in civil court seeking to recover as creditors of the county. Id.

Although true, the Court found this argument unpersuasive, deeming the remedy

inadequate because it was characteristically uncertain, tedious, burdensome, slow,

inconvenient, inappropriate or ineffective. Id. Therefore, holding that there was no

other adequate remedy at law, the Court conditionally granted the attorneys’

petition for writ of mandamus, stating that it would issue if the Commissioners

Court did not tender payment in accordance with the court-approved amounts. Id.

at 794.

      The similarities between Smith v. Flack and this case are striking and demand

a holding in favor of the Appellants. Factually, both involve unpaid or underpaid

court-appointed attorneys who sought a writ of mandamus compelling the

Commissioners to comply with the wishes of the Legislature and district court that

appointed the attorneys. Legally, the cases are identical. First, a comparison of the

language of the statutes:




                                         19
                  Smith v. Flack                                         This case
Court-appointed criminal defense attorneys           Court-appointed        attorneys    in     DFPS
“shall be paid from the general fund of the county   termination suits “shall be paid from the general
. . .” Tex. Code of Crim. Pro. art. 26.05 (Supp.     funds of the county . . .” Tex. Fam. Code Ann.
1987).                                               § 107.015(c).
“. . . each commissioners court shall . . . audit    “The commissioners court of a county shall
and settle all accounts against the county           audit and settle all accounts against the county
and direct their payment.” V.A.C.S. art.             and shall direct the payment of those
2351(10) (Supp. 1987).                               accounts.” Tex. Loc. Gov’t Code Ann.
                                                     § 115.021.

Second, the remedies at law are identical. Although there are technically other

avenues, only one is adequate: mandamus relief. Therefore, this Court should

strongly heed the guidance of the Texas Court of Criminal Appeals and reverse.

 B. The Texas Supreme Court’s reasoning in Vondy v. Commissioners
    Court of Uvalde County strongly urges a holding in favor of the
    Appellants.

       Although not as factually similar as Smith v. Flack, the Texas Supreme

Court’s opinion in Vondy v. Commissioners Court of Uvalde County probes many of

the issues involved in this case and strongly urges a holding in favor of the

Appellants. See generally Vondy v. Comm’rs Court of Uvalde Cnty., 620 S.W.2d 104

(Tex. 1981).

       In Vondy, a man was elected constable of a county precinct. Id. at 105. After

he was sworn in, the constable went before the County Commissioners court and

requested that they set his salary. Id. The Commissioners, by majority vote, decided

not to provide the constable with any salary. Id. The constable then petitioned the
                                                 20
district court for a writ of mandamus, which the court denied. Id. The appellate

court dismissed his case on a technicality3 and the constable appealed to the Texas

Supreme Court. Id.

       In order to determine whether a writ of mandamus should issue, the Court

examined the relevant statute, which stated:

              In all counties in this State, the Commissioners Courts
              shall be authorized to determine whether precinct officers
              shall be compensated on a fee basis or on a salary basis,
              with the exception that it shall be mandatory upon the
              Commissioners Courts, to compensate all justices of the
              peace, constables, deputy constables and precinct law
              enforcement officers on a salary basis beginning January
              1, 1973 . . . .

Tex. Const. art. XVI, § 61 (amended 1972); Vondy, 620 S.W.2d at 108. The

County Commissioners made two arguments in light of the statutory mandate: (1)

they were only required to set a salary if the constable was compensated at all; and,

alternatively, (2) by not setting a salary, they did set a salary at $0 per year. Vondy,

620 S.W.2d at 108. The Court did not find the Commissioners’ arguments


3
  A discussion of the intermediate court’s dismissal is not relevant to this case. The appellate
court was concerned because the constable only sued the county commissioners who voted not to
give him a salary, which left one commissioner out of the suit. The appellate court believed this
was a procedural defect which doomed the constable’s ability to appeal his case. The Texas
Supreme Court, however, disagreed. Regardless, that issue is not presented here because
Appellants have sued all of the County Commissioners as well as the Commissioners Court.
Therefore, Appellants’ description of the Vondy opinion will omit the lengthy discussion of
whether all commissioners must be included in the petition for writ of mandamus.
                                               21
persuasive and concluded that the district court should have granted the

constable’s petition for writ of mandamus because the Commissioners had a

ministerial duty to set a salary. Id. at 109. Further, the Court noted, even if there

were some discretion, mandamus should still issue because the Commissioners

abused their discretion. Id. Finally, and central to this case, the Court observed that

to not issue mandamus relief would interfere with the proper functioning of the

judicial system. Id. at 110.

      Here’s the import of Vondy as it relates to this case: the Texas Supreme

Court has stated, in no uncertain terms, that a County Commissioners Court

cannot oppose a nondiscretionary statutory instruction by the Legislature, even in

the guise of budgetary concerns. Id. at 109-110. Moreover, the district court must

issue a writ of mandamus as an act of self-preservation when the Commissioners

Court withholds funds in such a way that will interfere with the function of the

court. Id. In order to act consistent with Vondy, this Court should reverse and

instruct the district court to issue a writ of mandamus to the Smith County

Commissioners Court compelling it to direct payment to the Appellants.




                                          22
                                      PRAYER

      The Appellants request that this Court reverse the district court’s decision to

deny their Petition for Writ of Mandamus.

      The Appellants request that this Court remand their case to the district

court with instructions that the district court:

 (1) calculate what the Appellants are owed, in accordance with the invoices

      submitted to the County Auditor by the 321st District Court; and

 (2) issue a writ of mandamus compelling the Smith County Commissioners

      Court and its members to direct payment to the Appellants for the owed

      amounts.

                                               Respectfully submitted,

                                               /s/ Brandon Beck
                                               Brandon Beck

                                               Attorney for Appellants




                                          23
                      CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4, I certify that this brief

contains no more than 6,200 words.

                                              /s/ Brandon Beck
                                              Brandon Beck

                                              Attorney for Appellants


                         CERTIFICATE OF SERVICE

      I certify that a copy of the Appellants’ brief was served upon Appellees

through its counsel of record by facsimile, on this, the 29th day of December, 2014.

                                              /s/ Brandon Beck
                                              Brandon Beck

                                              Attorney for Appellants




                                         24
Appendix 1
            Appendix 1: A Flowchart of the Statutory Framework




                        Texas Family Code § 107.012
    In a suit filed by a governmental entity requesting termination of the parent-child
relationship or to be named conservator of a child, the court shall appoint an attorney ad
                                         litem . . .




                        Texas Family Code § 107.015
   . . . an attorney ad litem appointed to represent a child or parent in a suit filed by a
         governmental entity shall be paid from the general funds of the county . . .




                    Texas Local Gov't Code § 113.064
. . . each claim, bill, and account against the county must be filed in sufficient time for the
      auditor to examine and approve it before the meeting of the commissioners court.




                    Texas Local Gov't Code § 115.021
The commissioners court of a county shall audit and settle all accounts against the county
                   and shall direct the payment of those accounts.
