                                                                             ACCEPTED
                                                                         01-15-00583-CV
                                                              FIRST COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                     7/7/2015 9:39:16 AM
                                                                   CHRISTOPHER PRINE
                                                                                  CLERK

                     NO. __________________
                  In the Court of Appeals               FILED IN
                          for the                1st COURT OF APPEALS
                                                     HOUSTON, TEXAS

                  First District of Texas        7/7/2015 9:39:16 AM
                                                 CHRISTOPHER A. PRINE
                                                         Clerk


THE HONORABLE MARK HENRY, COUNTY JUDGE OF GALVESTON COUNTY,
                                         Appellant,
                            v.

                  THE HONORABLE LONNIE COX,
                                          Appellee.


             From the 56th Judicial District Court of
         Galveston County, Texas, Cause No. 15-CV-0583


            APPELLANT’S EMERGENCY MOTION FOR STAY

Edward L. Friedman                 James P. Allison
State Bar No. 07462950             Texas Bar No. 01090000
efriedman@bakerlaw.com             j.allison@allison-bass.com
BAKER & HOSTETLER LLP              J. Eric Magee
811 Main Street, Suite 1100        Texas Bar No. 24007585
Houston, Texas 77002               e.magee@allison-bass.com
Telephone: 713.751.1600            Phillip Ledbetter
Facsimile: 713.751.1717            Texas Bar No. 24041316
                                   p.ledbettcr@allison-bass.com
                                   ALLISON, BASS & MAGEE, L.L.P.
                                   A.O. Watson House
                                   402 W. 12th Street
                                   Austin, Texas 78701
                                   Telephone: 512.482.0701
                                   Facsimile: 512.480.0902

                     Attorneys for Appellant
                         EMERGENCY MOTION FOR STAY

TO THE HONORABLE COURT OF APPEALS:

      The Honorable Mark Henry, County Judge of Galveston,

Appellant, moves pursuant to Rules 29.1(b) and 29.3 of the Texas Rules

of Appellate Procedure, for an emergency stay of a temporary injunction

with which he cannot lawfully comply. A stay is needed to prevent

contempt proceedings from being initiated based on that temporary

injunction and to avoid further political discord between the

administrative judges of Galveston County and the Galveston County

Commissioners Court. 1

                               BACKGROUND FACTS

      Judge Henry is the County Judge of Galveston County. He

presides over the five-member Galveston County Commissioners Court.

Judge Cox is the presiding judge of the 56th Judicial District Court of

Galveston County and the Administrative Judge of the Galveston

County District Courts.



1Indeed, one journalist has described this case as “a separation-of-powers dispute of epic
proportions.” See Angela Morris, Judges, Commissioners Fighting in Separation-of-Powers
Brawl,            Texas            Lawyer,             June            26,           2015,
http://www.texaslawyer.com/id=1202730719716/Judges-Commissioners-Fighting-in-
SeparationofPowers-Brawl#ixzz3eStNanng (emphasis added).


                                            1
       The legal dispute underlying this motion for stay centers on the

commissioners court’s July 24, 2014 employment termination of Bonita

Quiroga, a nonparty to this appeal or the injunction proceeding below.

Prior to her discharge, Ms. Quiroga served as Galveston County’s

Director of Justice Administration, a position that was initially created

in 1995 and included duties related to both the legislative and judicial

branches. Ms. Quiroga was appointed to that position by the

commissioners court in 2000.2 At the time of her termination, Ms.

Quiroga had thirteen (13) direct reports, nine (9) of whom performed

services related to the legislative branch functions and five (5) of whom

performed       functions      related     to       the   judicial   branch     functions.

Throughout her employment as Director, she was supervised by the




2 There is no statutory basis for the position of Director of Justice Administration. At the
time the position was created in the county, Chapter 75 of the Texas Government Code did
not authorize the Galveston County district courts to establish a court administration
system or appoint a court administrator. See TEX. GOV’T CODE § 75.401, et seq.
Furthermore, Ms. Quiroga was not an appointee of the judiciary pursuant to Chapter 151 of
the Texas Local Government Code. She was also not employed under any statute by which
the Director of Justice Administration served at the pleasure of the administrative district
judge. See, e.g., TEX. GOV’T CODE § 52.041 (“An official court reporter is a sworn officer of
the court and holds office at the pleasure of the court.”); TEX. GOV’T CODE § 74.101(b)
(“Each court coordinator serves at the pleasure of the judge who appointed him.”); TEX.
GOV’T CODE § 76.002 (community supervision and correction departments established and
supervised by the district and statutory county court judges trying criminal cases). Rather,
the position always reported to, and was under the supervision of, the County Judge and
commissioners court.


                                                2
commissioners court and—at all times—reported directly to the County

Judge and commissioners court.

      Yet, Judge Cox contends that the mere fact that Ms. Quiroga

performed some judiciary-related functions empowered him with the

exclusive authority to make decisions regarding her employment (i.e., to

hire and fire her). As a result, Judge Cox issued two ex parte orders

seeking to undo Ms. Quiroga’s termination and initiated temporary

injunction and contempt proceedings against Judge Henry. Notably

absent as parties in the present lawsuit are any of the four

commissioners of Galveston County or the commissioners court itself.

      During the protracted legal and political dispute over Ms.

Quiroga’s termination, attempts were made to resolve the issue. One

such endeavor culminated on May 12, 2015, when Judge Cox, along

with the administrative judges for the Galveston County Courts at Law

and Probate Court, submitted an application to the commissioners

court, pursuant to section 74.103 of the Texas Government Code and

Chapter 151 of the Texas Local Government Code, to create the position

of Director of Court Administration, which would report to Judge Cox as

the   Administrative   District   Judge.   The   application   asked   the


                                    3
commissioners court to create the position of Director of Court

Administration, which would perform all of the judiciary-related duties

previously performed by the Director of Justice Administration position,

but none of the legislative-related duties previously performed by the

Director. Judge Cox requested that the new position be paid within a

salary range of $85,000 – $120,000 (the approximate salary Ms.

Quiroga previously earned as Director of Justice Administration).

     On June 13, 2015, the commissioners court approved the new

position of Director of Court Administration, but at a salary range

between $57,705 and $63,695, which it determined was more

commensurate for the newly-created position which had less duties and

less direct reports than the Director of Justice Administration position.

That same day, the commissioners court also provided several

administrative staff support positions for the Director of Court

Administration, each of these positions was created in the 56th Judicial

District Court. The commissioners court recognized that Judge Cox

could appoint whomever he chooses to the newly-created positions,

specifically including Ms. Quiroga. Because the new Director of Court

Administration position rendered the Director of Justice Administration


                                   4
position substantially duplicative and unnecessary, the commissioners

court abolished the latter position in the Justice Administration

Department, and transferred funds associated with the salary and

benefits for the former Director of Justice Administration position to the

General Government Fund.

      Not content with the salary set by commissioners court for the

Director of Court Administration position, Judge Cox initiated the

instant action solely against Judge Henry. Judge Cox did not name the

commissioners court or any of the four commissioners as a party to the

litigation. In this action, Judge Cox sought and received an ex parte

temporary restraining order and recently a temporary injunction

against Judge Henry. Judge Cox also seeks a declaration of constructive

contempt against Judge Henry for his purported violations of Judge

Cox’s two ex parte orders. All this as part of Justice Cox’s endeavor to

reinstate Ms. Quiroga as Director of Justice Administration—a position

from which she was rightfully terminated a year ago and that no longer

exists.

      After several days of evidence and argument, the Honorable

Sharolyn Wood, presiding over the 56th Judicial District Court of


                                    5
Galveston County, granted Judge Cox’s application for a temporary

injunction. The trial court issued a prohibitive and mandatory

injunction against Judge Henry under the guise of “return[ing] to the

last, peaceful, uncontested status of July 23, 2014.” The temporary

injunction requires Judge Henry “and all acting in concert with him” to

reestablish the position of Director of Justice Administration, remove

the legislative-related duties from that position, appoint Ms. Quiroga to

the position, and set Ms. Quiroga’s salary at the same amount she was

earning a year ago. Accordingly, the temporary injunction attempts to

order Judge Henry to force the commissioners court—a nonparty to this

suit—to recreate a position that no longer exists and, critically, to

amend the Galveston County budget in order to transfer funds back

into the Justice Administration Department to pay Ms. Quiroga the

salary ordered by the court. (See Exhibit A).

     Importantly, during the hearing, counsel for Judge Henry

requested a stay of the temporary injunction pending an interlocutory

appeal of the order. Instead of conditionally granting the requested stay

on the condition that a notice of appeal is filed in short order, Judge

Wood denied the request outright. On the filing of Judge Henry’s notice


                                    6
of appeal, the temporary injunction was automatically stayed pursuant

to TEX. R. APP. P. 29.1(b) and TEX. CIV. PRAC. & REM CODE § 6.001. See

Dallas v. North By West Entertainment, 24 S.W.3d 917, 918-19 (Tex.

App.—Dallas 2000, no pet.) (holding that Rule 29 stays a temporary

injunction appealed by a governmental entity); Enriquez v. Hooten, 857

S.W.2d 153, 154-55 (Tex. App.—El Paso 1993, no writ) (concluding that

TEX. CIV. PRAC. & REM. CODE § 6.001 applies to county commissioners);

Public Util. Comm’n v. Coalition of Cities for Affordable Util. Rates, 776

S.W.2d 221, 222 (Tex. App—Austin 1989, no writ) (holding that, when a

state commission has the right under section 6.001 of the Texas Civil

Practice and Remedies Code to supersede an order, the trial court

cannot deny suspension of a temporary injunction). Therefore, Judge

Wood abused her discretion by denying Judge Henry’s request to stay

the enforcement of the temporary injunction. See, e.g., Dallas, 24

S.W.3d at 918 (rejecting arguments that trial court had discretion to

deny government entities’ request to stay temporary injunction).                       3   As



3 While this ground alone is sufficient to warrant a stay from this Court, in an abundance of
caution, appellant sets forth the additional bases to support temporary relief and the
compelling circumstances which establish the necessity of the requested stay from this
Court. See TEX. R. CIV. P. 29.3; Lamar Builders, Inc. v. Guardian Savings & Loan Assoc.,
786 S.W.2d 789, 790-91 (Tex. App.—Houston [1st Dist.] 1990, no writ).


                                             7
such, an immediate stay of the temporary injunction by this Court is

required in order to avoid contempt proceedings and to avoid further

political discord.

 AN EMERGENCY STAY OF THE TEMPORARY INJUNCTION IS NECESSARY

A.    The temporary injunction attempts to order Judge Henry
      to obtain results that he has no lawful ability to achieve.

      Judge Henry is without authority to unilaterally (i) re-establish

the Justice Administration Department, (ii) recreate the Director of

Justice   Administration    position       (but   with   fewer   duties   and

responsibilities than it previously had), (iii) reinstate Ms. Quiroga to the

position of Director of Justice Administration, and (iv) amend the

budget to transfer funds into the Department of Justice Administration

in order to pay Ms. Quiroga the salary ordered by the trial court. See

Canales v. Laughlin, 214 S.W.2d 431, 455 (Tex. 1948) (“[T]he individual

commissioners have no authority to bind the county by their separate

action.”); Nueces Cnty. v. De Pena, 953 S.W.2d 835 (Tex. App.—Corpus

Christi 1997, no writ) (same). The commissioners court, as a whole, is

charged with the crucial responsibility of setting the annual county

budget and may spend county funds only “in strict compliance with the

budget.” TEX. LOCAL GOV’T CODE § 111.070; see also id. §§ 111.003,

                                       8
111.0675; Gattis v. Duty, 349 S.W.3d 193, 203 (Tex. App.–Austin 2011,

no pet.) (providing that the commissioners court may authorize an

amendment to the original budget only after compliance with the strict

procedures set forth by statute). It is worth noting that a failure to

adhere to the statutory budget requirements would subject the

commissioners court to legal action by the taxpayers or the county

itself. See Gattis, 349 S.W.3d at 204-05.

     Again, Judge Henry possesses only one vote among the five-

member commissioners court. See TEX. GOV’T CODE § 551.001, et seq.;

TEX. LOCAL GOV’T CODE § 81.001, et seq. It is axiomatic that each

member of the commissioners court must exercise his or her own

independent judgment in voting on county matters and that Judge

Henry alone cannot act for Galveston County. See Rowan v. Pickett, 237

S.W.2d 734, 738 (Tex. Civ. App.—San Antonio 1951, no writ)

(“Furthermore, the individual commissioners have no authority to

bind the county by their separate action. This requirement is not

formal. It is substantial . . . that the members may have the benefit

of the knowledge and opinions of the other members . . . .”); cf.

Canales, 214 S.W.2d at 454 (Although commissioners are elected by


                                     9
precinct, the “court is manifestly a unit, and is the agency of the whole

county.’”) Thus, even if Judge Henry complies with the temporary

injunction by setting the relevant issues on the commissioners court’s

agenda and personally voting as ordered by the trial court, the

remaining commissioners are not bound by the temporary injunction; of

course, each commissioner, in exercising his independent discretion to

vote in the best interest of the taxpayers, could reject the directives

placed on Judge Henry by the temporary injunction.

     Moreover, the nonparty commissioners cannot be forced to comply

with such order by threat of contempt. See Ex Parte Davis, 470 S.W.2d

647, 649 (Tex. 1971) (observing that injunctions are in personam in

nature and thus not enforceable against nonparties to the action);

accord TEX. R. CIV. P. 683 (providing that an injunction “is binding only

upon the parties to the action, their officers, agents, servants,

employees, and attorneys, and those persons in active concert or

participation with them who receive actual notice of the order”). As a

matter of law, the commissioners are not the “agents” “servants” or

“employees” of the County Judge for which they can be held bound to




                                   10
the terms of the temporary injunction. Indeed, each commissioner is an

independent elected official. TEX. CONST. art. V, § 18(b).

     Judge Henry is simply without the ability to comply with the

temporary injunction. He lacks the authority—unilaterally—to do what

he is ordered to do under the temporary injunction. Because compliance

is impossible, the specter of contempt looms large over Judge Henry, a

stay of the temporary injunction should be granted. Further, a stay of

the temporary injunction is essential in order to avoid further political

rancor and discord among the Administrative Judges and the County

Judge while this issue is resolved through this appeal. See In re

Sheshtawy, 154 S.W.3d 114, 124-25 (Tex. 2004) (providing that courts of

appeals “retain[] overarching power to stay any actions of the trial court

… that may interfere with its jurisdiction or the subject matter of the

appeal”).

B.   The temporary injunction does not maintain the status
     quo.

     Although the trial court’s rationale for entering the temporary

injunction was to maintain the status quo, the temporary injunction

does not preserve the status quo. The status quo is simply not preserved

by the mandatory injunction which: (i) reinstates Ms. Quiroga to the

                                    11
position of Director of Justice Administration, which she last held

eleven months ago, (ii) orders that the legislative branch duties

previously part of that position be excised from the duties of the

position, and (iii) orders that Ms. Quiroga be paid the same salary she

previously was paid as if the job duties and responsibilities remained

the same. See Pharaoh Oil & Gas, Inc. v. Ranchero Esperanza, Ltd., 343

S.W.3d 875, 883 (Tex. App.—El Paso 2011, no pet.) (“A temporary

mandatory injunction changes the status quo.”). Thus, the temporary

injunction issued against Judge Henry, in addition to being impossible

to comply with, does not maintain the status quo.

C.   The important constitutional issues and political discord
     arising from this dispute compel the issuance of a stay by
     this Court.

     Finally, the issues present here raise serious questions of

constitutional significance relating to the Separation of Powers Doctrine

and the relationship between the legislative branch of government

(commissioners court) and the judicial branch of government (the

Administrative District Judge of Galveston County), which compel the

issuance of stay of the subject temporary injunction. The Texas

Supreme Court has made clear that when, as in this case, a temporary



                                   12
injunction of a trial court raises important constitutional and political

questions that have potential statewide implications, a stay of the

injunction during the pendency of the appeal is warranted. See

Republican Party of Tex. v. Dietz, 924 S.W.2d 932 (Tex. 1996) (staying

trial court’s temporary injunction that prohibited a political party from

refusing to provide a booth at the parties’ convention due to the

important constitutional and political issues presented); see also Special

Order, In re State of Texas, Cause Nos. 15-0139 (Tex. Feb 19, 2015)

(granting emergency stay motion regarding county clerk’s duty to

enforce Texas marriage laws); Special Order, In re State of Texas, Cause

Nos. 15-0135 (Tex. Feb 19, 2015) (same). Accordingly, the important

constitutional issues giving rise to this interlocutory appeal, and the

current rancor and political discord, further compel the issuance of a

stay order from this Court. 4

                   CONCLUSION AND REQUEST FOR RELIEF

         For these reasons, Judge Henry requests this Court to issue a stay

of enforcement of the temporary injunction from which this appeal is




4   Supra FN 1.


                                      13
taken. Judge Henry further requests all other relief to which he may be

entitled.

                                   Respectfully submitted,


                                      /s/ Edward L. Friedman
                                   Edward L. Friedman
                                   Texas Bar No. 07462950
                                   efriedman@bakerlaw.com
                                   BAKERHOSTETLER LLP
                                   811 Main Street, Suite 1100
                                   Houston, Texas 77002
                                   Telephone: 713.751.1600
                                   Facsimile: 713.751.1717

                                   James P. Allison
                                   Texas Bar No. 01090000
                                   j.allison@allison-bass.com
                                   J. Eric Magee
                                   Texas Bar No. 24007585
                                   e.magee@allison-bass.com
                                   Phillip Ledbetter
                                   Texas Bar No. 24041316
                                   p.ledbettcr@allison-bass.com
                                   ALLISON, BASS & MAGEE, L.L.P.
                                   A.O. Watson House
                                   402 W. 12th Street
                                   Austin, Texas 78701
                                   Telephone: 512.482.0701
                                   Facsimile: (512) 480-0902

                                   Attorneys for Appellant




                                  14
                    CERTIFICATE OF COMPLIANCE

     As required by the Texas Rules of Appellate Procedure, I certify
that I have notified or made a diligent effort to notify all parties by
expedited means (such as by telephone or fax) that this motion for
temporary relief has been or will be filed.

                                    /s/ Edward L. Friedman
                                Edward L. Friedman




                                  15
                      CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the foregoing
document has been served to the following parties on this the 6th day of
June, 2015, in accordance with the Texas Rules of Civil Procedure.


                                     /s/ Edward L. Friedman
                                 Edward L. Friedman




                                  16
Exhibit A
