                                                                                        ACCEPTED
                                                                                    01-15-00583-CV
                                                                         FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                               9/24/2015 8:27:13 PM
                                                                              CHRISTOPHER PRINE
                                                                                             CLERK

                No. 01-15-00583-CV

    In the First Court of Appeals at Houston, Texas      FILED IN -
                                                1st COURT OF--APPEALS
                                                                          - ----
                                                    HOUSTON,            -
                                                                     --- TEXAS
                                                           - - ----ID K ------
                                                9/24/2015
                                                        - 8:27:13
                                                         -                  -- PM
                                                    ---- VO ------
THE HONORABLE MARK HENRY,COUNTY                 CHRISTOPHER
                                              JUDGE      OF         --       A. PRINE
                                                             ----
                                                       ----Clerk
           GALVESTON COUNTY,
                     Appellant

                          v.                             FILED IN
                                                  1st COURT OF APPEALS
                                                      HOUSTON, TEXAS
                                                  9/24/2015 8:27:13 PM
         THE HONORABLE LONNIE COX,                CHRISTOPHER A. PRINE
                                                          Clerk
                      Appellee


        From the 56th Judicial District Court of
    Galveston County, Texas, Cause No. 15CV0583


     REPLY BRIEF OF APPELLEE
       THE HON. LONNIE COX




                                                  Mark W. Stevens
                                                   TBN 19184300
                                                     PO Box 8118
                                              Galveston, TX 77553
                                                     409.765.6306
                                                 Fax 409.765.6469
                              Email: markwandstev@sbcglobal.net
                         Counsel for Appellee The Hon. Lonnie Cox




                           1
                             Contents
Authorities………………………………………………………………..………3
Issues Presented…………………………………………………………..………9
Nature of the Case…………………………………………………………..…….9
Trial Court Information……………………………………………………………9
Course of Proceedings…………………………………………………………….9
Trial Court Disposition…………………………………………………………...10
Facts…………………………………………………………………..…………..11
Summary of the Arguments……………………………………………………….20
Arguments and Authorities………………………………………………………..21
   “Mootness” (Responsive to Brief, p. 17)……………………………..……21
   Subject Matter Jurisdiction (Responsive to Brief p. 20)……………..…….27
   Legislative Immunity (Responsive to Brief p. 24)……………………...….29
   No “Indispensable” Parties (Responsive to Brief p. 27)…………..……….31
   Supervisory Jurisdiction (Responsive to Brief p. 30)…………...…………33
   The Bond, the Writ and Judicial Defiance (Brief, p. 37)…………………..36
   Irreparable Harm (Responsive to Brief, p. 45)……………………………..41
Conclusion………………………………………………………………………..42
Prayer…………………………………………………………………..…………42
Signature………………………………………………………………………….43
Certificate of Compliance…………………………………………………………43
Certificate of Service …………………………………………………………..…44




                                 2
                              AUTHORITIES

                                   Cases


Abbott v. Pollock, 946 S.W.2d 513 (Tex. App.—Austin 1997, writ denied)……..3

Andrade v. Venable, 372 S.W.3d 134, 137 (Tex. 2012)………………………….28

Associated Press v. Cook, 17 S.W.3d 447
(Tex. App.—Houston [1st Dist.] 2000, no pet.) ………………………………….30

Astoria Industries v. SNF, Inc., 223 S.W.3d 616
(Tex. App.—Fort Worth 2007, pet. denied)…………………..………………….24

Bartlett v. Cinemark USA, Inc., 908 S.W.2d 229
(Tex. App.—Dallas 1995, no writ)………………………………………………30

Bay Fin. Sav. Bank v. Brown, 142 S.W.3d 586, 590-91
(Tex. App.—Texarkana 2004, no pet.)……………………………………………39

Bayoud v. Bayoud, 797 S.W.2d 304, 312 (Tex. App.—
Dallas 1990, writ denied)…………………………………………………………40

Benavides Independent School District v. Guerra, 681 S.W.2d 246
(Tex. App.—San Antonio 1984, writ ref’d. n.r.e.)……………………………..…35

Bogan v. Scott-Harris, 523 U.S. 44 (1998)………………….………..…………..30

Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002)…………………………41

Commissioners Court of Lubbock Co. v. Martin, 471 S.W.2d 100
(Tex. App.—Amarillo 1971, writ ref’d. n.r.e.)……………………………………22

Commissioners Court of Shelby County v. Ross, 809 S.W.2d 754
(Tex. App.—Tyler 1991, no writ)………………………………………….…….35

Cooper v. Texas Gulf Industries, 513 S.W.2d 200 (Tex. 1974)……..…………31 ff

Cozzo v. Tangipahoa Parish Council, 279 F.3d 273 (5th Cir. 2002)………..…….30

                                     3
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299 (Tex.2008)……………..…28

District Judges of the 188th Judicial District v.
County Judge Gregg County, Texas, 657 S.W.2d 908
(Tex. App.—Texarkana 1983, writ ref’d. n.r.e.)…………….…………………..22

Diversified, Inc. v. Turner, 650 S.W.2d 175 (Tex. App.—
Houston [14th Dist.] 1983, no writ)………………………………………………39

Ector County v. Hollman, 901 S.W.2d 687, 691 (Tex. App.—
El Paso 1995, no writ)……………………………………………..……………..27

Ector County v. Stringer,843 S.W.2d 477 (Tex. 1992)…………………………..34

Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979)…………………..…23

Ex parte Barnett, 600 S.W.2d 252(Tex.1980)………………………….…………37

Ex Parte Johnson, 654 S.W.2d 415 (Tex. 1983)………………………………….33

Ex Parte Lesher, 651 S.W.2d 734 (Tex. 1983)………………………………...…39

Ex parte Pryor, 800 S.W.2d 511(Tex.1990)…………………………………...…37

Finance Commission of Texas v. Norwood, 418 S.W.3d 566 (Tex. 2013)…….…27

Goodwin v. Goodwin, 456 S.W.2d 885 (Tex. 1970)…………………………...…38

Guerra v. Brumlow, 630 S.W.2d 425, 430 (Tex. App. –
San Antonio 1982, no writ)……………………………………………….………32

Hays County v. Hays County Water Planning Partnership,
106 S.W.3d 349 (Tex. App.—Austin 2003, no pet.) …………………….....……32

Hughes v. Tarrant County, 948 F.2d 918 (5th Cir. 1991)…………………………30

Indian Beach Property Owners’ Assn. v. Linden, 222 S.W.3d 682
(Tex. App.—Houston [1st Dist.] 2007, no pet.) …………………………………..31


                                   4
In Re Mott, 137 S.W.3d 870 (Tex. App.—Houston [1st Dist.] 2004)……………33

In Re Reed, 901 S.W.2d 604 (Tex. App.—San Antonio 1995)…………..……36 ff

Intercontinental Terminals Co. v. Vopak N. Am., Inc.,
354 S.W.2d 887, 899 (Tex. App.—Houston [1st Dist.]
2001, no pet.)………………………………………………………….…………41

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)……………………….……28

Mays v. Fifth Circuit Court of Appeals, 755 S.W.2d 78 (Tex. 1988)…………….25

Minton v. St. Bernard Parish School Board, 803 F.2d 129
(5th Cir. 1985)………………………………………………..……………………26

Mokwa v. City of Houston, 741 S.W.2d 143 (Tex. App.—
Houston [1st Dist.] 1987, writ denied)……………………………….………..34, 35

Nueces County v. De Pena, 953 S.W.2d 835 (Tex. App.—
Corpus Christi 1997, no pet.)……………………………………………………..32


Randall County Commissioners Court v. Sherrod,
854 S.W.2d 914 (Tex. App.—Amarillo 1993, no pet)………………………...….34

Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App.—
Eastland 1978, writ ref’d n.r.e.)…………………………………………...………36


Save Our Springs Alliance, Inc. v. City of Dripping Springs,
304 S.W.3d 871 (Tex. App.-Austin 2010, pet. denied)………………………..….28

Rubin v. Gilmore, 561 S.W.2d 231 (Tex. Civ. App.—Houston
[1st Dist.] 1977, no writ)……………………………………………………......…31

Schlafly v. Schlafly, 33 S.W.3d 683 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied)……………………………….…………………….32

Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16 (Tex. App.—
Houston [1st Dist.] 1988, no writ)…………………………………………………25

                                    5
Tuma v. Kerr County, 336 S.W.3d 277(Tex. App.—
San Antonio 2010, no writ )………………………………………………………28

Vondy v. Commissioners Court of Uvalde County,
620 S.W.2d 104 (Tex. 1981)…………………...………………..……………...29 ff

Wilchester West Concerned Homeowners LDEF, Inc. v.
Wilchester West Fund, Inc., 177 S.W.3d 552
(Tex. App.—Houston [1st Dist.] 2005, pet. denied)…………………..…………31


Wojcik v. Wesolick, 97 S.W.3d 335, 340 (Tex. App.—
Houston [14th Dist. 2003, no writ)……………………………………………..…33

Williamson County v. Heckman, 369 S.W.3d 139 (Tex. 2012)……………..……25

                         Statutes and Rules
Senate Bill (SB) 1913…………………………………….…………………..passim

Texas Local Government Code Sec. 151.001, 152.004………………….….28, 41

Texas Rule of Civil Procedure 39……………………………...……………….20 ff

Texas Rule of Civil Procedure 66, 67..………………………………..…………32

Texas Rule of Civil Procedure 67………………………………………………..32

Texas Rule of Civil Procedure 683……………………………………………..40 ff

Texas Rule of Civil Procedure 684…………………………………….……….38 ff

Texas Constitution art. II, Sec. 1………………………………………….… passim

Texas Constitution, art. V, Sec. 8………………………………………….…passim




                                 6
                                                     Treatises

Annot. 59 A.L.R.3d 569, Inherent Power of Court to
Compel Appropriation or Expenditure of Funds
for Judicial Purposes.................................................................................................3




                                                          7
                               ISSUES PRESENTED

     Reply Issue 1—The new amendments to Section 75.401 of the Texas
Government Code do not make the Trial Court’s Temporary Injunction
Moot on appeal (Responsive to Appellant’s Issue 1)

       Reply Issue 2—The trial court’s temporary injunction is not void because
the trial court had subject matter jurisdiction under Tex. Const. art. V, Sec. 8, and
any challenge to subject matter jurisdiction was waived in open court. (Responsive
to Appellant’s Issue 2).

       Reply Issue 3—The trial court’s temporary injunction is not void because
the trial court validly exercised its supervisor jurisdiction under Tex. Const. art. V,
Sec. 8.(Responsive to Appellant’s Issue 3).

      Reply Issue 4—The trial court’s order is not void because it complied with
the mandatory requirements for a temporary injunction under Rules 683 and
684.(Respnsive to Appellant’s Issue 4).




                                           8
TO THE HONORABLE FIRST COURT OF APPEALS:

                                 Nature of the Case

      This case asserts the supervisory jurisdiction of the district courts over

commissioners courts under Texas Constitution art.V, Sec. 8, and further the

inherent power of courts of law to compel reasonable and adequate funding for

court personnel. The TRO and Temporary Injunction were necessary to prevent

Appellant from arrogating that power.

                              Trial Court Information

      The hearings below were conducted before the Hon. Sharolyn Wood, visitng

by assignment.

                               Course of Proceedings

      There is presently pending before this court a parallel proceeding, i.e.,

Petition for Writ of Injunction, No. 01-15-00797-CV, In Re Lonnie Cox.

      Before the instant lawsuit was filed, Appellee Cox issued an order of

September 24, 2014, ordering Appellant Henry to restore Ms. Quiroga to her post

as Director of the Department of Justice Administration. An Attorney General’s

opinion was requested on the issue of whether the judges or the commissioners

could terminate or replace the director. All of the County Commissioners joined in

an unsuccessful Mandamus action in the Court of Appeals (No. 01-14-00820-CV)

and later before the Texas Supreme Court (15--00445).


                                          9
      Suit was filed when actins was threatened on June 9, 2015 to formally

establish an alternate Justice Administration Department which would deprive the

trial judges of control of those positions. The resulting temporary injunction order

was not confined to the September 24, 2014 order of Appelle Cox, but also

effectively implemented the inherent power of the courts to select judicial

personnel and to have them reasonably funded by the Commissioners’ Court.

                              Trial Court Disposition

      The trial court’s temporary injunction restored the status quo by directing

that Ms. Quiroga, who had already resumed her duties, be provided office space,

equipment, and her previous salary from June 8, 2015. The trial court also made

other distinct orders that no personnel of the Justice Administration Department

should be relocated or reassigned.




                                      FACTS

                        Duties and Selection of the Director


                                         10
   The duties of the Director were overwhelmingly judicial in nature. See, e.g,,

PX-2, a job description posted shortly after the purported firing of Director

Quiroga.

           Appellant confuses funding with establishment or control of a

position. There is no question that the position of Director was funded by the

Commissioners court. However, in each instance the Director was nominated,

i.e., selected, by the trial judges.

           Because of Appellant’s argument about the sanctity of the fiscal

authority of the commissioners court, see below at p. 27, it is important to note

that at no time did the trial court presume to determine what a reasonable salary

is, was or should be. Instead, the trial judge simply directed that Ms. Quiroga be

restored to the same salary or salary structure that she had determined her pay

in July of 2014, Temporary Injunction, CR 239.

           That salary structure was not determined by the trial judge—it was

previously set by the commissioners court, and was never varied until Appellant

Henry tried to reconstitute the duties of the Justice Department and the salary

structure as a means of controlling the selection process.

           There was no claim that Ms. Quiroga’s salary was unreasonably high

before July 24, 2014. Before that date, Appellant Henry had never

recommended any change in her salary or duties. When “finalists” were being


                                       11
   interviewed by Appellant’s staff, the same salary range was being discussed,

   any difference being due only to longevity factors. 3 RR 52. Before July of

   2014, there had never been a perceived need to disestablish the department of

   Justice Administration. 3 RR 53.

             At Brief p. 3, Appellant seems to invoke a “waiver” argument (“…As

   the years went by…”) and numerous organizational charts, as if demonstrating

   a course of dealing or usage in trade proof . That effort was firmly rejected by

   the trial court, along with the various organizational charts that purported to

   revoke the Texas Constitution. As the court stated later during arguments, “I

   will tell you, I find that to be a spurious argument….” 5 RR 40 (Judge Wood).

      The request for an attorney general’s opinion, DX-32, OCA Letter of

September 23, 2014, appears to have been the inspiration for the email that HR

Director Peri Bluemer sent, moving “forward” the finalist interviews to September

24—on one day’s emailed “notice. See PX -5, i.e., to “get the jump” on both the

trial judges and any forthcoming AG opinion.

      At p. 5, n. 3, Appellant states that the AG declined to issue a request

“….due to the pendency of the mandamus petition.” The Brief fails to note that

Appellant’s counsel filed a mandamus petition on October 8, 2014. Then, on

October 10, 2014, Appellant’s counsel in the Mandamus proceeding sent a letter to

the attorney general, advising of the recently filed mandamus proceeding and


                                          12
suggesting in the final paragraph, first page, that the AG’s office “…does not issue

….opinions on matters that are involved in litigation…” DX-39. That letter was

not copied to Judge Cox or anybody else. Four days alter, the AG’s office advised

that in view of the pending mandamus, the requested opinion would not be issued.

DX-40.


      In response to the judges’ suggested pay scale—and without notifying the

judges-- Henry and the other Commissioners directed their “Chief of Staff” Tyler

Drummond and “HR” Director Peri Bluemer to conduct a “study”. The trial court

(Temporary Injunction, CR 329, p. 5) found that Judge Henry had used a salary

survey process which “…was arbitrary and designed to orchestrate the salary of

the replacement administrator for the courts at the lowest possible level,

undermining the independence of the judiciary.”



      That finding was well supported by the evidence. The trial judges were not

consulted in screening some 143 applications for the post of director. When the

judges were “invited to interview” the finalists, it was under such short notice and

under such circumstances(during jury trial periods) as to virtually guarantee that

the judges would not be able to attend. See, e.g., PX -4 (HR email of 9/22/14,

stating that interviews might be in the following week) and PX -5 (HR email of

9/23/14, moving the “interviews” forward to the next day, September 24). It was
                                         13
that attempt at a “done deal” that prompted Appellee Cox to issue the September

24 order.

      The screening of the 143 applicants culled anyone with a hint of

independent integrity. Excluded from consideration were two assistant district

attorneys and one former judge—apparently because all had valid law licenses.

(Judge Wood, 4 RR at 197—“I heard-- Valid law licenses and not qualified.”)

      One of the three “finalists” was an attorney who was under a probated

suspension from the State Bar of Texas through the year 2025. PX-17 (State Bar

Record). 4 RR 44; 4 RR 167-68. See Temporary Injunction, CR 329, p. 3,

describing the vetting process as:

             “…eliminating applicants familiar with the Galveston County Courts
             and attorneys in good standing with the State Bar, while including a
             wholly unacceptable applicant who could not meet the standards of
             integrity necessary in such a sensitive position due to addition to
             drugs and whose license had been suspended by the State Bar.”




                                         14
                   Attempts at Negotiation (The “Workaround”)

      The attempts at negotiation in May of 2015 failed because Count Judge

Henry and the other commissioners apparently felt that they were at liberty to

accept one half of a settlement offer while rejecting the other half.

      The three local administrative judges submitted a proposal (DX-44) on May

12, 2015, requesting a salary range for a modified Director’s position of $85,000 to

$120,000. That proposal would have taken some non-judicial duties out of Justice

Administration and transferred them to the Commissioners Court and County

Judge Henry.

      The commissioners purported to accept the first half of the offer, but on

condition that the judges agree to their reduced salary range. As noted above, that

“range” would have reduced Ms. Quiroga’s salary from about $113,000 annually

to about $63,695—a 40% pay cut. Appellant’s Brief, App. G.

      Appellant’s Brief, p. 10 asserts that the salary range adopted by the

Commissioners was “Based upon a comprehensive analysis of other administrative

positions in Galveston County and other counties….” The “analysis” was

blatantly selective. For instance, one of the comparator jurisdictions was Cameron

County, whose per capita annual income is about 46% that of Galveston County. 4

RR 29 (HR Director Bluemer) , PX -22 (Census Data). Moreover, Galveston has

to meet the nearby competition and had lost a previous Director (Ed Wells) to
                                          15
Harris County in Year 2000. 4 RR 35 (Cox Testimony; Wells left in 2000 and was

succeeded by Ms. Quiroga).

      In the course of closing arguments, the trial judge took particular notice of

the use of Cameron County:

                   They did not do themselves well with the witness and the
                   position that Cameron County is an appropriate county with
                   which to judge Galveston…Galveston is not Brownsville.

5 RR 53 (Judge Wood).

      The mandamus, No. 01-14-00820-CV, was overruled without opinion on

February 4, 2015. Appellant and the other county commissioners all joined in a

Motion for Rehearing and Rehearing En Banc, which was denied on April 14,

2015. Justice Massengale’s opinion, concurring in the denial of en banc

reconsideration, pointed out the obvious fact that there had been no hearing,

evidence and no appealable order. Opinion Admitted as D-43.

      After denial of en banc rehearing of the mandamus (April 14, 2015), the

Commissioners Court once again hired Attorney James Allison per the minutes of

the commissioners court meeting of May 26, 2015. DX- 56, page 8 of 12, to file a

mandamus with the Texas Supreme Court and undertake other litigation

“…necessary to restrain interference [sic] of the district court in the lawful

exercise of the Commissioners Court’s authority.” .


                                          16
      On May 29, eight of the ten judges signed an order, DX 46, directing that

Bonnie Quiroga return to work on June 8, 2015. That document was emailed to

County Judge Henry on Friday, June 5. In immediate response, Appellant Henry

first tried to get the elected sheriff of Galveston County, Henry Trochessett, to

serve a “trespass” warning on Ms. Quiroga, an obvious prelude to having her

arrested. See DX-19, Trespass Warning, signed by Appellant Henry “on behalf of

the owner, Galveston County, Texas.”

      Next, Appellant Henry tried to get the District Attorney, the Hon. Jack

Roady, to have Ms. Quiroga prosecuted. DA Roady declined, noting perhaps

diplomatically that Ms. Quiroga would have an “affirmative defense” if such a case

were bought. Testimony of Mark Henry, 3 RR 71.

      Simultaneously, Judge Henry simply tried to lock Ms. Quiroga out. The

“HR” director, Peri Bluemer, called the “facilities” department to have the lock to

Ms. Quiroga’s office changed on Friday evening, June 5. 4 RR 184. That call was

made after 5:00 pm. 4 RR 189. Ms. Bluemer claimed that she had not been

instructed to do so by anyone. 4 RR 185.

      Next, Appellant Judge Henry sent his own “Order”, dated [Sunday], June 7,

2015, with a declaration that:

                   Judicial jurisdiction and power in this subject matter, if any, has
                   attached and remains exclusively in this court as the court with
                   dominant jurisdiction. The official actions of this Court
                                         17
                    cannot be modified or amended by any Galveston County Court
                    of co-ordinate power, including any district or statutory
                    county Court. [Emphasis Added].

See and compare Tex. Const. art. V, Sec. 8.

      County Judge Henry’s June 7 “Order” concluded by declaring that:

              (1)“Bonnie Quiroga is not an employee of Galveston County;
              (2) State District Judge Lonnie Cox did not have jurisdiction
              concerning this mater to issue the Septemer 24, 2014 Order and
              accordingly that order is void; and
              (3) The eight district and county court judges who promulgated the
              May 29, 2015 “Notice concerning this matter did not have
              jurisdiction to enter any orders concerning this matter and
              accordingly, to the extent that the notice may be construed as an order,
              that Order is void.” [Emphasis added]


      Ms. Quiroga did report for work on June 8, accompanied by Judge Cox,

District Judge John Ellisor, Probate Judge Kim Sullivan, and Sheriff Henry

Trochesset. When they got to that office, however, they discovered that the lock

had been changed. Sheriff Trochessett was able to open the door with his passkey.

4 RR 53-54.

      Undeterred, Appellant Henry caused the locks to be changed again on the

evening of Monday, June 8. 3 RR 80. As of the date of his testimony, June 21,

that door was still locked. 3 RR 94. Appellant justified his actions in denying the

                                          18
Sheriff a passkey because the building in question, the Galveston County Justice

Center at 600 59th Street, was not the “Courthouse”, which is at 722 Moody, i.e.,

the former courthouse. 3 RR 79.

       The next day, June 9, Appellant was in a meeting with other commissioners

from 1:30 p.m. to implement what would amount to the destruction of the Justice

Administration as a department selected by and responsible to the judiciary, and

would put a number of judicial functions directly under the control of the County

“Judge”, Appellant Henry. See Agenda, DX-49. The petition for TRO was filed

near the noon hour. County Judge Henry was served with a TRO twice—the

latter having a date properly affixed—and promptly ignored it. Because the TRO

mentioned the “June 9” agenda, the same items were re-posted for the agenda of

June 13—a step which Appellant took on “upon advice of counsel”. 3 RR 87.

      The TRO set a hearing date of June 19,2015. Appellant Henry and all other

commissioners filed a mandamus petition in the Texas Supreme Court, No. 15—

00445. That petition was denied by the Texas Supreme Court on the morning of

June 19.




                                         19
                               Summary of the Arguments

      This Court must exercise its inherent authority to punish defiance by elected

judicial officials. County Judge Henry—as a subordinate judge—was directly

bound by the Order of July 6, 2015. As such, he should either be disciplined by

this court or referred back to the trial court for appropriate proceedings.

      Recent amendments to Section 75.401 of the Texas Government Code do

not support Appellant’s claim that this appeal or the underlying case have become

moot. Amended Section 74.401 cannot be constitutionally construed to give

Appellant unfettered and arbitrary power to set compensation for those performing

judicial duties.

      The trial court’s temporary injunction is not void because the trial court had

subject matter jurisdiction.

      The trial court’s temporary injunction order is not void because the trial

court validly exercised its general supervisory control jurisdiction under Tex.

Const. art. V, Sec. 8. The trial court only reversed unlawful actions and only

required the expenditure of funds at rates which had already been appropriated by

previous commissioners, including Appellant himself.

      Texas law no longer recognizes the concept of “indispensable” parties. Any

objection under TRCP 39, dealing with parties needed for a just adjudication, was

waived because the issue was not raised below by special exception.


                                          20
                       ARGUMENTS AND AUTHORITIES

                       Mootness—Responsive to Brief p. 17

      This case is not moot. The recent amendments to Section 75.401 only kick

the “constitutional can” down the road.

      Appellant’s “mootness” claim is based on a mis-reading of SB 1913 and

statutory construction principles. Appellant suggests that the phrase “set by the

commissioners court” –read in isolation--confers unbridled authority to dictate to

the judiciary by abusing the Power of the Purse. It does not.

      Although SB 1913 clearly gives Appellee Cox and the other judges the

power to establish the post of director of justice administration—by whatever

name-- it does not give Appellant or the Commissioners Court the exclusive

power to arbitrarily fix their compensation—or to rig compensation so as to

control the selection process, as found by the trial court. Temporary Injunction,

CR 329. It could not constitutionally do that.

      SB 1913(d) as enrolled and passed states:

             A court administrator is entitled to reasonable compensation as
             determined by the judges served and in the salary range for the
             position, as set by the commissioners court.
      Statutes must be construed to reach a constitutional result. Texas

Government Code Sec. 311.021(1). The phrase “as set by the commissioners



                                          21
court” can be read only to state the obvious-- that the commissioners court must be

the entity which appropriates the funds and approves the vouchers.

      The phrase is also constitutionally superfluous. Under the Texas

Constitution, the commissioners court must approve all appropriations. But there

are constitutional boundaries on the Power of the Purse. The commissioners may

not arbitrarily withhold funding or set funding at unreasonably low rates. Vondy v.

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

Judges of the 188th Judicial District v. County Judge Gregg County, Texas, 657

S.W.2d 908 (Tex. App.—Texarkana 1983, writ ref’d. n.r.e.).

      In Commissioners Court of Lubbock Co. v. Martin, 471 S.W.2d 100, 109

(Tex. App.—Amarillo 1971, writ ref’d. n.r.e.) the court held that the phrase

“advice and consent of the commissioners court” did not give the Commissioners’

court a veto over the judiciary:

             “….Thus, ‘advice and consent of the commissioners court’
             demonstrably does not mean that the commissioners court could
             capriciously or arbitrarily ignore the appointment and setting up
             compensation for probation personnel by the district judge. To give
             that phrase converse meaning would nullify the authority given by the
             legislature to the district judges. The construction would render the
             commissioner’s court the sole arbiter of the necessity for and
             appointment of probation personnel, if any it chose to approve, and
             the designation of their compensation contrary to the statutory


                                         22
             expression. Of course, the effect would be to render nugatory the
             express language of the statute.

471 S.W.2d at 108. The Lubbock County court continued:

             We have no doubt that a district judge has the implied power to
             appoint probation personnel and set their compensation in the event
             such action is essential to the continuing effective administration of
             the business of the court. But since we have sustained the actions of
             the defendant district judges on the basis of the constitutionality and
             construction empowering them to act, it is not necessary that we
             determine whether, under the facts in this case, the defendant district
             judges were or were not authorized to take the action they did under
             the implied powers of the judiciary.


471 S.W.2d at 110 [emphasis added].
      Lubbock County was cited with approval in Eichelberger v. Eichelberger,

582 S.W.2d 395(Tex. 1979).

      Judge Henry violated Texas Local Government Code Sec. 151.004 by

firing Ms. Quiroga and then by arrogating to himself and his staff the selection of

a successor. Judge Henry and his “staff” then compounded the harm by attempting

to cut the judges out of the selection process, and flimflamed the system by a

stacked salary review. As Visiting Judge Sharolyn Wood found:

             …Petitioner Cox has the probable right to recover relief in this suit in
             that Respondent Henry may not eliminate and attempt to control the


                                          23
             replacement of the administrator for the courts of Galveston County
             and, then, manipulate employment terms and applicants to replace the
             administrator position to eliminate suitable applicants.


CR 239 at 240.

      Appellant Henry also fails to read SB 1913(d) in connection with

Government Code Sec. 311.016(4): the phrase, “ ‘Is Entitled To’ creates or

recognizes a right.” The words “or recognizes” are crucial in this context. SB

1913 clearly recognizes and confirms the right of Ms. Quiroga or others in the

service of the district and county judges to reasonable compensation—and cannot

be read to allow the arbitrary setting of salaries so low as to control the selection

process. See Temporary Injunction of July 6, 2105, CR 243,Page 4.

      Beyond outright defiance of judicial orders, this case is about Appellant

Henry’s attempt to game the system by denying reasonable compensation, and

“agreeing” to a salary schedule set artificially low in order to control the selection

process. Resolution of that dispute resides with the trial court, which alone has

fact-finding capacity, and is beyond the jurisdiction of this court in the context of a

interlocutory appeal from a temporary injunction. See, e.g., Astoria Industries v.

SNF, Inc., 223 S.W.3d 616, 625 (Tex. App.—Fort Worth 2007, pet.

denied)(jurisdiction limited to reviewing those portions of trial court’s order

subject to interlocutory appeal).


                                          24
                    Capable of Repetition Yet Evading Review

      Even if SB 1913 somehow ended the current controversy—which it did

not—the dispute in this case would be capable of repetition yet evading review,

and thus not moot Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 18 (Tex.

App.—Houston [1st Dist.] 1988, no writ), i.e., where the challenged act is of such

short duration that the appellant cannot obtain review before the issue becomes, in

fact, moot. The time span necessary for Appellant to rekindle this dispute is 72

hours, i.e., the required interval for posting a commissioners court meeting to pass

a budget “amendment”. Nothing in the history of this case gives any assurance

that such maneuvers will not be tried.

                       Vindication of Constitutional Rights

      Texas courts now recognize a broader exception to mootness where cases

must be heard to vindicate constitutional rights. Williamson County v. Heckman,

369 S.W.3d 139, 148-49 (Tex. 2012). This case directly involves the

constitutional prerogatives of the trial judges, who have a well established right

to select judicial personnel and to have them reasonably compensated by the the

commissioners. Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d

104, 109-10 (Tex. 1981), Mays v. Fifth Circuit Court of Appeals, 755 S.W.2d 78,

80 (Tex. 1988)(Spears, J., concurring), Those rights are now statutorily

recognized in SB 1913(d)(“entitled to”), Texas Government Code Sec. 311.016(4,)


                                         25
but are challenged in this case by Appellant’s attempting to “rig” the

compensation structure so as to continue influencing the selection of highly

inappropriate personnel. Temporary Injunction, CR 239, 244, Para. 5:

             …the Drummond salary survey process was arbitrary and designed to
             orchestrate the salary of the replacement administrator for the courts
             at the lowest possible level, undermining the independence of the
             judiciary.



      In Williamson County v. Heckman, supra, the Texas Supreme Court stated:

             We adopt the federal exception to mootness for " inherently
             transitory" claims. As discussed above, Texas courts generally lack
             the authority to decide a case if it ceases to be " live" or if the parties
             no longer have a cognizable interest in the outcome of the case.
             However, we conclude that the " inherently transitory" claims
             exception, as described above, ensures that there remains a live
             interest between the class of affected individuals— thereby satisfying
             constitutional justiciability concerns. And, like the exception for
             claims that are " capable of repetition yet evading review," this
             exception also enables our courts to review claims of governmental
             deprivation of constitutional rights that might otherwise be
             unreviewable.

Heckman, supra, 369 S.W.3d at 148-49.

      The “live” class of affected individuals is much larger than the judges in

Galveston County. It potentially includes many or all of the trial judges in Texas’
                                           26
254 counties, all of whom sooner or later may lock horns with misguided or

misadvised commissioners. The tale is an old one. See, e.g., Vondy, supra (refusal

to set a constable’s salary); Mays, supra (refusal to grant a statutorily mandated

increase in court reporter fees); Randall County Commissioners Court v. Sherrod,

854 S.W.2d 914 (Tex. App.—Amarillo 1993, no pet)(DA complaining of

commssioners’ budget); Cf. Ector County v. Hollman, 901 S.W.2d 687, 691 (Tex.

App.—El Paso 1995, no writ) (noting potential for “political hijinks”).


                            Subject Matter Jurisdiction
                     (responsive to Appellant’s Brief, p. 20 ff)

                              “Standing” of Judge Cox

      Appellant argues that Judge Cox somehow lacks standing to enforce his own

decrees or to exercise constitutionally conferred “general supervisory power” over

the commissioners court, Tex. Const., art. V, Sec. 8. That argument puts standing-

- so to speak—on its head:


             [T]he principle of standing exists to protect the separation of powers,
             not to defeat it. Standing operates to prevent the Judiciary from
             exercising authority that belongs to other departments of government,
             not to deprive the Judiciary of its role in interpreting law, especially
             constitutional law. The requirement of standing cannot be used to alter
             the separation of powers.

Finance Commission of Texas v. Norwood, 418 S.W.3d 566, 581 (Tex. 2013)

                                          27
      Appellant at pp. 22-22 relies too heavily, on Tuma v. Kerr County, 336

S.W.3d 277, 280(Tex. App.—San Antonio, 2010, no writ), for the proposition that

Judge Cox needed to show particularized injury to seek relief. A plaintiff does not

need to establish paritcicularized injury when standing is conferred by statute.

Andrade v. Venable, 372 S.W.3d 134, 137 (Tex. 2012). Judge Cox’ standing is

even more fundamental—the Texas Constitution, art. V, Sec. 8, gives district

courts (and thereby judges) “general supervisory control” over commissioners

courts—and especially to correct violations of other law, e.g., Texas Local

Government Code Sec. 151.004.


      Judge Cox amply pleaded and proved “particularized injury” as that term is

used in determining standing. "A plaintiff must be personally aggrieved; his

alleged injury must be concrete and particularized, actual or imminent, not

hypothetical." DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, (Tex.2008). The

" irreducible constitutional minimum" of standing consists of three elements—

injury in fact; causal connection, and likelihood that injury will be redressed by a

favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992);

Save Our Springs Alliance, Inc. v. City of Dripping Springs,304 S.W.3d 871, 878

(Tex.App.-Austin 2010, pet. denied).




                                          28
       Director Quiroga was not the only party injured. Another distinct casualty

was the constitutionally grounded ability of judges to select competent personnel

and to have them adequately compensated, e.g., Vondy, supra and Mays, supra,

and not to have a defrocked lawyer crammed down their official throats as a

Director. The injury was directly traceable to the actions of Appellant Henry and

others, and the controversy actually accelerated during those hearings, e.g., the

“reassignment” of Deputy Clint Purcell,which threatened to derail the court’

program of monitoring probationers and those on bond for drug and alcohol abuse.

4 RR 189-90.


      The claim that Judge Cox had no “standing” would, if accepted, eviscerate

Texas Constitution art. V, Sec. 8, which gives the district courts general

supervisory power over commissioners courts. In rare instances, such as here,

even ex parte or sua sponte orders may be justified. Mays, supra.


                                Legislative Immunity

                           Responsive to Brief at p. 24 ff

      To assert “Legislative” immunity, a person must have been sued in his
individual capacity. , Camacho v. Samaniego, 954 S.W.2d 811, 824 (Tex.
App.—El Paso 1997, pet. denied); . Minton v. St. Bernard Parish School Board,
803 F.2d 129, 134 (5th Cir. 1985). At all times in this matter, County Judge Henry
has been sued in his “official” capacity.


                                            29
       Furthermore, legislative immunity is an affirmative defense which must be
pleaded or else it is waived. Cozzo v. Tangipahoa Parish Council, 279 F.3d 273,
283 (5th Cir. 2002). The Plea to the Jurisdiction, CR 78-92, discloses no such
affirmative defense or pleadings.
       Appellants claim of Legislative immunity fails under the two part test
established in Bogan v. Scott-Harris, 523 U.S. 44, 46 (1998) and Hughes v.
Tarrant County, 948 F.2d 918, 921 (5th Cir. 1991), generally applied by Texas
Courts.
       Legislative Facts—Under the first Hughes test, the inquiry is whether the
facts relied on to reach a decision are “legislative facts”, i.e., generalizations
concerning a policy or state of affairs. If so, the act is legislative; if not, the act is
administrative. See Associated Press v. Cook, 17 S.W.3d 447, 460 (Tex. App.—
Houston [1st Dist.] 2000, no pet.); Bartlett v. Cinemark USA, Inc., 908 S.W.2d 229,
236 (Tex. App.—Dallas 1995, no writ).
       Impact of the Action—The more narrow the impact, the less likely an act
will be “legislative” rather than administrative. If the action singles out specific
individuals and affects them differently from others, it is administrative.
Associated Press v. Cook, supra, 17 S.W.3d at 460; Bartlett, supra, 908 S.W.2d at
236; See Hughes, supra, 948 F.2d at 911. If an act merely enforces a preexisting
policy, act or law, it is not legislative. In this case, the “firing” of Ms. Quiroga
revoked the resolutions of about 15 earlier commissioner court salary
authorizations, and the subsequent attempt to dismantle the Justice Administration
department was an entire new—and constitutionally forbidden—agenda.




                                             30
                        There Are No Longer “Indispensable”
                              Parties In Texas Procedure
                             (Responsive to Brief, p. 27)

       The question of joinder of parties is not jurisdictional, and was waived by

failing to bring the matter to the attention to the trial court.

       The term “indispensable party” became largely obsolete when TRCP 39

was adopted, some 45 years ago:

              “One of the aims of the revised rule [39] was to avoid questions of
              jurisdiction….Contrary to our emphasis under Rule 39 before it was
              amended, today’s concern is less that of the jurisdiction of a court to
              proceed and is more a question of whether the court ought to proceed
              with those who are present…. “


Cooper v. Texas Gulf Industries, 513 S.W.2d 200, 203-04 (Tex. 1974).

       Compliance with Rule 39 is not jurisdictional, even in the context of a

Declaratory Judgment Action, e.g., Wilchester West Concerned Homeowners

LDEF, Inc. v. Wilchester West Fund, Inc., 177 S.W.3d 552, 558-59 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied); Indian Beach Property Owners’ Assn. v.

Linden, 222 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

       Nor does Rule 39 affect deprive a court of jurisdiction in an injunctive

proceeding. Rubin v. Gilmore, 561 S.W.2d 231, 233 (Tex. Civ. App.—Houston

[1st Dist.] 1977, no writ), citing Cooper.
                                             31
      The structure of Rule 39 makes it clear that it must be asserted at the trial

court level, or be waived. See, e.g., Guerra v. Brumlow, 630 S.W.2d 425, 430

(Tex. App. –San Antonio 1982, no writ), citing both Cooper and TRCP 97.

That feature prevents a litigant from simply “laying behind a log”—as in this case-

- and then trying to claim non-joinder as a jurisdictional bar, and an appellate

afterthought.



      At Brief, pp. 29-30, Appellant sidesteps the waiver issue by implying that

the “issue” of non-joinder had been raised. However, the reason for the trial

amendment following the conclusion of evidence, CR 247, was simply to conform

the pleadings to the evidence, which included events which occurred during the

hearings. TRCP 66, 67. See, generally,Schlafly v. Schlafly, 33 S.W.3d 683, 872

(Tex. App.—Houston [14th Dist.] 2000, pet. denied) on improper and misleading

briefing.


      The cases cited at Brief, pp. 28-29 are inapposite. Hays County v. Hays

County Water Planning Partnership, 106 S.W.3d 349 (Tex. App.—Austin 2003,

no pet.) was an appeal from a final judgment of injunction. The opinion dealt with

whether the actions of one commissioner might be ascribed to the County, and

determined that they could not.



                                          32
      Nueces County v. De Pena, 953 S.W.2d 835 (Tex. App.—Corpus Christi

1997, no pet.) merely held that the County Judge could not be ordered to attend an

“apex” mediation, since the Judge had no independent settlement authority and the

ADR statute provided no such authority.

      As the court is aware, all commissioners joined in a mandamus challenging

Judge Cox’s original orders, 01-15-00820-CV, and all but one are clearly are

aligned with County Judge Henry. Thus, the other commissioners are virtually

represented by Judge Henry and need not be formally joined. See Wojcik v.

Wesolick, 97 S.W.3d 335, 340 (Tex. App.—Houston [14th Dist. 2003, no

writ)(Brister, J., concurring).

      Finally, the defense of inability to comply is not a jurisdictional issue nor

one that cannot be ordinarily resolved by an appellate court. “The time and place

for testimony as to impossibility of compliance with the court’s order is in the trial

court where the matter is being considered.” Ex Parte Johnson, 654 S.W.2d 415

(Tex. 1983); In Re Mott, 137 S.W.3d 870 (Tex. App.—Houston [1st Dist.]

2004)(orig. proceeding).

      Given the current status of this litigation it is obvious that Appellant Henry

has not even tried to comply, and is not going to.




                                          33
           The Trial Court Validly Exercised its Supervisory Jurisdiction
                        Under Texas Const. art. V, Sec. 8
                            (Responsive to Brief, p. 30)

      Appellant paints a picture of a trial judge running amok, dictating ex

cathedra what a reasonable salary should be and generally trampling on his

constitutional turf.

      That did not happen. The trial judge did not compute a “reasonable” salary

out of whole cloth, as was the case in Ector County v. Stringer,843 S.W.2d 477

(Tex. 1992), where the trial arrived at a figure of $1,500 for past services.

      The trial court simply preserved the status quo ante by ordering that Ms.

Quiroga be paid the same salary that she made as of July of 2014. That salary

structure (a) had been approved by the commissioners court for years; (b) approved

by the same commissioners court for the 2014 budget; and (c) was the same salary

structure that was discussed in September of 2014 with Ms. Quiroga’s aspiring

replacements, i.e., the demonstratively unsuited “finalists.” 3 RR 24; 52-53.

       See and compare Randall County Commissioners Court v. Sherrod, 854

S.W.2d 914, 918-19 (Tex. App.—Amarillo 1993, no pet.)(injunction of prior

year’s salary schedule maintained status quo). See, also, Mokwa v. City of

Houston, 741 S.W.2d 143 (Tex. App.—Houston [1st Dist.] 1987, writ denied),


                                          34
where the Court of Appeals reversed and rendered a judgment in favor of a police

officer based upon previously adopted pay schedules. Mokwa was cited with

implicit approval by the Texas Supreme Court in Ector County v. Stringer, supra:

      For example, in Mokwa v. City of Houston…. a police officer sought to
      recover back pay from the city for services rendered in a job classification at
      a higher pay rate than her regular job classification. Id. at 143. The court in
      Mokwa stated that a trial court has jurisdiction to determine the amount of
      back pay due. Id. at 145. However, the principal issue in the case was
      entitlement to compensation at a pay level for a higher classification, for
      which the amount had been previously established by the governing
      body.

Ector County v. Stringer, supra, at 480 (emphasis added).

      Cf. Benavides Independent School District v. Guerra, 681 S.W.2d 246, 250

(Tex. App.—San Antonio 1984, writ ref’d. n.r.e.)(back pay during period when

parties were in negotiating stance preserved status quo).

      The reasoning of Hooten v. Enriquez, 863 S.W.2d 522 (Tex. App.—El Paso

1993, no writ), cited at Petition, p. 16, actually supports Appellee with special

force where the inherent powers of trial judges and the Separation of Powers

under art. I, sec. 2 of the Texas Constitution are involved, noting that a district

court may enjoin an act of a commissioner’s court that is performed arbitrarily,

capriciously, collusively, fraudulently, or in abuse of its discretion.” Hooten,

supra, 863 S.W.2d at 521.
                                           35
      Cf. Commissioners Court of Shelby County v. Ross, 809 S.W.2d 754 (Tex.

App.—Tyler 1991, no writ)(commissioners may determine number of deputies to

be appointed and their compensation, but have no absolute right to determine who

shall be appointed); Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App.—

Eastland 1978, writ ref’d n.r.e.)(commissioners court has no right to screen

applicants or to veto appointments made by the county clerk at various salary

steps); Abbott v. Pollock, 946 S.W.2d 513 (Tex. App.—Austin 1997, writ

denied)(Commissioners Court cannot terminate or appoint sheriff’s office

employee). See, generally, See, generally, Annot. 59 A.L.R.3d 569, Inherent

Power of Court to Compel Appropriation or Expenditure of Funds for Judicial

Purposes.


            THE BOND, THE WRIT—AND JUDICIAL DEFIANCE

                             (Resonsive to Brief, p. 37)

      This is no ordinary case, but one in which a subordinate judicial officer has

openly defied orders of judicially superior courts and has literally and explicitly

claimed to be superior to those courts—in effect defying the “general supervisory

control” established in Tex. Const. art. V, Sec. 8. See, In Re Reed, 901 S.W.2d

604 (Tex. App.—San Antonio 1995)(orig. proceeding), a district judge openly

defied an order to cease a jury trial. That judge was sanctioned following

evidentiary hearings:

                                          36
            This court recognizes that some of the procedures utilized in the
            present matter appear to be somewhat unusual. However, this court
            was faced with a situation apparently lacking in precedent--the refusal
            of a subordinate court to obey the direct order of a superior court..The
            action of Judge Reed--refusing to comply with an order of a superior
            court--is a proper subject of contempt because it is an act in disrespect
            of this court and which tends to bring this court into disrespect in the
            community. It is also an act in obstruction of the proper administration
            of justice in that it deprived this court of the opportunity to rule on the
            merits of a petition for writ of mandamus then pending before the
            court. If the act is contemptuous, it is the duty of this court to assert
            its independence and authority and to punish Judge Reed accordingly.

In Re Reed, supra, 901 S.W.2d at 611-12.

      The Court of Appeals then went on to hold that such defiance of court orders

by judicial officers provided its own remedy:


            “The power to punish a party who fails or refuses to obey a prior order
            or decree of the court for contempt is an inherent power of a court and
            is an essential element of judicial independence and authority." Ex
            parte Barnett, 600 S.W.2d 252, 254(Tex.1980); accord Ex parte
            Pryor, 800 S.W.2d 511, 512 (Tex.1990).

In Re Reed, supra, 901 S.W.3d at 611.

      County Judge Mark Henry was present with his counsel Mr. Ed Friedman on

July 6, 2015 when the Temporary Injunction was read, corrected as to details, and


                                         37
distributed. It was to County Judge Henry that District Judge Wood directed this

warning:


             As an aside, I better not find out air conditioning has been cut off or
             the lights have been cut off.

6 RR 10-11. The Appellant, County Judge Mark A. Henry, has absolutely no

excuse or defense as to any sanction that might befall him.


                                      Rule 684


      Appellant Henry claims incorrectly that a bond was not filed, and then

claims that for that reason “The trial court’s temporary injunction order is

void…”Brief, p. 43. (emphasis added).


      Even if a bond were not filed—which it was—any such failure would at

most void the temporary injunction and would not void the underlying order. See,

e.g., Benavides Independent School District, supra, 681 S.W.2d at 250:


             However, the fact that a bond was not posted affects only the validity
             of the issuance of the temporary injunction; it has no effect on the
             validity of the court’s order which authorizes the injunction.




                                             38
Benavides simply followed Goodwin v. Goodwin, 456 S.W.2d 885 (Tex.

1970)(“…we are not to be understood as holding the injunction as issued under the

amended order is invalidated or void.”


      Cases cited by Appellant do not support his “bond” argument. In Ex Parte

Lesher, 651 S.W.2d 734 (Tex. 1983), the trial court had improperly waived a bond

and no bond of any kind was posted. In Diversified, Inc. v. Turner, 650 S.W.2d

175 (Tex. App.—Houston [14th Dist.] 1983, no writ), the cited statement was

arguably dicta or at best an alternative holding, since the injunction order itself did

not meet the minimal requirements of specificity under Rule 683. Further,

Diversified appears to have involved a surety bond (“injunction bond”), and not a

cash bond. Id. at 177.


      Appellant cites cases which involved surety bonds, which must of course be

approved. However, this case clearly involved a cash bond, posted at the issuance

of the Temporary Restraining Order, and subsequently approved by the trial court

as security for the injunction. See, e.g., Bay Fin. Sav. Bank v. Brown, 142 S.W.3d

586, 590-91 (Tex. App.—Texarkana 2004, no pet):


             “[A]n order granting temporary injunction [must] fix the amount of
             security to be given by the applicant…A bond for a temporary
             restraining order does not continue on and act as security for a
             temporary injunction unless expressly authorized by the trial court.”
                                          39
That is precisely what happened in this case. See Temporary Injunction, CR 329 at

337. Cf. statements of Judge Wood, 6 RR ***.


             It is not clear how one approves a cash bond. When counsel’s check

was posted on June 9, 2015, the District Clerk’s office appears to have promptly

“approved” it. See CR 61, certifying that the District clerk “…in lieu of bond,

therein, has deposited with me cash in the amount of $100.00 on June 9…..”

      Once that bond was “approved,” the Visiting Judge on July 6, 2015 properly

applied it to the $100 bond set for the Temporary injunction.


                        Issuance of Writ Blocked by Appeal

      Appellant notes that no writ was issued, and in that regard is in the position

of one who, having asked for something, complains that he got it. Bayoud v.

Bayoud, 797 S.W.2d 304, 312 (Tex. App.—Dallas 1990, writ denied).


      The Notice of interlocutory appeal CR 334 and 335, was apparently filed

with Appellant’s Brief at Tab B, following page 5 (CR 333) of the trial court’s

Temporary Injunction. That may be because the Notice of Appeal was filed at

4:18 pm, just two minutes after the Injunction was hand stamped (See CR 329,

upper right portion of the page) by the attending deputy district clerk.




                                          40
      If --as Appellant contends--the interlocutory appeal stayed all proceedings in

the trial court, then it is difficult to see how the district clerk’s office could have

validly issued any further process.


                                        Rule 683


      The only requirements for an injunction to be effective are contained in

Rule 683. This Court has announced the governing standard:

             An explanation of the pending harm to the temporary injunction
             applicant, along with a specific recitation of the conduct enjoined, is
             all that is necessary to achieve Rule 683’s purpose: ‘to inform a party
             just what he is enjoined from doing and the reasons why he is so
             enjoined.

Intercontinental Terminals Co. v. Vopak N. Am., Inc., 354 S.W.2d 887, 899 (Tex.

App.—Houston [1st Dist.] 2001, no pet.).


                               IRREPARABLE HARM

                              (Responsive to Brief, p. 45)

        The requirement of Rule 683 was amply met by the thorough injunction of

Judge Wood. In page after page, the trial judge specified how the independence of

 the judiciary was being subverted. Temporary Injunction, CR 329 ff. There can

surely be no more irreparable harm than in subverting public confidence in one of

  the three independent branches of our state government. See In Re Reed, supra.


                                            41
       Moreover, the related requirement of “no adequate remedy at law” is

presumed to be met when a litigant seeks by injunction to enforce a statutory right.

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 201 (Tex. 2002). This principle

certainly must apply where both statutes, e.g., Tex. Govt. Code Sec. 151.001,

151.004 are being enforced, where the constitutional guarantee of separation of

powers, Tex. Const., art. II, Sec. 1, and the supervisory control of the district courts

under art. V, Sec. 8 are all at issue.


                                         Conclusion


       County Judge Mark Henry is a retired military officer, 3 RR 5, who

apparently can give orders but can’t take them. From the beginning, his conduct

has been an open challenge to the independence of the judiciary in Galveston

County and, by malignant example, the rest of the State. Appellee Cox was well

within his inherent power in issuing the challenged pre-trial orders, and the trial

judge below was well within her constitutional duty in entering the order in

question. The present state of this litigation confirms the need for firm judicial

action.


                                           Prayer

       It is therefore PRAYED that this Court AFFIRM the Orders below in all

things, and remand this case to the trial court for further proceedings including but
                                             42
not limited to (a) hearings as to the disobedience of Judge Henry of the Court’s

direct order of July 6, 2015; (b) hearings as to the complicity and culpability of

other persons acting in concert with Judge Henry in regard to disobedience of the

direct order of July 6, 2015; (c) hearings regarding the actions of Judge Henry to

impede or obstruct the jurisdiction of this Honorable Court of Appeals; (d)

hearings as to disobedience of Judge Cox’s order of September 24, 2014 and

subsequent; and (e) such other and further measures as may be necessary and

constitutionally appropriate.


                                                             Respectfully submitted,
                                                                      Mark W. Stevens
                                                                   Mark W. Stevens
                                                                    TBN 19184300
                                                                      PO Box 8118
                                                               Galveston, TX 77553
                                                                      409.765.6306
                                                                  Fax 409.765.6469
                                               Email: markwandstev@sbcglobal.net
                                          Counsel for Appellee The Hon. Lonnie Cox

                                Certificate of Compliance

     The foregoing instrument in relevant parts contains 7,109 words in Times
New Roman Type, with text double spaced and quotes in 1.5 spacing .

                                                                      Mark W. Stevens
                                                                    Mark W. Stevens




                                           43
                                 Certificate of Service

        The foregoing was efiled and e-mailed PDF to Mr. Edward Friedman on
September 24, 2015 at efriedman@bakerlaw.com, and also to James P. Allison
(j.allison@allison-bass.com) ; J. Eric Magee (e.magee@allison-bass.com); and
Phillip Ledbetter (p.ledbetter@allison-bass.com) and N. Terry Adams, Jr. at the
firm of Beirne Maynard Parsons LLP (tadams@bpmllp.com) . An additional copy
of this instrument has been served via email to Mr. Joseph M. Nixon at the firm of
Bierne, Maynard & Parsons (jnixon@bpmllp.com) and to James P. Allison at
j.allison@allison-bass.com.
                                                                  Mark W. Stevens
                                                                 Mark W. Stevens




                                        44
