                                                                                ACCEPTED
                                                                            01-15-00583-CV
                                                                 FIRST COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                        7/8/2015 7:36:44 AM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK

                No. 01-15-00583-CV

             In the First Court of Appeals              FILED IN
                                                 1st COURT OF APPEALS
                                                     HOUSTON, TEXAS
                                                 7/8/2015 7:36:44 AM
THE HONORABLE MARK HENRY,COUNTY                  CHRISTOPHER
                                               JUDGE    OF       A. PRINE
                                                         Clerk

              GALVESTON COUNTY,

                                Appellant



                           v.



        THE HONORABLE LONNIE COX,

                                Appellee



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


   APPELLEE’S RESONSE TO APPELLANT’S

       EMERGENCY MOTION FOR STAY



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

                           1
            RESPONSE TO EMERGENCY MOTION FOR STAY

TO THE HONORABLE FIRST COURT OF APPEALS:

      Appellant’s Emergency Motion for Stay should be promptly OVERRULED.

      It is now clear that where there is no money judgment awarded, the trial

court retains discretion to supersede—or not—its own judgments. In re State

Board for Educator Certification, Relator, No. 13-0537 (Tex. December 19,

2014)(orig. proceeding), below.

      Texas Civil Practice & Remedies Code Sec. 6.001 does not support

Appellant’s claim. Enriquez v. Hooten, 857 S.W.2d 153 (Tex. App.—El Paso

1993, no writ), cited at Appellant’s Motion, p. 7, itself noted that in State v.

Schless, 815 S.W.2d 373 (Tex. App.—Austin 1991)(orig. proceeding), the Court

made an exception where the appeal was not from a money judgment and

concluded that under TRAP 47(f), the trial court retained the discretion to deny

supersedeas. Likewise, Dallas v. North By West Entertainment, 24 S.W.3d 917

(Tex. App.—Dallas 2000, no pet.), cited at Appellant’s Motion, p. 7, appears to

have been implicitly overruled in Public Utilities.

      In In re State Board for Educator Certification, Relator, No. 13-0537 (Tex.

December 19, 2014)(orig. proceeding), the Texas Supreme Court stated:

             We see no merit in the Board’s argument that its right to supersedeas
             removes a trial court’s discretion to enforce its non-money judgment
             against the State pending appeal. CPRC Section 6.001 simply restates

                                           2
             settled law that the State may appeal without filing a bond. Neither it
             nor TRAP 25.1(h) confers unfettered power to force suspension of the
             judgment. The Board may appeal without security—this is
             undisputed—but it has no unqualified right to supersedeas in light of
             the trial court’s discretion under TRAP 24.


             In a concluding passage, In Re State Board explained the injustice that

would result from a contrary holding, in language which closely resembles the

situation presented in the present case:

             The state—as yet unsupported by a victory on the merits in any
             court—wants to strip Montalvo of his livelihood while the appellate
             process grinds on, and if he manages to regain his professional license
             after having been kicked out of his profession for years—well,
             bygones. That’s a striking assertion of unbridled executive power—to
             enforce administrative orders that a trial court has reverse—and
             TRAP 24.2(a)(3) recognizes the juridiary’s authority to say no.


                 A Stay is Not Otherwise Necessary or Appropriate

      Perhaps recognizing the weakness of his initial arguments, Appellant Henry

provides supplementary arguments beginning at Motion, p. 8. In essence,

Appellant Henry seems to argue that he is powerless to obey the injunction now in

place because he is only one vote in five.

      That argument overlooks several inconvenient facts. First, in appellant’s

own words it is also “axiomatic” that the County Judge is the chief executive

officer of the County. Other commissioners my vote in their legislative capacity,


                                             3
but only the county judge may execute. Indeed, the record on briefing will clearly

demonstrate that County Judge Henry County Judge Henry attempted to act

entirely on his own presumed authority, without prior commissioners’ court

approval—or consultation with the trial judges , in purporting Ms. Quiroga on July

24, 2014. That “firing” was only later “ratified” by a commissioners court vote

tainted with suspicion of prior illegal—under the Texas Open Meetings Act--

polling to ensure the desired result.

                                   Impossible to Comply?

      Appellant Henry’s argument that it is “impossible to comply” with the

injunction is, first of all, raised in the wrong court. That issue is solely in the

province of the trial court:

             Although involuntary inability to comply is a valid defense to
             contempt, Johnson did not present evidence or testify to this matter in
             the show cause hearing, and we do not consider that argument here.
             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. See Ex parte Gonzales, 414 S.W.2d 656, 657 (Tex.1967);
             Ex parte Testard, 101 Tex. 250, 106 S.W. 319, 320 (1908). See
             generally Greenhill & Beirne, Habeas Corpus Proceedings in the
             Supreme Court of Texas, 1 St. Mary's L.J. 1 (1969).


Ex Parte Johnson, 654 S.W.2d 415, 419 (Tex. 1983).

      Furthermore, the “impossibility” argument avoids the real –and really

disturbing—question that will arise in the event of any contempt proceedings: Who

                                            4
will have been acting in “actual concert” with County Judge Henry if the detailed

injunction is not carried out.

      In In Re Conger, 357 S.W.2d 740 (Tex. 1962), the County as a body had

been enjoined from using construction equipment for private purposes, but the

prior suit against the four individual commissioners had been dismissed, i.e., none

were actually parties to the order of injunction. Id. at 743. Thereafter, one of the

commissioners with a wink and a nod allowed county equipment to be used for the

benefit of private parties. He defended by arguing that his actions were

individual, and not those of the County. Conger, supra, at 744. That contention

was rejected:

             While individual members of the County Commissioners Court have
             no authority to bind the county by their separate actions, Canales v.
             Laughlin, 147 Tex. 169, 214 S.W. 451, nevertheless it is no valid
             defense in this case to say that the acts of the two Commissioners
             detailed herein were not official acts ordered by the Commissioners
             Court. The writ restrained acts of this character, both official and
             otherwise, prohibiting not only Upton County but its agents, servants,
             officers and employees from doing the things complained of. That this
             was the necessary effect of the injunction also, see Rule 683, Texas
             Rules of Civil Procedure.

Ex Parte Conger, supra, 357 S.W.2d at 744.

      Appellant attempts to obtain advanced review of the merits by arguing that

the injunction was at least in part “mandatory” and therefore void. Motion, p. 12.



                                           5
However, the “rule” cited by Appellant has its inevitable exceptions. Rhodia, Inc.

v. Harris County, 470 S.W.2d 415, 419-20 (Tex. App.—Houston [1st Dist.] 1971):


             Generally, the preservation of the quo can be accomplished by an
             injunction prohibitory in form, but it sometimes happens that the
             status quo is a condition not of rest, but of action, and the condition of
             rest is exactly what will inflict the irreparable injury on complainant.
             In such a case, courts of equity issue mandatory writs before the case
             is heard on its merits. This character of cases has been repeatedly held
             to constitute an exception to the general rule that temporary injunction
             may not be resorted to to obtain all relief sought in the main action;
             such temporary injunction may be mandatory in character . McMurrey
             Refining Co. v. State, 149 S.W.2d 276 (Tex.Civ.App.1941, writ ref.).

Rhodia, Inc. v. Harris County, supra, 470 S.W.2d at 419-20.

      To the extent that the Order of Injunction is deemed “mandatory”, such

provisions were necessary to restore the last peaceable status. Anything less would

permit Henry and others—especially other commissioners-- to obstruct by inaction

the clear Orders of the trial court.

                    The Reach of the Injunction under TRCP 683

      Texas Rule of Civil Procedure 683 cannot be evaded by arguing that

because other commissioners are not “agents” or “servants” of County Judge

Henry, they cannot be forced into action with the threat of contempt. Appellant

overlooks the rest of the critical phrase, which makes an injunction binding not

only on the named party, but “…upon those persons in active concert or




                                          6
participation with them who receive actual notice of the order by personal service

or otherwise.” TRCP 683, 1st Paragraph, final sentence.

      It is clear that the trial judge, the Hon. Sharolyn Wood, Assigned, ordered

Mark A. Henry to notify all Commissioners and Department Heads by means of a

certified copy of the Order. Order, p. 9. It is not known at this time whether even

THAT directive has been obeyed—and if not, on whose “advice”.


      Rule 683 thus does not reach only named parties such as County Judge

Henry. Ex Parte Foster, 188 S.W.2d 382 (Tex. 1945). In determining that a non-

party was bound by an injunction—and thus subject to contempt—the Supreme

Court of Texas first noted:


      This Court in the case of American Indemnity Co. v. Fellbaum, 114 Tex.
      127, 263 S.W. 908, 910, 37 A.L.R. 633, cited and approved the rule
      announced in 15 R.C.L., p. 1010, s 483, which reads as follows:

      'The courts look beyond the nominal parties, and treat all those whose
      interests are involved in the litigation and who conduct and control the
      action or defense as real parties, and hold them concluded by any judgment
      which may be rendered, as, for example, those who employ counsel in the
      case, assume the active management of the proceeding or defense, or who
      pay the costs and do such other things as are generally done by parties. In
      other words, by participating in the proceedings one is estopped by the
      judgment as to any questions actually litigated and decided, therein.'

188 S.W.2d at 384-85.

      The Supreme Court then wrote:


                                         7
       We hold that relator by virtue of his knowledge of and interest in the subject
      matter of the litigation involved in Cause No. 79272-E, and his participation
      in the proceedings therein, is bound by the judgment entered therein.

      Rule 683 of the Texas Rules of Civil Procedure is identical with Rule 65(d)
      of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
      See Regal Knitwear Co. v. N. L. R. B., supra; Aluminum Colors, Inc. v.
      Empire Plating Co. supra.

      In the case of Regal Kitwear Co. v. N. L. R. B., supra (65 S.Ct. 481, 89
      L.Ed.--), the Supreme Court of the United States said, speaking of rule
      65(d):

      'This is derived from the common law doctrine that a decree of injunction
      not only binds the parties defendant but also those identified with them in
      interest, in 'privity' with them, represented by them or subject to their
      control.'
Foster, supra, 188 S.W. 2d at 384.

                         Who May Be Held in Contempt?

      It is surprising that Appellant Henry appears concerned only with the

possibility of himself being the target of a contempt action. At a minimum, the

record when filed will show that two county Commissioners testified at the call of

Appellant before the trial court, i.e., Commissioner Stephen Holmes and, at greater

length, Commissioner Ryan Dennard. The record will amply demonstrate that

these individuals were acting in concert with Appellant Henry—and it is

significant that the troika of Holmes, Dennard and Appellant Henry constituted a

quorum which could easily “comply” with the Order of the trial court if any

resolution which were actually required—a claim which Appellee does not

concede.
                                         8
       Finally—and most disturbingly—various lawyers might well be proper

targets of contempt actions. At Order p. 4, Paras. 3 and 4, the trial court notes that

at the request of Judge Cox, the Office of Court Administration sought an opinion

from the Attorney General of Texas on “guidance for the issues involved in

terminating and hiring court administrative employees.” The Court then notes at

Para 4: “In response, Respondent Henry hired a litigation attorney to bring a

mandamus action in the appellate courts attacking Judge Cox’s September 24th

order, informing the Attorney General’s office of this litigation to terminate the

request for an opinion on the growing dispute as to the rights of the judiciary.”

       As this Court is well aware by Judicial Notice, TRE 202, that “litigation

attorney” was Mr. James Allison of the firm of Allison, Bass &Magee, LLP, which

were relators counsel in this court in Case No. 01-14-00820-CV, and later before

the Texas Supreme Court in No. 15-00445. When filed, the Reporter’s Record and

exhibits will reveal that it was a letter from Attorney Allison’s firm to the Attorney

General—written about two days after the filing of the mandamus action in No.

01-14-00830-CV--which brought the possibility of a helpful AG’s opinion to an

end.

       Mr. Allison and other members of his firm who pressed the earlier

mandamus cases have now joined as counsel in the present appeal.




                                          9
      Nobody contests the right of litigants to file motions for proper—or even

arguably proper purposes. Those rights are not unbounded, however. See, e.g.,

TRCP 13. If the present Motion and other actions since the issuance of the Order

are shown to have been attempts to defy any court order, any lawyer taking part

may also be the subjects of contempt actions.

                                     Conclusion

      It is a measure of the gravity of this case that such harsh possibilities must be

raised. Appellee Henry has been found to have irreparably injured the authority of

the trial courts in many successive ways. Some of those attempts—patently

meritless and ill received mandamus filings—were financed with public money in

the grasp of Appellant Henry, spent in the unrestrained employment of counsel for

the purpose of preventing the Attorney General from expressing an opinion, as

found by the trial court, and for the overall purpose of attempting to win in the

Appellate Courts what they clearly could not win in any hearing at which Mark

Henry or his cohorts had to testify about their actions. The present Motion is an

obvious continuation of that strategy. If County Judge Henry or any others wish to

supersede the injunction, they should make that request to the trial judge.

                                           Prayer

      The Motion for Emergency Stay should be DENIED.




                                          10
                                                         Respectfully submitted,
                                                            /s/ Mark W. Stevens
                                                               Mark W. Stevens
                                                                 TBN 19184300
                                                                    P. Box 8118
                                                        Galveston, Texas 77553
                                                                  409.765.6306
                                                              Fax 409.765.6459
                                           Email: markwandstev@sbcglobal.net
                                                                    Counsel for
                                                        th
                                    Lonnie Cox of the 56 Judicial District Court


                           Certificate of Compliance

       The foregoing instrument in relevant parts contains 2,215 words in Times
New Roman Type, with text double spaced and extended quotes in 1.5 spacing for
clarity and legibility.

                                                             /s/ Mark W. Stevens
                                                                Mark W. Stevens

                             Certificate of Service

        The foregoing was efiled and e-mailed PDF to Mr. Edward Friedman on
July 8, 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).

                                                             /s/ Mark W. Stevens

                                                             Mark W. Stevens




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