                                     NO. 07-03-0391-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL E

                                    MARCH 2, 2006
                            ______________________________

           ARTHUR WARE, INDIVIDUALLY AND AS POTTER COUNTY
            JUDGE; JOE KIRKWOOD, MANNY PEREZ-VILLASENOR,
   BILL THOMAS, IRIS SANDERS LAWRENCE, INDIVIDUALLY AND AS POTTER
      COUNTY COMMISSIONERS; THE POTTER COUNTY COMMISSIONERS
             COURT; AND POTTER COUNTY, TEXAS, APPELLANTS

                                              V.

                              LEON “BUBBA” SMITH,
                POTTER COUNTY CONSTABLE, PRECINCT 4, APPELLEE
                       _________________________________

               FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 89,161-E; HONORABLE JACK D. YOUNG, JUDGE
                          _______________________________


Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1


                                 MEMORANDUM OPINION


       Appellants, the Potter County judge, Potter County commissioners, Potter County,

and its commissioners court, bring this appeal from a judgment declaring they acted

arbitrarily and unreasonably in setting the salary for the position of constable of precinct



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          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
four of Potter County then held by appellee, Leon “Bubba” Smith. The trial court also

directed issuance of a writ of mandamus commanding the Potter County Commissioners

Court and its individual members to set and pay a reasonable salary. Appellants present

eight issues challenging the trial court’s judgment. Finding the issues presented have

become moot, we vacate the trial court’s judgment and dismiss the cause.


       Appellee was elected to the office of constable for precinct four of Potter County and

assumed that office on January 1, 2001. He filed suit in September 2001 alleging the

commissioners court acted illegally by failing to set a reasonable salary for his position. He

sought declaratory relief and an award of attorneys fees. The petition also sought issuance

of a writ of mandamus “to enforce the obligation . . . to immediately set a reasonable

salary.” Appellee also sought to recover past compensation which he alleged should have

been paid. This claim was abandoned in response to our opinion in Ware v. Miller, 82

S.W.3d 795 (Tex.App.–Amarillo 2002, pet. denied).


       The case was tried to the bench and in August 2003 the court signed a final

judgment. It directed issuance of a writ of mandamus commanding the commissioners

court to set and pay a reasonable salary to Smith “from and after 7-10-03[.]” The

defendants jointly perfected appeal from the trial court’s judgment. At oral argument

appellants argued the appeal has become moot and must be dismissed because appellee

no longer occupies the office of constable of precinct four. Appellants have provided a

certified copy of the results of the November 2, 2004 general election showing appellee lost

to an opponent.



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       Appellee does not question that his term of office ended December 31, 2004, or that

he is limited to prospective relief. As the writ of mandamus directing the commissioners

court to set a reasonable salary could have no effect on an existing controversy, that claim

is moot and must be dismissed. Appellee argues his claims for declaratory relief are not

moot because the declaratory judgment, with an award of attorneys fees and costs, was

rendered during his term of office.


       In Ware v. Miller, 134 S.W.3d 381 (Tex.App.–Amarillo 2003, pet. denied), we

reversed an award of attorneys fees in a judgment declaring a former constable had been

entitled to a reasonable salary. Id. at 384. We found the prohibition on recovery of past

salary and end of the constable’s term of office prevented the declaration from having any

practical effect, rendering the case moot. Id. We find that holding applicable here and will

adhere to it. Accordingly, we vacate the judgment of the trial court and dismiss the cause.




                                          James T. Campbell
                                              Justice




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