                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

 THE CITY OF EL PASO, TEXAS,                    '
                                                                No. 08-10-00272-CV
                             Appellant,
                                                '                 Appeal from the
 v.
                                                                327th District Court
 REGINA ARDITTI, IN HER CAPACITY                '
 AS PRESIDING JUDGE AND JUDGE OF                              of El Paso County, Texas
 COURT NO. FOUR OF THE
 MUNICIPAL COURTS OF EL PASO,                   '                 (TC# 2005-6410)
 TEXAS, MARIA RAMIREZ, IN HER
 CAPACITY AS JUDGE OF COURT NO.
                                                '
 ONE OF THE MUNICIPAL COURTS OF
 EL PASO, TEXAS, MAX MUNOZ, IN
 HIS CAPACITY AS JUDGE OF COURT
 NO. TWO OF THE MUNICIPAL                       '
 COURTS OF EL PASO, TEXAS, DAVID
 BONILLA, IN HIS CAPACITY AS                    '
 JUDGE OF COURT NO. THREE OF THE
 MUNICIPAL COURTS OF EL PASO,
 TEXAS, AND DANIEL ROBLEDO, IN                  '
 HIS CAPACITY AS JUDGE OF COURT
 NO. FIVE OF THE MUNICIPAL
 COURTS OF EL PASO, TEXAS,                      '

                             Appellees.
                                          OPINION

       Appellees served or are serving as municipal court judges for the City of El Paso,

Appellant. Appellees entered orders directing that their judicial conduct and bench time not be

monitored and the trial court found that the orders were not void as the City alleged. The trial

court also held that Ordinance 15183, which merged the positions of the El Paso City Clerk and the

El Paso Municipal Court Clerk, violated the separation-of-powers provisions of the Texas and

United States’ Constitutions. The City appeals both determinations. We reverse the judgment of

the trial court and render the judgment that should have been rendered.
                                       BACKGROUND

        In 2002, the City of El Paso enacted Ordinance 15183, which merged the positions of City

Clerk and Municipal Court Clerk into the newly-created position of Municipal Clerk. Prior to the

merger of these positions, the Municipal Court Clerk was tasked with tracking and recording the

“bench time” of municipal court judges for the purposes of planning and analyzing judicial case

load.

        Richarda Momsen, who had served as the Municipal Court Clerk for approximately ten

years, was appointed to serve as Municipal Clerk when Ordinance 15183 was enacted. Lilia

Worrell was the Assistant Municipal Court Clerk, who was supervised by Momsen in relation to

both the administrative and judicial functions of the municipal court judges. Worrell was tasked

with the daily operation of the municipal courts and maintained internal records for City Manager

Joyce Wilson and the municipal court judges. Some of the court records were required to be

maintained by law.

        During her presentation at an El Paso City Council budget hearing at which she addressed

issues of municipal court case backlog and funding, Momsen included information about the

municipal court judges’ bench time. Upon hearing Momsen’s reference to the judges’ bench

time, Presiding Judge Regina Arditti informed the City Council that she was unaware that records

of the judges’ bench time were being kept but noted that she did not object to the practice if

non-bench time was also monitored and as long as the records were accurate. Thereafter,

Municipal Court Judge Maria Ramirez issued a letter in which she instructed Worrell to stop

recording her bench time and Worrell complied with Judge Ramirez’s directive. Presiding Judge

Arditti then instructed Momsen to refrain from recording bench time. Rather than acting on


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Judge Arditti’s instruction, Momsen consulted with City Manager Wilson since the collection of

that data related to the courts’ administration and budget. After meeting with the judges, City

Manager Wilson directed staff to cease recording bench time for all municipal courts. Prior to

this, Wilson had supervised the clerk on administrative matters, the Presiding Judge had

supervised the clerk on judicial matters, and conflicts had been amicably resolved. However, on

September 6, 2005, the Appellees sua sponte signed and issued this order:

               Monitoring an elected Judge’s conduct intrudes into the constitutional
       separation of powers and is inappropriate conduct for a municipal clerk, court
       clerk, city employee, or any contract employee. No municipal clerk, court clerk,
       city employee, or city contract employee has the authority to monitor an elected
       Judge.
               Any person disobeying this ORDER shall be subject to show cause
       proceedings why they should not be held in Contempt.

       The City filed suit alleging that Appellees’ September order is void because Appellees are

without authority to order a city and its employees refrain from complying with legal mandates and

are also without “authority to issue an order to the Clerk and others extending beyond the

appropriate direction of the Clerk to carry out her ministerial duties.”            Among its many

contentions, the City asserted in part that the order does not relate to the jurisdiction of the courts

or the performance of judicial functions, does not address “the resolution of an actual obstruction

in the courtroom or the preservation of the Courts’ dignity and integrity,” is not essential to the fair

administration of justice, is contrary to law as Appellees are without summary contempt power as

threatened in the order and is contrary to the contempt power granted under Texas Government

Code § 21.001, is overbroad, and constitutes a clear abuse of discretion. See TEX. GOV’T

CODE ANN. § 21.001 (West 2004). The City argued that it is adversely impacted by the order

because compliance therewith prevents the City Attorney from assigning and tracking the time of


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the city prosecutors and municipal clerks and similarly prevents police officers from tracking the

time spent in municipal courts as required for the reporting of overtime hours. Appellant also

complained that the order prevents the recording of municipal court proceedings. Among the

relief sought, the City requested issuance of a temporary restraining order, a temporary injunction,

writs of mandamus, prohibition, and injunction preventing enforcement of the September order,

and a declaration that the September order is void and a clear abuse of discretion.

         Appellees filed a plea to the jurisdiction in which they alleged that the City’s petition for

writ of mandamus does not present a justiciable issue since it does not involve a specific pending

controversy, that the City lacks standing to seek the requested relief, that any controversy for

which the City seeks relief is not ripe, that the exclusive jurisdiction for seeking redress of a

municipal court order lies with the El Paso Municipal Court of Appeals, and that the trial court

lacked subject-matter jurisdiction. They then filed their answer as well as a counterclaim by

which they sought to have Ordinance 15183 declared unconstitutional because it allegedly usurps

and transfers the authority and control of the judicial branch to the executive branch in violation of

the separation-of-powers provisions in the Texas Constitution and the Texas Government Code.

Appellees’ counterclaim also seeks “a declaratory judgment that the actions of the [City] be

declared unconstitutional.”1

         After the commencement of suit, Appellees entered this order to clarify their September 6,

2005, order:

               IT IS ORDERED that the practice of recording, monitoring, or
         documenting any elected judge’s time on the bench, or in-court session by a
         municipal court clerk, municipal court personnel, municipal court employee, or
         municipal court contract employee is improper and will not be permitted.

1
   In their request for relief, Appellees clarified that they sought to have Appellant’s failure to establish an
independent municipal clerk declared unconstitutional.
                                                            4
          Recording, monitoring, or documenting for the purposes of complying with state
          law or for the administration of the Courts’ dockets will remain in effect.
                  Judicial obligations are not limited to the time on the bench or in-court
          sessions. The monitoring of an elected judge’s time inaccurately reflects the
          judge’s duties and intrudes into the constitutional separation of powers and is
          inappropriate conduct for a municipal court clerk and other municipal court
          personnel. No municipal court clerk, municipal court employee, or municipal
          court contract employee has the authority to monitor an elected judge’s time on the
          bench or in-court sessions.

          The trial court did not rule on Appellees’ plea to the jurisdiction. While not finding

Appellees’ “September” order to be void, the trial court in its final judgment did find the order to

be overly broad such that it usurps the powers of the executive branch, and also found that

Appellees’ March order did not rescind or withdraw the September order.2 After first noting that

Appellees’ March order appeared broad in scope and that it was impossible from the record to

determine if the scope of the March order was overly broad, the trial court ordered Appellees to

reform and re-issue their March order “in accordance with constitutional limitations.” Noting

that Section 30.00009 of the Texas Government Code mandates the appointment of a “clerk of the

municipal courts of record” be achieved by ordinance, the trial court found the merger of the

municipal court clerk and city clerk positions to be “an unconstitutional [separation-of-powers]

violation of Article II[,] Section I of the Texas Constitution[.]”                           The trial court stayed

enforcement of the judgment pending the conclusion of any appeal.

          Both the City’s motion to clarify the judgment, wherein it sought to have the court specify

whether Ordinance 15183 is unconstitutional as applied or on its face and the City’s motion for

new trial were overruled by operation of law.

                                                    DISCUSSION

                                            Jurisdiction and Void Order
2
    These findings are also set forth in the trial court’s third and fourth conclusions of law.
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       We first address Issue Eight, in which the City challenges the trial court’s third, fourth, and

fifth conclusions of law. There, the trial court declared that Appellees’ September order is not

void, that their March order narrowed the scope of, but did not rescind, the September order, and

that the March order is broad, possibly over broad, in scope.

       The trial court failed to address the City’s challenge to Appellees’ subject-matter

jurisdiction to enter the September order. Whether a court has subject-matter jurisdiction is a

question of law which we review de novo and, in this instance, we conduct such review on our own

motion. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

       Subject-matter jurisdiction is essential to a court’s authority to decide a case, cannot be

waived, and may be raised for the first time on appeal. Waco I.S.D. v. Gibson, 22 S.W.3d 849,

851 (Tex. 2000). Subject-matter jurisdiction is never presumed. Carroll v. Carroll, 304 S.W.3d

366, 367 (Tex. 2010).

       Before addressing the merits of a case, “the court must have jurisdiction over the party or

the property subject to the suit, jurisdiction over the subject matter, jurisdiction to enter the

particular judgment, and capacity to act as a court.” State Bar of Texas v. Gomez, 891 S.W.2d

243, 245 (Tex. 1994), citing Austin I.S.D. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973). For

subject-matter jurisdiction to exist, it is necessary “that the party bringing the suit have standing,

that there be a live controversy between the parties, and that the case be justiciable.” State Bar of

Texas, 891 S.W.2d at 245, citing Texas Ass’n of Business v. Texas Air Control Bd, 852 S.W.2d

440, 443-46 (Tex. 1993). “‘To constitute a justiciable controversy, there must exist a real and

substantial controversy involving genuine conflict of tangible interests and not merely a

theoretical dispute.’” Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995), quoting


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Bexar-Medina-Atascosa Counties Water Control & Improvement Dist. No. 1 v. Medina Lake

Protection Ass’n, 640 S.W.2d 778, 779-80 (Tex.App. – San Antonio 1982, writ ref’d n.r.e.);

Boerschig v. Southwestern Holdings, Inc., 322 S.W.3d 752, 762-63 (Tex.App. – El Paso 2010, no

pet.). When the nature of the case falls within the general category of cases that the court is

empowered to adjudicate pursuant to applicable statutory and constitutional provisions,

subject-matter jurisdiction exists.         Cervantes v. Tyson Foods, Inc., 130 S.W.3d 152, 156

(Tex.App. – El Paso 2003, pet. denied).

        Texas courts have power only over litigants with justiciable interests. Morrow v. Corbin,

122 Tex. 553, 62 S.W.2d 641, 647 (1933); Hanna v. Godwin, 876 S.W.2d 454, 457 (Tex.App. – El

Paso 1994, no writ). Appellees sua sponte issued an order threatening contempt of court against

the City’s employees and contract employees if their order was not obeyed, but there is no

evidence in the record to show that any Appellee had before him or her any party having standing

to bring suit, a live controversy existing between parties, and a case that was justiciable. State Bar

of Texas, 891 S.W.2d at 245. The statutory provisions establishing the jurisdictional parameters

of municipal courts of record are not shown to have been invoked by the facts of this case. 3

Because Appellees’ order did not arise from a real and substantial controversy involving a genuine

conflict of tangible interests, no justiciable issue was before them which would confer upon any of

them the jurisdiction to issue such an order. See Bonham State Bank, 907 S.W.2d at 467, quoting

Bexar-Medina-Atascosa Counties Water Control & Improvement Dist. No. 1, 640 S.W.2d at

779-80; Boerschig, 322 S.W.3d at 762-63. We therefore find that Appellees’ September and

March orders are void for lack of subject-matter jurisdiction. Issue Eight is sustained.

3
  The jurisdiction of municipal courts of record is set forth statutorily in the Texas Government Code and the Texas
Code of Criminal Procedure. TEX. GOV’T CODE ANN. §§ 29.003, 30.00005 (West Supp. 2012); TEX. CODE
CRIM. PROC. ANN. art. 4.01(10) (West 2005), art. 4.14 (West Supp. 2012).
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                             Separation of Powers and Municipalities

       Because the City appeals from a non-jury trial, it presents its challenges to the trial court’s

specific findings of fact and conclusions of law. See Boerschig, 322 S.W.3d at 764. In its fourth

finding of fact, the trial court determined that Appellees, as members of the judicial branch of

government, have inherent duties set forth in the Texas Constitution and the Texas Government

Code. In its twenty-sixth finding of fact, the trial court found that the City’s acts had “encroached

and usurped the powers not belonging to it.” In its first conclusion of law, the trial court

recognized that Article II, Section 1 of the Texas Constitution provides for the separation of

powers, and in its second conclusion, determined that the City, in exercising “its constitutional

executive powers and statutory authority, is entitled to exercise those essential powers necessary to

the establishment, operation and efficiency of municipal judiciary – the power of the purse.”

       In Issue Four, the City challenges each of these findings and conclusions which are related

to Appellees’ counterclaim that, as members of the judiciary, Appellees have inherent powers and

duties as set forth in the Texas Constitution and the Texas Government Code which provide for the

separation of powers between the judiciary and other branches of government and which mandate

independence in judicial functions. In the trial court, Appellees asserted that Ordinance 15183

usurps the authority and control of the judicial branch, gives it to the executive branch, and creates

a conflict in violation of the Texas Constitution and the Texas Government Code. As requested

by Appellees, the trial court declared the ordinance’s merger of the municipal court clerk and city

clerk positions into a single municipal clerk position to be an unconstitutional violation of the

separation-of-powers provisions of the Texas Constitution.

       The Texas Supreme Court has held that a court’s inherent judicial powers, which “[spring]


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from the doctrine of separation of powers between the three governmental branches,” exists to

enable a court to effectively perform its judicial functions and to protect its independence,

integrity, and dignity.    Eichelberger v. Eichelberger, 582 S.W.2d 395, 399 (Tex. 1979).

However, the Texas Supreme Court has also recognized that the Texas Constitution “only

guarantees the separation of the state legislative, executive, and judicial branches of government.”

TEX. CONST. art. II, § 1; City of Fort Worth v. Zimlich, 29 S.W.3d 62, 72 (Tex. 2000); A.H.D.

Houston, Inc. v. City of Houston, 316 S.W.3d 212, 222 (Tex.App. — Houston [14th Dist.] 2010,

no pet.) (Texas Constitution’s separation-of-powers provision does not apply to local governments

and, accordingly, no separation-of-powers issue existed with regard to ordinance). Consequently,

because the Texas Constitution does not guarantee the separation of the local legislative,

executive, and judicial branches of government, the merger of positions under Ordinance 15183

cannot be unconstitutional.

       Moreover, while a court has inherent powers upon which it may call to aid in the exercise

of its jurisdiction, in the administration of justice, and in the preservation of its independence and

integrity, which include utilizing broad discretion over the conduct of its proceedings, controlling

its judgments, summoning and compelling the attendance of witnesses, regulating the admission

and practice of law, and providing personnel to aid in the exercise of its judicial functions, we do

not find that Appellees’ orders are within the confines of such inherent powers. See Eichelberger,

582 S.W.2d at 398, 399 n.1 (and cases cited therein); State v. Johnson, 821 S.W.2d 609, 612

(Tex.Crim.App. 1991); In re D.S., 333 S.W.3d 379, 388 (Tex.App. – Amarillo 2011, no pet.); In re

State, 162 S.W.3d 672, 677 (Tex.App. – El Paso 2005, orig. proceeding).

       We sustain Issue Four. Having sustained the City’s Fourth and Eighth Issues, we need not


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address the City’s remaining issues.

                                       CONCLUSION

       We reverse the judgment of the trial court and render the judgment the trial court should

have rendered. TEX. R. APP. P. 43.2(c). Appellees’ September and March orders are void for

want of subject-matter jurisdiction and, because the Texas Constitution’s separation-of-powers

doctrine does not apply to local governments, Ordinance 15183 is not unconstitutional. TEX.

CONST. art. II, § 1; Zimlich, 29 S.W.3d at 72; A.H.D. Houston, Inc., 316 S.W.3d at 222.



                                            GUADALUPE RIVERA, Justice
August 31, 2012

Before McClure, C.J., Rivera, J., and Gomez, Judge
Gomez, Judge, sitting by assignment




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