                                                                                                ACCEPTED
                                                                                            01-15-00583-CV
                                                                                 FIRST COURT OF APPEALS
                                                                                         HOUSTON, TEXAS
                                                                                      10/27/2015 1:23:50 PM
                                                                                      CHRISTOPHER PRINE
                                                                                                     CLERK

                              MARK W. STEVENS
                             ATTORNEY AT LAW
                                P.O. BOX 8118                           FILED IN
                                                                 1st COURT OF APPEALS
                         GALVESTON, TEXAS 77553                      HOUSTON, TEXAS
                                                                 10/27/2015 1:23:50 PM
                                  409.765.6306
                                                                 CHRISTOPHER A. PRINE
                               Fax 409.765.6469                           Clerk
                       Email: markwandstev@sbcglobal.net

                                 October 27, 2015

Hon. Christopher A. Prine, Clerk
First Court of Appeals
301 Fannin Street, Suite 245
Houston, Texas 77002

Re: No. 01-15-00583-CV; Henry v. Cox

            Reply of Appellee Hon. Lonnie Cox to the Post-Submission
                   Letter Brief of Appellant Hon. Mark Henry

Dear Sir:

      Please circulate copies of this letter to the members of the October 15 panel,

i.e., Justices Jennings, Higley and Brown, and the appropriate members of the

Court’s Staff.

                 Jurisdiction under Art.. V, Sec. 8 Properly Invoked

      Appellant Henry attacks the jurisdiction by reciting a truncated test:

“arbitrarily and capriciously.” Post Submission Letter Brief, p. 5. Appellant

omitted a crucial word: “illegally.” The “supervisory control” of the District


                                          1
Courts clearly extends to situations in which the commissioners court acts

illegally, arbitrarily or capriciously. Texas Department of Transportation v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Avery v. Midland County, 406 S.W.2d

422, 428 (Tex. 1966); Stovall v. Shivers, 103 S.W.2d 363 (Tex. 1937).

       At oral argument, Appellant’s counsel made a stunning claim of raw power.

Asked if a commissioner’s court might retaliate against an unpopular ruling but

cutting the salary of staff of the offending judge, Counsel for Appellant replied

that it could do so even though it might not be “fair” or “moral.” But it might

indeed be an “offense”, e.g., abuse of office, official oppression, etc.

                                Judicial Independence

       The Temporary Injunction makes repeated reference to what is really at

stake in this case—the independence of the judiciary. That independence

ultimately is a matter of public perception, i.e., whether the public can be confident

that judges are truly independent of improper influence. Aetna Life Insurance Co.

v. Lavoie, 475 U.S. 817 (1986)(state supreme court judge recused due to

perception of personal interest in legal issue before his court); Caperton v. A.T.

Massey Coal Co., Inc. 129 S.Ct. 2252, 2259 (2009)(disqualification of State

Supreme Court Justice due to extraordinary expenditures by chief officer of a

litigant in his court).




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                     Unfinished Business: Instructions on Remand

         The Court has apparently carried with the case Appellee’s earlier requests

that this case be remanded under TRAPs 29.3 and 29.4 for appropriate hearings.

Appellee now repeats those requests, with urgency. It has been approximately 15

months since Ms. Quiroga was ostensibly fired. As the Court was informed in

response to questions on October 15, Ms. Quiroga has worked at the direction of

the Judges since June 8 but has been denied pay, computer access, etc. Such

defiance and delay itself raises serious questions about the independence of the

judiciary in Galveston County. Appellee urges the Court to refer this case to the

trial court with instructions to proceed under TRAPs 29.3 and 29.4 on a priority

basis.

                    Throwing The Skunk Onto the Appellate Bench

         Not content with trying his case in the press or media with misleading

accusation, Appellant Henry attempts to sling that material—clearly dehors the

record—onto the appellate bench in his various briefs. Beginning at p. 1 of his

Post Submission Letter Brief, Appellant completes a deliberate sequence of

inappropriate actions. The Channel Two sound bite cited was, of course, no part of

the record below, because it emerged weeks after the July 6 Temporary Injunction

issued. If one were to consult that “news” piece, they would quickly see that it was

generated by the Commissioners themselves, one of whom appears in it. The trial


                                           3
court will have ample opportunity to hear such accusations, if indeed they are even

relevant to the deciding legal issues in this case.

      Appellee Cox will leave it to this honorable court to characterize, or

charitably disregard, such maneuvers.

               Conclusion—Temporary Injunction Should be Upheld
                      Under Applicable Standard of Review

      This interlocutory appeal does not place in issue—Appellant has

attempted—the job performance of the Director. As the panel observed during oral

argument and as the cases amply demonstrate, in the absence of such conclusive

proof there is no alternative but to affirm the Temporary Injunction and remand for

further proceedings—and to do so promptly lest time, delay and attrition give to

Appellant what the law and this Court cannot--- improper dominance of the justice

courts.


                                                           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 The Hon.
                                                 th
                             Lonnie Cox of the 56 Judicial District Court, Appellee




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                            Certificate of Compliance

     The foregoing instrument in relevant parts contains 642 words in Times
New Roman Type, with 2.0 spacing .

                                                               /s/ Mark W. Stevens
                                                                  Mark W. Stevens

                                 Certificate of Service

        The foregoing was efiled and e-mailed PDF to Mr. Edward Friedman on
October 27, 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.
      A further copy is also being served upon Mr. John B. Dahill via facsimile
512.476.5122 this date, per the corrected fax number given by Mr. Dahill’s Office.
                                                               /s/ Mark W. Stevens
                                                                  Mark W. Stevens




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