No. 15-0993 FILED 15-0993 12/19/2016 5:11:34 PM tex-14366426 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK IN THE SUPREME COURT OF TEXAS THE HONORABLE MARK HENRY, COUNTY JUDGE OF GALVESTON COUNTY, Petitioner, v. THE HONORABLE LONNIE COX, JUDGE OF THE 56 TH DISTRICT COURT OF GALVESTON COUNTY, Respondent. From the First Court of Appeals at Houston, Texas. (No. 01-15-00583-CV) RESPONSE TO EMERGENCY MOTION TO PREVENT INTERFERENCE WITH SUBJECT MATTER OF COURT S JURISDICTION James E. Trey Trainor, III State Bar No. 24042052 trey.trainor@akerman.com AKERMAN LLP 700 Lavaca Street, Suite 1400 Austin, Texas 78701 Telephone: (512) 623-6700 Fax: (512) 623-6701 N. Terry Adams, Jr. State Bar No. 00874010 terry.adams@akerman.com Joseph M. Nixon State Bar No. 15244800 joseph.nixon@bmpllp.com Nicholas D. Stepp State Bar No. 24077701 nicholas.stepp@akerman.com AKERMAN LLP 1300 Post Oak Blvd., Suite 2500 Houston, Texas 77056 Telephone: (713) 623-0887 Fax: (713) 960-1527 Counsel for Petitioner, The Honorable Mark Henry
COMES NOW, Respondent Judge Mark Henry, and asks the Court to deny Judge Cox s Emergency Motion, filed December 19, 2016, and in support thereof would respectfully show the Court as follows: The Galveston County Commissioners Court placed consideration of a court administrator for the County Courts at Law on its December 20, 2016 agenda because the judges of the County Courts at Law asked the Commissioners Court for an administrator. Judge Cox s Emergency Motion should be denied because it offers no legal or factual basis for granting him any relief. Judge Cox alleges that Judge Henry has violated the district court s temporary injunction order and is attempting to moot this case. Judge Cox is incorrect in all respects. 1. The Commissioners Court Agenda for December 20, 2016 shows that Galveston County government is functioning as it should. The December 20, 2016 Commissioners Court agenda shows that Galveston County government is functioning as it should. Pursuant to Section 75.401 of the Texas Government Code, the judges of the County Courts at Law in Galveston County asked the Commissioners Court to create a court administrator system for the county courts at law in Galveston County. Exhibit A. The Galveston County Commissioners Court promptly placed the item on its public agenda and its executive session agenda for December 20, 2016. Exhibit B. What action the Galveston County Commissioners Court may take on the application of the judges of the County Courts at Law remains to be seen. By
statute, the Commissioners Court may approve the creation of a court administrator system, including the designation of local court divisions and duties of each court administrator division. TEX. GOV T CODE 75.401(a) (b). The court administrator would then be appointed by the judges served by the court administrator and entitled to reasonable compensation, as determined by the judges served and in the salary range set for the position, as set by the commissioners court. Id. 75.401(c) (d); see also Exhibit A at Exhibit 1. This is not some nefarious plot to undermine all or part of the judiciary in Galveston County. It is, rather, an example of exactly how county government should work respectful cooperation between the judiciary and the commissioners court. 2. Any action by Galveston County Commissioners Court on the County Court at Law Judges request will have no effect on this case. Judge Cox argues that Judge Henry is attempting to deprive this Court of jurisdiction over this appeal. That is false. No action the Commissioners Court might take on the request of the County Court at Law judges will have any impact on the Court s jurisdiction. Judge Cox believes that Judge Henry set the salary of the Court Administrator for the district courts arbitrarily low. Ultimately, Judge Cox sued over it. The fundamental separation of powers issue in this appeal is who has the power to set a salary range for a court administrator under section 75.401 of the 2
Texas Government Code. As an appeal from the grant of a temporary injunction, questions before the court include (i) whether the court of appeals erred in holding that a district court s inherent power provides an independent basis of jurisdiction for disregarding both a valid statute and the separation of powers clause in the Constitution, and (ii) whether the district court abused its discretion in ordering a specific salary for a specific person in a new job created by judicial order and without commissioners court approval. Both the district court and the court of appeals erred. Their actions violate section 75.401 of the Government Code and the separation of powers clause of the Constitution. They also stand in stark contrast to the overwhelming weight of separation of powers jurisprudence in Texas and elsewhere, as Judge Henry s briefing has demonstrated. These questions of law do not become moot if the county court at law judges request and receive their own, separate court administrator system. 3. The temporary injunction order is stayed by operation of law. Judge Henry was sued as a county official in his official capacity. Therefore, his Notice of Appeal operated as a supersedeas bond. TEX. CIV. PRAC. & REM. CODE 6.001(b )(4); In re Long, 984 S.W.2d 623, 625 (Tex. 1999); Enriquez v. Houten, 857 S.W.2d 153, 154 (Tex. App. El Paso 1993, orig. proceeding); see Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 485 (Tex. 1964). A government official s notice of appeal, when perfected, automatically supersedes 3
the trial court s judgment, and that suspension remains in effect until all appellate rights are exhausted. In re Long, 984 S.W.2d at 625. The rules apply to [a government official s] appeal of injunctions. Id. A judgment or order that has been superseded is not required to be followed, and person adversely affected by the judgment or order cannot be punished in contempt for disobedience thereof. Ex parte Kimbrough, 146 S.W.2d 371, 371 (Tex. 1941) (orig. proceeding); City of San Antonio v. Clark, 554 S.W.2d 732, 733 (Tex. Civ. App. San Antonio 1977, no writ). Because Judge Henry s Notice of Appeal suspended enforcement of the temporary injunction during his appeal, no alleged violation of the erroneous temporary injunction order has any legal significance. Lifting the stay order or issuing a new order would improperly deny Judge Henry the substantive protections afforded under Texas law. In re Long, 984 S.W.2d at 625; In re State ex rel. Munk, No. 11-1500124-CV, 2015 WL 3534123, at *1 (Tex. App. Eastland June 5, 2015, orig. proceeding). CONCLUSION AND PRAYER Judge Cox is reaching beyond any remotely arguable jurisdiction of his court or the district courts generally in an attempt to control both the county courts at law and the commissioners court. Fortunately for the citizens of Galveston County, Texas law does not provide him that power. 4
For these reasons and the reasons articulated in Judge Henry s briefing, the Court should deny Judge Cox s emergency motion in all things, grant Judge Henry s Petition for Review, set oral argument, reverse the court of appeals, and vacate the temporary injunction. Judge Henry also prays for all other relief to which he may be justly entitled. Respectfully submitted, James E. Trey Trainor, III State Bar No. 24042052 trey.trainor@akerman.com AKERMAN LLP 700 Lavaca Street, Suite 1400 Austin, Texas 78701 Telephone: (512) 623-6700 Fax: (512) 623-6701 /s/ N. Terry Adams, Jr. N. Terry Adams, Jr. State Bar No. 00874010 terry.adams@akerman.com Joseph M. Nixon State Bar No. 15244800 joseph.nixon@akerman.com Nicholas D. Stepp State Bar No. 24077701 Nicholas.stepp@akerman.com AKERMAN LLP 1300 Post Oak Blvd., Suite 2500 Houston, Texas 77056 Telephone: (713) 623-0887 Fax: (713) 960-1527 Counsel for Petitioner The Honorable Mark Henry, County Judge of Galveston County 5
CERTIFICATE OF SERVICE I hereby certify that I have complied with the Texas Rules of Appellate Procedure and the Electronic-Filing Rules for the Supreme Court of Texas and that the foregoing Reply Brief on the Merits was e-filed with the Clerk of the Court and e-served on all opposing counsel listed below in accordance with these Rules on this the 19th day of December, 2016. Mark W. Stevens markwandstev@sbcglobal.net P.O. Box 8118 Galveston, Texas 77553 Counsel for Respondent /s/ Nicholas D. Stepp Nicholas D. Stepp 6
Exhibit A
DECLARATION OF THE HONORABLE JOHN GRADY STATE OF TEXAS COUNTY OF GALVESTON The undersigned individual, under penalty of perjury, testifies as follows: 1. My name is John Grady. I am the presiding judge of the County Court at Law No. 1, Galveston County, Texas. I am over the age of eighteen, licensed to practice law in Texas, and I am competent to make this declaration. I have never been convicted of a felony or a crime of moral turpitude. This declaration is based on my personal knowledge and is true and correct. 2. In my capacity as Judge of the County Court at LawNo. 1, Galveston County, Texas, I have joined in a request to the Galveston County Commissioners Court to establish a Court Administrator system for the Galveston County Courts at Law. 3. As an indication of my support for a Court Administration system for the County Courts at Law in Galveston County, I signed a request addressed to County Judge Mark Henry and the Galveston County Commissioners on December 16, 2016. A true and correct copy of the request that I signed is attached to this declaration as Exhibit 1. FURTHER DECLARANT SAYETH NOT. I DECLARE, UNDER PENALTY OF PERJURY, that the foregoing testimony is true and correct, based on my personal knowledge, on this day of December, 2016. The Honorable John Grady {40259716;1}
Exhibit 1
DECLARATION OF THE HONORABLE BARBARA E. ROBERTS STATE OF TEXAS COUNTY OF GALVESTON The undersigned individual, under penalty of perjury, testifies as follows: "My name is Barbara E. Roberts. I am the presiding judge of the County Court at Law No. 2, Galveston County, Texas. I am over the age of eighteen, licensed to practice law in Texas, and I am competent to make this declaration. I have never been convicted of a felony or a crime of moral turpitude. This declaration is based on my DECLARATION personal knowledge OF and THE is HONORABLE true and correct. BARBARA E. ROBERTS STA 2. 1'F, "In OF my TEXAS capacity as Judge of the County Court at Law No. 2, Galveston County, Texas, I have joined in a request to the Galveston County Commissioners Court COUNTY to establish OF GALVESTON a Court Administrator system for the Galveston County Courts at Law. The undersigned individual, under penalty of perjury, testifies as follows: 3. "As an indication of my support for a Court Administration system for the County Courts at Law in Galveston County, I signed a request addressed to County Judge 1. Mark "My name Henry is and Barbara the Galveston E. Roberts. County I am the Commissioners presiding judge on December of the County 16, 2016. Court A at true Law and No. correct 2, Galveston copy of County, the request Texas. that I I am signed over is the attached age of to eighteen, this declaration licensed as to Exhibit practice 1." law in Texas, and I am competent to make this declaration. I have never been convicted of a felony or a crime of moral turpitude. This declaration is based FURTHER on my DECLARANT personal knowledge SAYETH and NOT. is true and correct. 2. I "In DECLARE, my capacity UNDER as Judge PENALTY of the County OF PERJURY, Court at Law that No. the 2, foregoing Galveston testimony County, is true Texas, I have joined in a request to the Galveston County Commissioners Court and correct, to establish based on a Court my personal Administrator knowledge, system on this for the M day Galveston of December, County 2016. Courts at Law. "As an indication of my support for a Court Administration system for the County Courts at Law in Galveston County, I signed a request addressed to County Judge Mark Henry and the Galveston County Commissioners on December 16, 2016. A true and correct copy of the request that I signed The Honorable is attached Barbara to this declaration E. Roberts as Exhibit 1." FURTHER DECLARANT SAYETH NOT. I DECLARE, UNDER PENALTY OF PERJURY, that the foregoing testimony is true and correct, based on my personal knowledge, on this /67 day of December, 2016. The Honorable Barbara E. Roberts
Exhibit 1
County Judge Mark Henry and County Commissioners: Pursuant to Texas Government Code, 75.401, the Judges of County Court No. 1, No.2, and No.3, request Galveston County Commissioners Court approve the establishment of a "Court Administrator" system for the three Galveston County Courts at Law. If approved, and pursuant to 75.401, the Court Administrator for Galveston County Courts shall cooperate with the regional, presiding, and local administrative judges and state agencies having duties relating to the operation of the statutory county courts to promote uniform and efficient administration of justice. Pursuant to 75.401, the Court Administrator shall be appointed by the judges of the three statutory County Courts served by the Court Administrator and the Court Administrator shall serve at the pleasure of those judges. Wetia. If approved, we estimate that approximately one-third of the 4ases filed in the Galveston County district and county courts will be handled though the Court Administrator for the County Courts. Respec pitted by: Jo11 Grady, Jud Galveston Coun Court at Law No. 1 Barbara E. Roberts, Judge Galveston County Court at Law No. 2 Jack Ewing, Judge Galveston-county Cou at Law No. 1
Exhibit B
Exhibit 1