in Re Galveston County Judge Mark Henry, Galveston County Commissioner Ryan Dennard, Galveston County Commissioner Joe Giusti, Galveston County Commissioner Stephen Holmes, Galveston County Commissioner Ken Clark, in Their Official Capacities as the Galve

Opinion issued April 14, 2015

In The

Court of Appeals

For The

First District of Texas

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NO. 01-14-00820-CV

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IN RE GALVESTON COUNTY JUDGE MARK HENRY,

GALVESTON COUNTY COMMISSIONER RYAN DENNARD,

GALVESTON COUNTY COMMISSIONER JOE GIUSTI,

GALVESTON COUNTY COMMISSIONER STEPHEN HOLMES, AND

GALVESTON COUNTY COMMISSIONER KEN CLARK,

IN THEIR OFFICIAL CAPACITIES AS THE

GALVESTON COUNTY COMMISSIONERS COURT, Relators.

Original Proceeding on Petition for Writ of Mandamus

OPINION CONCURRING IN

DENIAL OF EN BANC RECONSIDERATION

Relators have filed a petition for a writ of mandamus, challenging an ex

parte order signed by the judge of the 56th Judicial District Court in his capacity as

Galveston County Administrative District Judge. The order, styled “Ex Parte

Honorable Mark Henry and Galveston County Commissioners Court,” states in its

entirety:

On this the 24th day of September, 2014, the Administrative

Judge of the Galveston County District Courts considered the actions

of the Honorable Mark Henry and the Galveston County

Commissioners Court in terminating the employment of the Galveston

County Justice Administrator on or about July 24, 2014, in proceeding

to post the position for employment of a new justice administrator and

in proceeding to interview candidates to fill the position. The

authority to appoint and terminate court personnel lies with the courts,

not the county judge nor the commissioners court and the county

judge’s termination of the justice administrator and proposed selection

of a replacement violates the separation of powers doctrine and

infringes on the courts’ inherent powers. These actions also violate

Local Government Code Sec. 151.004 which prohibits the county

judge and commissioners court from attempting to influence the

appointment of a person to a position authorized by the

commissioners court for the department of another district, county or

precinct officer in the county.

It is therefore ORDERED AND DECREED that the actions of

the county judge and commissioners court of terminating the

employment of the Galveston County Justice Administrator was a

void act without legal authority and is hereby NULLIFIED and set

aside. Further that the county judge and commissioners court are

ordered to cease and desist the process of attempting to hire a new

justice administrator.

A panel of this court denied the petition for mandamus without an opinion

explaining the ruling, as authorized by Appellate Rule 52.8(d). I agree the petition

was correctly denied, but because of the unusual circumstances I write separately

to explain my reasoning.

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Whatever the merits of the relators’ complaints about the ex parte order, they

have an adequate remedy by appeal. There has been no presentation of a dispute to

a court, no presentation of evidence, no fact finding, and no application of law to

facts by a judge to resolve this dispute between the administrative judge and the

commissioners court. That process is available to resolve the dispute, and an

appeal is available from the final resolution. E.g., Weber v. Walker, 591 S.W.2d

559, 561 (Tex. Civ. App.—Dallas 1979, no writ) (cities filed suit asking district

court to order commissioners court to provide funds for sheriff’s personnel);

Comm’rs Court of Lubbock Cnty. v. Martin, 471 S.W.2d 100, 103 (Tex. Civ.

App.—Amarillo 1971, writ ref’d n.r.e.) (declaratory judgment action challenging

constitutionality of statute regarding appointment and compensation of probation

personnel); Wichita Cnty. v. Griffin, 284 S.W.2d 253, 254 (Tex. Civ. App.—Fort

Worth 1955, writ ref’d n.r.e.) (official court reporters filed suit in district court for

writ of mandamus to compel commissioners court to pay increased salaries as

ordered by the district courts); see also Vondy v. Comm’rs Court of Uvalde Cnty.,

620 S.W.2d 104, 104–05 (Tex. 1981) (mandamus sought by constable in district

court to compel commissioners court to set a reasonable salary for constable’s own

office).

We should not exercise our mandamus jurisdiction in this circumstance

because the ordinary judicial process is available, and it results in a remedy by

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appeal. Cf. Eichelberger v. Eichelberger, 582 S.W.2d 395, 400 (Tex. 1979) (citing

Pope v. Ferguson, 445 S.W.2d 950 (Tex. 1969)).

Michael Massengale

Justice

The en banc court consists of Chief Justice Radack, and Justices Jennings, Keyes,

Higley, Bland, Massengale, Brown, Huddle, and Lloyd.

Justice Massengale, joined by Justice Brown, concurring in the denial of en banc

reconsideration.

Publish. TEX. R. APP. P. 47.2(b).

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