Faye Comte and Laura Severt v. Smith County Commissioners Court and Joel P. Baker, Cary Nix, Jeff Warr, Joann Hampton, and Terry Phillips, Each in His or Her Official Capacity as a Smith County Commissioner

ACCEPTED

06-14-00086-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

3/20/2015 5:03:42 PM

DEBBIE AUTREY

CLERK

No. 06-14-00086-CV

________________________________________ FILED IN

6th COURT OF APPEALS

In The TEXARKANA, TEXAS

3/23/2015 8:22:00 AM

Sixth Court of Appeals DEBBIE AUTREY

Clerk

Texarkana, Texas

________________________________________

Faye Comte & Laura Severt,

Appellants,

v.

Smith County Commissioners Court, Joel Baker,

Cary Nix, Jeff Warr, Joann Hampton & Terry Phillips

Appellees.

__________________________________________________

On Appeal from the 241st District Court

of Smith County, Texas

Trial Cause No. 13-2492-C

REPLY BRIEF OF APPELLANT

Laura S. Severt

State Bar No. 24051886

lsevert@jbwlawfirm.com

J. BENNETT WHITE, P.C.

P.O. Box 6250

Tyler, Texas 75711

Telephone No. (903) 597-4300

Telecopier No. (903) 597-4330

Appellate Counsel

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS

Index of Authorities ...................................................................................................................................... 3

Brief of the Argument in Reply .................................................................................................................... 2

A.  COMPLIANCE WITH THE 321ST JUDICIAL DISTRICT COURT’S ORDERS DOES

NOT REQUIRE AN AMENDMENT OF THE EXPIRED BUDGET FOR THE FISCAL

YEAR OF 2013 ............................................................................................................................... 2

B.  COMPLIANCE WITH THE 321ST JUDICIAL DISTRICT COURT’S ORDERS IS NOT

BARRED BY THE TEXAS CONSTITUTION OR THE LOCAL GOVERNMENT

CODE ............................................................................................................................................... 2

C.  APPELLANTS HAVE NO ADEQUATE REMEDY AT LAW ..................................................... 3

D.  LEGISLATIVE IMMUNITY DOES NOT APPLY ........................................................................ 4

E.  THIS IS NOT A SUIT FOR MONEY DAMAGES; THEREFORE, GOVERNMENTAL

AND LEGISLATIVE IMMUNITY DO NOT APPLY. .................................................................. 5

F.  IMMUNITY DOES NOT BAR SUIT FOR FUNDS WRONGFULLY WITHHELD ................... 8

G.  IMMUNITY DOES NOT BAR LIABILITY .................................................................................. 8

H.  WHEN THE STATE BRINGS SUIT, THE STATE VOLUNTARY WAIVES

IMMUNITY ................................................................................................................................... 10

I.  THE FACTS IN KAUFMAN COUNTY V. COMBS ARE NOT APPLICABLE TO

APPELLANTS’ CASE .................................................................................................................. 11

J.  SUITS INITIATED BY THE DEPARTMENT OF FAMILY AND PROTECTIVE

SERVICES ARE FAR MORE ANALAGOUS TO CRIMINAL PROCEEDINGS THAN

CIVIL, THEREFORE, THE REASONING IN SMITH v. FLACK SHOULD APPLY. ............... 12

Conclusion .................................................................................................................................................. 14

Certificate of Compliance ........................................................................................................................... 15

Certificate of Service .................................................................................................................................. 16

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INDEX OF AUTHORITIES

Cases

Alice National Bank v. Edwards, 383 S.W.2d 482 (Tex.Civ.App.1964, ref., n.r.e) ................................... 13

Anderson v. Ashe, 90 S.W. 872 (Tex. 1906) ............................................................................................... 13

Anderson v. City of McKinney, 236 S.W.3d 481, 483 (Tex.App.—Dallas 2007, no pet.) ............................ 6

Anderson, Clayton & Co. v. State, 122 Tex. 530, 62 S.W.2d 107 (Tex. 1933) .......................................... 10

Bryan v. City of Madison MS, 213 F.3d 267 (5th Cir. 2000) ......................................................................... 5

Chrestman v. Tompkins, 5 S.W.2d 257 (Tex.Civ.App.—Dallas 1928) ........................................................ 8

City of Mission v. Eureka Fire Hose Co., 67 S.W.2d 455, 456 (Tex. Civ. App.—San Antonio 1933, writ

dism’d w.o.j.) ............................................................................................................................................ 3

City of San Antonio v. Routledge, 102 S.W. 756, 765 (Tex. Civ App. 1907, writ ref’d) .............................. 4

City of Seagoville v. Lyttle, 227 S.W.3d 401 (Tex. App.--Dallas 2007, no writ) ......................................... 6

Clear Lake City Water Auth. v. Salazar, 781 S.W.2d 347, 349 (Tex.App.-Houston [14th Dist.] 1989, no

writ) ........................................................................................................................................................... 5

Commonwealth of Massachusetts v. Davis, 160 S.W.2d 543 (Tex. 1942, reversed in part 140 Tex. 398,

168 S.W.2d 216) ............................................................................................................................... 10, 16

Denman v. Coffee, 91 S.W. 800 (Tex. Civ. App. 1905) ............................................................................. 13

Garrett v. City of Wichita Falls, 334 S.W.2d 624 (Tex.Civ.App.—Fort Worth, 1960, no writ) .................. 4

Gibson v. Honorable Herb March, 710 S.W.2d 107 (Tex. App.—El Paso 1986) ....................................... 8

Harris County v. Walsweer, 930 S.W.2d 659 (Tex.App.—Houston [1st Dist.] 1996, writ denied) .............. 4

Hawthorne v. La-Man Constr., Inc., 672 S.W.2d 255, 258 (Tex.App.--Beaumont 1984, no writ) ............... 4

Hinojosa v. Tarrant Cnty, 355 S.W.3d 812 (Tex. App. –Amarillo 2011, no writ) ....................................... 6

Hughes v. Tarrant County Texas, 948 F.2d 918, 920 (5th Cir. 1991) ........................................................... 5

In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) ............................................................................................. 12

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In re Perry, 60 S.W.3d 857, 860 (Tex.2001) ................................................................................................ 5

In the Interest of M.V.G., a Child, 285 S.W.3d 576 (Tex.App.—Waco 2009) ........................................... 13

Kaufman County v. Combs, 393 S.W.3d 336 (Tex. App.—Dallas, 2012, pet. denied) .............................. 11

Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 8 (Tex. 2000) ............................................................. 8, 9

Mitchell v. Ramfield, 523 S.W.2d 456 (Tex.Civ.App.—Austin 1975, no writ) ............................................ 7

Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1987) ............................................................................ 13

Smith v. McCoy, 533 S.W.2d 457 (Tex.Civ.App.1976) writ dism'd w.o.j. .......................................... passim

State v. Martin, 347 S.W.2d 809, 814 (Tex.Civ.App.--Austin 1961, writ ref'd n.r.e.) ............................... 10

Strickland v. Washington, 466 U.S. 668, 687 (1984) .................................................................................. 12

Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 643 (Tex. 2004) ....................................... 9

Texas Natural Resources Conservation Com’n v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002) .................... 6

W.D. Haden Co. v. Dodgen, 308 S.W.2d 838, 841 (Tex. 1958) ................................................................... 8

Waller County v. Freelove, 210 S.W.2d 602, 604 (Tex. Civ. App.—Galveston 1948, writ ref’d n.r.e) .. 2, 3

Statutes

Tex. Fam. Code § 107.012 ............................................................................................................................ 9

Tex. Fam. Code § 107.015 ............................................................................................................................ 9

Tex. Fam. Code. Ann. §§ 107.12, 107.15 (Vernon 2014) .......................................................................... 10

Tex. Prob. Code Ann. §669(a) .................................................................................................................... 11

Texas Local Gov’t Code §115.021 ............................................................................................................... 9

Texas Local Gov’t. Code §113.064 .............................................................................................................. 9

Other Authorities

38 Tex.Jur.3rd, Extraordinary Writs, § 115, pp. 240-241 ............................................................................. 7

TEX. ATT’Y GEN. OP. NO. GA-0340 (2005) ............................................................................................ 2

iv

TO THE HONORABLE SIXTH COURT OF APPEALS:

The law regarding payment of court appointed attorneys ad litem for

indigent parents and children is clear. The duty of the county auditor to audit and

approve claims and present them to the commissioners court is clear. The duty of

the commissioners court to audit and settle all valid claims is clear. Requiring the

additional step of litigation to obtain payment for services rendered and already

previously ordered by a district court negates the very laws established by the

Texas legislature. Further, to interpret the law as Appellees contend would deprive

any court of jurisdiction to require any governmental body to pay its obligations,

whether incurred through judicial order, established by a lawsuit, or otherwise.

This simply is not and cannot be the law.

Appellants have met the standard for issuance of mandamus. Appellants

have presented to the Smith County Commissioners Court, a valid, fixed, and final

order approved by the auditor. The Texas Constitution, Texas statutes, legislative

immunity, and government immunity do not shield the Smith County

Commissioners Court from the duty to pay court-appointed ad litem attorneys.

BRIEF OF THE ARGUMENT IN REPLY

A. COMPLIANCE WITH THE 321ST JUDICIAL DISTRICT COURT’S

ORDERS DOES NOT REQUIRE AN AMENDMENT OF THE

EXPIRED BUDGET FOR THE FISCAL YEAR OF 2013

Appellees contend that payment of the properly presented Ad Litem fees

cannot be made because the 2013 Fiscal Year Budget cannot be amended. An

inability to amend a budget does not extinguish an obligation. In fact, a careful

reading of the Attorney General’s opinion cited by Appellees clearly states that the

inability of a commissioners court to amend an expired budget does not preclude

payment of an unpaid obligation in a later budget. TEX. ATT’Y GEN. OP. NO.

GA-0340 (2005). See generally Waller County v. Freelove, 210 S.W.2d 602, 604

(Tex. Civ. App.—Galveston 1948, writ ref’d n.r.e) (suit by architect for fees not

precluded by county’s failure to include fees in budget).

B. COMPLIANCE WITH THE 321ST JUDICIAL DISTRICT COURT’S

ORDERS IS NOT BARRED BY THE TEXAS CONSTITUTION OR

THE LOCAL GOVERNMENT CODE

Appellees contend that the commissioners are relieved from any obligation

to pay the properly presented and approved Ad Litem fees because the amount

owed to Appellants exceeds the amount budgeted in the 2013 Fiscal Year Budget,

thereby making the amount owed an unconstitutional debt. Although Appellants

do not agree that their fees in any way violate the Texas Constitution, if deemed so,

2

the Commissioners are not relieved of their payment obligation as the County has

received a benefit for the services already performed by Appellants. See generally

Freelove, 210 S.W.2d at 604 (suit by architect for fees not precluded by county’s

failure to include fees in budget). Counties and municipalities will not be

permitted to accept and utilize property or services and evade the payment of

reasonable compensation because of an alleged technical defect in their

procurement. Id. Municipalities should be and are compelled to act with some

degree, at least, of honesty and uprightness in their dealings with the public, and

should not be permitted to evade payment of the obligations on bare technicalities,

when they received full value from the commodities furnished them. City of

Mission v. Eureka Fire Hose Co., 67 S.W.2d 455, 456 (Tex. Civ. App.—San

Antonio 1933, writ dism’d w.o.j.).

C. APPELLANTS HAVE NO ADEQUATE REMEDY AT LAW

Appellants have already obtained orders from the 321st District Court of

Smith County requiring the ad litem fees be paid from the county’s general fund.

Those orders were examined and approved for payment by the County Auditor and

deemed to be in compliance with Texas Family Code and the Tex. Loc. Gov’t

Code. (C.R. at 23-28) Appellants have established their right to the fees, yet the

Commissioners Court withholds payment in complete disregard of the applicable

statutes and the District Court’s Orders. The issue is not whether Appellants have

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an adequate remedy to obtain a judgment; the issue is whether the commissioners

court can evade paying a valid claim. Appellees insist that they cannot be forced

to pay. The fact of the matter here is that without mandamus, Appellants have no

remedy to collect a rightful claim.

A municipal corporation is as much bound to pay a judgment which the law

has authorized against it as is an individual or corporate defendant. See Garrett v.

City of Wichita Falls, 334 S.W.2d 624 (Tex.Civ.App.—Fort Worth, 1960, no writ).

No adequate remedy exists for Appellants except mandamus, or possibly the

eventual appointment of a receiver. City of San Antonio v. Routledge, 102 S.W.

756, 765 (Tex. Civ App. 1907, writ ref’d). Where the amount of demand is

absolutely fixed and determined, is here by Judicial Order properly approved by

the County Auditor, and it is the duty of the Commissioners to provide for

payment, mandamus may issue to compel payment. See, id at 766; see also Harris

County v. Walsweer, 930 S.W.2d 659 (Tex.App.—Houston [1st Dist.] 1996, writ

denied)(citing Hawthorne v. La-Man Constr., Inc., 672 S.W.2d 255, 258

(Tex.App.--Beaumont 1984, no writ).

D. LEGISLATIVE IMMUNITY DOES NOT APPLY

Legislative immunity protects individuals from liability when acting in a

legislative capacity. Thus, the applicability of that defense turns on the nature of

the conduct at issue. See, Clear Lake City Water Auth. v. Salazar, 781 S.W.2d 347,

4

349 (Tex.App.-Houston [14th Dist.] 1989, no writ) (applying immunity to local

water board). An action is legislative in nature when it reflects a discretionary,

policymaking decision of general application rather than an individualized decision

based on particular facts. In re Perry, 60 S.W.3d 857, 860 (Tex.2001). Further, if

an action singles out specific individuals and affects them differently from others,

it is not legislative in nature. See Hughes v. Tarrant County Texas, 948 F.2d 918,

920 (5th Cir. 1991).

The decision by the Smith County Commissioners Court to deny payment to

noncontract attorneys was not based on a general policy with regard to all non-

contract attorneys in every court in Smith County, but was specific to only a

handful of attorneys, and the 321st Judicial District. This “policy” is based on

specific acts of a specific judge. Further, it affected non-contract attorneys

differently from contract attorneys who were appointed under the same statutes and

performed the same job. This was not a legislative act, and legislative immunity

does not apply. See, Bryan v. City of Madison MS, 213 F.3d 267 (5th Cir. 2000);

see also, Hughes, 948 F.2d at 920.

E. THIS IS NOT A SUIT FOR MONEY DAMAGES; THEREFORE,

GOVERNMENTAL AND LEGISLATIVE IMMUNITY DO NOT

APPLY.

Appellees’ mischaracterize Appellants request for mandamus as a

“disguised” claim for money damages. The cases cited by Appellees discuss

5

mandamus where the actual relief sought was the payment of unspecified back pay

money damages. See eg. City of Seagoville v. Lyttle, 227 S.W.3d 401 (Tex. App.--

Dallas 2007, no writ); see also, Hinojosa v. Tarrant Cnty, 355 S.W.3d 812 (Tex.

App. –Amarillo 2011, no writ). In each case, mandamus was being sought to

compel the performance of an act where the underlying claim was barred by

immunity. Private parties cannot circumvent the State’s sovereign immunity from

suit by characterizing a suit for money damages, such as a contract dispute, as a

declaratory-judgment claim. Such a claim would be an impermissible attempt to

control state action by imposing liability on the State. See Texas Natural

Resources Conservation Com’n v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002);

Anderson v. City of McKinney, 236 S.W.3d 481, 483 (Tex.App.—Dallas 2007, no

pet.).

Appellants are not seeking damages, but instead seeking enforcement of

valid court orders for payment. Appellants acknowledge that the prayer in their

brief requests that the amount owed be calculated. This request was included in

the prayer simply to account for the fact that there were five attorneys ad litem

seeking relief in the court below but only two of these five are seeking review by

this Court. Appellees have not challenged the amounts or validity of the claims

sought or that any of Appellants’ specific invoices were unreasonable.

6

Appellants have already obtained orders from the 321st District Court of

Smith County requiring the fees to be paid from the county’s general fund, which

were examined and approved for payment by the County Auditor and deemed to be

in compliance with Texas Family Code and the Tex. Loc. Gov’t Code. (C.R. at

23-28.) Appellants are not seeking that this court assess an unknown amount of

damages; Appellants are not seeking damages for work not performed; Appellants

are not seeking attorneys fees in the prosecution of this matter; and Appellants and

not seeking interest applied to the fees wrongfully withheld. Appellants are simply

requesting that Mandamus issue to compel the Commissioners Court to follow the

law and the 321st Judicial District Court’s orders.

"It has been said that mandamus is but the 'means' or 'execution' to enforce

the judgment in favor of those to whom the writ has been awarded, that its function

is to execute, not to adjudicate, and that mandamus does not function to establish

as well as enforce, a claim of uncertain merit." 38 Tex.Jur.3rd, Extraordinary

Writs, § 115, pp. 240-241. (Emphasis supplied.) See also Mitchell v. Ramfield, 523

S.W.2d 456 (Tex.Civ.App.—Austin 1975, no writ); Smith v. McCoy, 533 S.W.2d

457 (Tex.Civ.App.1976) writ dism'd w.o.j.

7

F. IMMUNITY DOES NOT BAR SUIT FOR FUNDS WRONGFULLY

WITHHELD

Immunity involves two issues; immunity from suit and immunity from

liability. Where statutory or constitutional provisions create an entitlement to

payment, suits seeking to require state officers to comply with the law are not

barred by immunity merely because they compel the state to make those payments.

W.D. Haden Co. v. Dodgen, 308 S.W.2d 838, 841 (Tex. 1958). See, Gibson v.

Honorable Herb March, 710 S.W.2d 107 (Tex. App.—El Paso 1986) (mandamus

issued to compel judge to order a reasonable fee for Relator’s appointed service);

see also, Chrestman v. Tompkins, 5 S.W.2d 257 (Tex.Civ.App.—Dallas 1928)

(mandamus issued to compel auditor of city to officially countersign warrant upon

county treasurer for $225 for attorney fees rightfully earned and not in

controversy). The statutory provisions entitling Appellants to payment have been

adequately briefed in Appellants’ Brief.

G. IMMUNITY DOES NOT BAR LIABILITY

The Supreme Court has found waiver of immunity even without express

“magic language” when the provision in question would be meaningless unless

immunity is waived. Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 8 (Tex.

2000) (holding that the anti-retaliation statute had no meaning absent waiver of

sovereign immunity).

8

The legislature stated that an attorney ad litem shall be appointed to

represent children or indigent parents in a suit filed by a governmental entity

requesting termination of the parent-child relationship or to be named conservator

of the child. Tex. Fam. Code § 107.012. Further, the legislature stated that the

attorney ad litem shall be paid from the general fund of the county. Tex. Fam.

Code § 107.015. Further, the auditor must examine each claim and approve it

before the meeting of the Commissioners Court. Texas Local Gov’t. Code

§113.064. The legislature stated that the commissioners court of a county shall

audit and settle all accounts against the county and shall direct payment of those

accounts. Texas Local Gov’t Code §115.021.

Considering whether statutory provisions were intended by the Legislature

to waive immunity, courts may ask whether a statute makes any sense if immunity

is not waived. Kerrville State Hosp., 28 S.W.3d at 6; accord, Tex. Dep't of Transp.

v. City of Sunset Valley, 146 S.W.3d 637, 643 (Tex. 2004). Unless the

commissioners court is required to tender payment, the statute becomes

meaningless; therefore, there must be redress for failure to comply. That redress is

mandamus.

9

H. WHEN THE STATE BRINGS SUIT, THE STATE VOLUNTARY

WAIVES IMMUNITY

The fees incurred by Appellants were the result of the actions by the State.

Immunity is waived by the State when it brings suit. State v. Martin, 347 S.W.2d

809, 814 (Tex.Civ.App.--Austin 1961, writ ref'd n.r.e.) (holding that when the State

brings suit, it voluntarily waives its immunity from any defenses, including

counterclaims incident to, connected with, arising out of, or germane to the

controversy involved in the State's suit). See also Anderson, Clayton & Co. v.

State, 122 Tex. 530, 62 S.W.2d 107 (Tex. 1933); Commonwealth of Massachusetts

v. Davis, 160 S.W.2d 543 (Tex. 1942, reversed in part 140 Tex. 398, 168 S.W.2d

216).

All of the fees sought resulted from suits filed by a government entity for the

termination of the parent-child relationship or for the state to be named conservator

of the child. The state’s suits required appointment of ad litems and the fees are

required to be paid out of the general fund of the county. See Tex. Fam. Code.

Ann. §§ 107.12, 107.15 (Vernon 2014). Because these fees were the direct result

of suits filed by a state entity, the state has waived the defense of immunity for the

fees incurred.

10

I. THE FACTS IN KAUFMAN COUNTY V. COMBS ARE NOT

APPLICABLE TO APPELLANTS’ CASE

Appellees’ assertion that Kaufman County v. Combs is in anyway analogous

to this case clearly indicates a misunderstanding of the underlying facts of both

cases. Combs was appointed attorney ad litem and guardian of the estate in a

guardianship proceeding in Kaufman County. Upon completion of the

guardianship, Combs was awarded $143,168.95 in fees and expenses “in

performance of her duties in her Court appointments as Attorney Ad Litem of

WARD and Guardian of the Estate of WARD.” Kaufman County v. Combs, 393

S.W.3d 336 (Tex. App.—Dallas, 2012, pet. denied). The order awarding attorneys

fees in Combs did not order that the fees be paid by the County, which was in

violation of the Tex. Prob. Code Ann. §669(a), stating in relevant part that costs of

the proceeding shall be paid out of the county treasury, and judgment of the court

shall be issued accordingly. Combs, 393 S.W.3d 336, note 2. Combs presented the

Order to the Kaufman County Commissioners Court requesting payment from the

County pursuant to Section 669 of the Texas Probate Code. Id. at 340. Pursuant to

section 113.064(a), of the Texas Local Government Code, the County Auditor

denied approval because he was unable to determine what amount, if any, was the

responsibility of the county. Id. The facts in Combs are distinguishable to

Appellants’ case. Combs did not have an order specifically directing the county to

11

pay for the fees incurred; therefore, the order was not binding on the county. Id.

Further, Combs’ claim was never approved by the auditor, so payment by the

commissioners court could not be made. Id. Moreover, Combs did not comply

with the statutory requirements of either the Probate Code or the Government

Code; therefore, she had no right to payment by the county for the fees incurred.

Although the judgment was overturned, Combs’ award of $143,168.95 for the fee

order, plus interest, and $558,114.62 in attorney’s fees proves that she was seeking

much more than the enforcement of a fixed claim rightfully owed.

J. SUITS INITIATED BY THE DEPARTMENT OF FAMILY AND

PROTECTIVE SERVICES ARE FAR MORE ANALAGOUS TO

CRIMINAL PROCEEDINGS THAN CIVIL, THEREFORE, THE

REASONING IN SMITH v. FLACK SHOULD APPLY.

Because of the constitutional issues involved in both criminal and DPFS

cases, Courts have routinely applied analysis developed in criminal cases to

parental termination cases governed by section 263.405 of the Family Code. The

statutory right to counsel in parent termination cases embodies the right to

effective counsel. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003)(the two-pronged

analysis employed in Strickland v. Washington, 466 U.S. 668, 687 (1984), is also

used in termination cases). In the Interest of M.V.G, the appellate court noted that

the legislature clearly gave trial courts the same duty to appoint counsel to

represent indigent defendants, and required the payment of those attorneys fees

12

from the general fund of the county in both criminal and DFPS termination cases;

therefore, the court employed the same analysis as in a criminal case to determine

whether the appellate court or the trial court was to decide if an appointed attorney

was permitted to withdraw. In the Interest of M.V.G., a Child, 285 S.W.3d 576

(Tex.App.—Waco 2009) (order abating appeal) (per curium). Further, Smith v.

Flack, 728 S.W.2d 784 (Tex. Crim. App. 1987) relied heavily on a number of civil

cases to determine if mandamus should issue. Anderson v. Ashe, 90 S.W. 872

(Tex. 1906) (district court held to have jurisdiction of a mandamus proceeding to

compel a county auditor to sign a warrant); Denman v. Coffee, 91 S.W. 800 (Tex.

Civ. App. 1905); Alice National Bank v. Edwards, 383 S.W.2d 482

(Tex.Civ.App.1964, ref., n.r.e) (per curium).

13

CONCLUSION

Appellants qualify for mandamus relief, which is not barred by the

Constitution, the statutes of the State of Texas, nor immunity. This Court should

reverse the district court’s decision to deny Appellants’ Petition for Writ of

Mandamus and remand their case to the district court with instructions that the

district court issue a writ of mandamus compelling the Smith County

Commissioners Court and its members to direct payment to the Appellants for the

owed amounts.

RESPECTFULLY SUBMITTED,

J. BENNETT WHITE, P.C.

P.O. Box 6250

Tyler, Texas 75711

Telephone No. (903) 597-4300

Telecopier No. (903) 597-4330

LAURA S. SEVERT

lsevert@jbwlawfirm.com

Texas Bar No. 24051886

Attorneys for Appellants

14

CERTIFICATE OF COMPLIANCE

I hereby certify that this Reply Brief of Appellants includes 2,867 words and

thus complies with Texas Rule of Appellate Procedure 9.4.

LAURA S. SEVERT

15

CERTIFICATE OF SERVICE

I hereby certify that on March 20, 2015, a true and correct copy of the

foregoing was served on the following counsel of record via email and U.S. mail,

postage prepaid:

Robert Davis

Flowers Davis, PLLC

1021 ESE Loop 323, Suite 200

Tyler, Texas 75701

LAURA S. SEVERT

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