the Honorable Mark Henry, County Judge of Galveston County v. the Honorable Lonnie Cox, Judge of the 56th District Court of Galveston County

Opinion issued December 22, 2015

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-15-00583-CV

———————————

THE HONORABLE MARK HENRY, COUNTY JUDGE

OF GALVESTON COUNTY, Appellant

V.

THE HONORABLE LONNIE COX, JUDGE OF THE 56TH DISTRICT

COURT OF GALVESTON COUNTY, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Case No. 15-CV-0583

OPINION

In this interlocutory appeal,1 appellant, the Honorable Mark Henry, County

Judge of Galveston County, challenges the district court’s2 order granting appellee,

1

See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (Vernon Supp. 2015).

the Honorable Lonnie Cox, Judge of the 56th District Court and Local

Administrative Judge of Galveston County, a temporary injunction suspending the

termination of the employment of Bonita Quiroga, the Galveston County Director

of Judicial Administration, directing the reinstatement of her employment, and

enjoining Henry and “his agents, servants, and representatives, and those acting in

concert with him,” from taking action against Quiroga, her department, and her

staff. In four issues, Henry contends that the “temporary injunction order has

become moot on appeal,” the district court lacked subject-matter jurisdiction to

grant the temporary injunction, the district court “did not validly exercise its

supervisory jurisdiction” in granting the temporary injunction, and the temporary

injunction is otherwise invalid.

We affirm.

Background

In his amended petition, Judge Cox alleges that in 2000, the judges of the

Galveston County District Courts and County Courts at Law “selected” Quiroga as

Director of Judicial Administration (“DJA”) and the Galveston County

Commissioners Court approved their selection. Although her DJA duties were

“overwhelmingly judicial in nature,” Quiroga also performed certain duties for the

county judge and commissioners.

2

The Honorable Sharolyn Wood, sitting by assignment.

2

Fourteen years later, on July 24, 2014, Judge Henry, who had taken office in

2011, purported to unilaterally terminate Quiroga’s employment as DJA. In the

months that followed, certain Galveston County District Court Judges, County

Court at Law Judges, and a Probate Court Judge (collectively, “the judges”),3

speaking through Judge Cox, the Local Administrative Judge, endeavored to

reinstate Quiroga to her position. At Cox’s request, the Office of Court

Administration of the State of Texas (“OCA”) sought an opinion in the matter from

the Office of the Attorney General of the State of Texas (“OAG”).

In August 2014, Peri Bluemer, Chief Human Resources Officer for

Galveston County, acting at Judge Henry’s direction, publicly posted Quiroga’s

position to solicit applications, conducted telephone interviews with candidates,

and began scheduling interviews with the three “finalists.”

On September 24, 2014, the day that Bluemer had scheduled final interviews

to begin, Judge Cox issued an order directing that Judge Henry and the

commissioners cease searching for a replacement for Quiroga. Cox concluded that

Henry’s termination of Quiroga’s employment as DJA was “void” because the

3

The Honorable Lonnie Cox, Judge of the 56th District Court and Local

Administrative Judge; the Honorable Kelly Neves, Judge of the 10th District

Court; the Honorable John Ellisor, Judge of the 122nd District Court; the

Honorable Anne B. Darring, Judge of the 306th District Court; the Honorable

Michelle Slaughter, Judge of the 405th District Court; the Honorable Jack D.

Ewing, Jr., Judge of the County Court at Law No. 3; the Honorable Barbara

Roberts, Judge of the County Court at Law No. 2; and the Honorable Kimberly

Sullivan, Judge of the Galveston County Probate Court.

3

judges, not Henry and the commissioners, had the authority to appoint and

terminate the employment of court personnel; Henry’s termination of Quiroga’s

employment and his proposed selection of a replacement violated the Separation of

Powers Provision of the Texas Constitution4 and infringed on the inherent powers

of the Galveston County Judiciary; and Henry’s actions constituted an illegal

attempt 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.5

Days later, Judge Henry filed in this Court a petition for a writ of

mandamus, requesting that this Court vacate Judge Cox’s order. After Henry

notified the OAG of the filing of his mandamus petition, it declined to issue an

opinion on the issue of Henry’s purported termination of the employment of

Quiroga. And after this Court denied Henry mandamus relief, he filed a petition

for a writ of mandamus in the Texas Supreme Court, which also denied him relief.

Subsequently, OCA crafted a proposed compromise for the judges to submit

to Judge Henry and the commissioners. Under the proposed compromise, two

separate positions would be created: (1) “Director of Court Administration”

(“DCA”) and (2) a “public safety position.” Judge Henry and the commissioners

4

See TEX. CONST. art. II, § 1.

5

See TEX. LOCAL GOV’T CODE ANN. § 151.004 (Vernon 2008).

4

requested that the judges submit a supplemental proposal regarding the salary for

the newly proposed DCA position. On May 12, 2015, the judges attended a

“compromise meeting workshop,” at which they submitted their recommendation

that the newly proposed DCA position encompass certain duties and have an

annual salary of no less than $85,000 and no more than $120,000.

On May 29, 2015, after Judge Henry and the commissioners had not acted,

the judges issued an order, concluding that it was “in the best interest of the Court

system and the citizens of Galveston County to reinstate the position of Justice

Administrator,” which was to be filled by Quiroga, effective June 8, 2015. And

Judge Cox issued an order to “carry out the reinstatement of Quiroga,” directing

Henry to provide her with a key to her office, a personal computer with employee

email access, and an office telephone. Cox further ordered that Henry direct

“Human Resources to allow [Quiroga] to complete all paperwork necessary for her

to be reinstated as a full time employee” and the “Treasurer to reinstate and pay

[Quiroga].”

However, when Quiroga, accompanied by some of the judges and Galveston

County Sheriff H. Trochessett, arrived at the Galveston County Justice Center on

the morning of June 8, 2015, they found that the lock on Quiroga’s office door had

been changed. After the Sheriff used his own key to admit Quiroga to her office,

she discovered that her personal computer and telephone had been removed.

5

The next day, Quiroga arrived at the Justice Center to find that, once again,

the lock on her office door had been changed and she had been locked out. After

Judge Cox arranged for her to work on her personal computer in an empty office

space, Judge Henry scheduled a meeting with the commissioners court to discuss

the “[a]uthority of county and [d]istrict [c]ourt judges to appoint administrative

employees” and the filing of litigation against the judges and a judicial-conduct

complaint against Cox.

Also on June 9, 2015, Judge Cox filed in the 405th District Court of

Galveston County his original petition in the instant case, seeking injunctive relief.

The district court subsequently granted a temporary restraining order, prohibiting

Judge Henry and “all acting in concert with [him]” from taking any official action

on the agenda posted for the special meeting of June 9, 2015. In response, Henry

tabled matters in the commissioners court until June 13, 2015. And, at a June 13,

2015 “special meeting,” Henry and the commissioners “authorized” a reduction in

the salary for Quiroga’s position from $113,000 to $63,695. Even though, as noted

by Cox, Henry and the commissioners, by comparison, had previously authorized a

salary of $65,000 for a candidate who had been appointed to perform just “one” of

Quiroga’s former duties.

In his amended petition, Cox sought temporary and permanent injunctive

relief and a declaration that the “purported firing of [Quiroga] on July 24, 2014

6

was void and is void at the present time”; “subsequent purported changes to the

salary scale and administrative organization of the Galveston County Department

of Justice Administration” are “void”; and Quiroga’s salary is “as of the date of

final judgment the same rate . . . as was applicable on July 23, 2014.”

In making his request for a temporary injunction, Judge Cox asked the

district court to preserve the “last, actual, peaceable noncontested status that

preceded the controversy.” He asserted that Judge Henry’s actions were causing

harm to the Galveston County district and county courts, and he argued that the

harm is “imminent and ongoing” because Henry was continuing to “reassign”

department employees. Cox further sought “to invoke statutory rights of non-

interference”6; “enforcement of constitutional rights and powers under the inherent

power of courts to demand and receive adequate funding, personnel, and

facilities”7; and to “enforce the separation of powers” and “supervisory control” of

district courts over Henry and the commissioners court.8 And he requested an

order enjoining “Henry and all those acting in concert with him” from:

1. Taking any action on the agenda items Nos. [enumerated],

posted for the special meeting of June 9, 2015 and June 13,

2015, or any future action concerning those items[.]

6

See TEX. LOC. GOV’T CODE ANN. § 151.004.

7

See Mays v. Fifth Court of Appeals, 755 S.W.2d 78, 79 (Tex. 1988); Vondy v.

Comm’rs Court of Uvalde Cty., 620 S.W.2d 104, 109–10 (Tex. 1981).

8

See TEX. CONST. art. II, § 1, art. V, § 8.

7

2. Barring entrance by [Quiroga] to that portion of the Galveston

County Justice Center previously occupied by her as [DJA.]

3. Preventing or impeding in any way the provision of computer

services to [Quiroga] . . . [.]

4. Instructing any employee of Galveston County to disregard any

directive, instruction, or request of [Quiroga] relating to the

administration . . . [.]

5. Appointing or employing any person other than [Quiroga] to

perform the duties of specified above as the job description of

the [DJA.]

....

7. Employing or authorizing any person to fill the duties of the

posts purportedly created and pertaining to justice

administration in the meeting of June 13, 2015.

8. Reassigning or relocating any employee who occupies a

position or duties which, as of July 23, 2014, reported to

[Quiroga] as [DJA], including but not limited to . . . Gracia, and

Deputy Clint Purcell.

In his brief, filed in opposition to Judge Cox’s request for a temporary

injunction, Judge Henry contended that Cox was seeking, “by way of temporary

injunction,” the “very remedy (on many of the same grounds)” that Quiroga seeks

“in her earlier filed lawsuit.”9 He asserted that if the district court granted Cox the

temporary injunction, it would be awarding Quiroga the ultimate relief that she

seeks, i.e., reinstatement of her employment. Henry further argued that Cox’s

lawsuit is moot because the commissioners court had already “abolished”

Quiroga’s DJA position and, by order issued June 13, 2015, approved the judges’

9

Bonnie Quiroga v. Galveston Cty., Tex., No. 14-CV-1289 (212th Dist. Ct.,

Galveston Cty., Tex., filed Dec. 9, 2014).

8

application to appoint Quiroga to a new “court administrator position.” And he

argued that Cox could not invoke the judges’ statutory right of non-interference

because “Quiroga was never appointed to her position as Director” pursuant to

statute.10

At the temporary-injunction hearing, the district court admitted into

evidence copies of a 1995 commissioners court meeting agenda and minutes,

which included “authorizing the employment of a Professional Services Director

and Justice Administration Director submitted by the County Judge”; a May 1,

2000 letter from the Honorable David E. Garner, Judge of the 10th District Court

of Galveston County, to then Galveston County Judge Jim Yarborough; and a May

8, 2000 commissioner’s court agenda.

The minutes of the April 13, 1995 “Special Called Session” of the

commissioners court reflects that the then commissioners court voted to appoint Ed

Wells, who was then “employed as Court Administrator for the District Courts of

Galveston County,” to “the Director of Justice Administration.” The

commissioners agreed that “[t]he duties of the position will include continuing

helping the District Courts Administration, but also broadening that responsibility

to the County Courts at Law and also the current Justices of the Peace throughout

10

See TEX. LOC. GOV’T CODE ANN. § 151.004.

9

the county.” The minutes do not reflect that Wells was to perform any duties for

the commissioners court.

After Wells had subsequently resigned his position, Judge Garner, the Local

Administrative Judge, acting on behalf of three district court judges, two county

court at law judges, and a probate judge, submitted to then County Judge

Yarborough a May 1, 2000 letter, stating that “after careful consideration of the

applications for the position of Director of Justice Administration for Galveston

County,” the Galveston County judges collectively recommended that Bonnie

Quiroga be appointed to fill the vacancy. They further requested that the “matter

be placed on the [commissioners court’s] agenda for action.” And the May 8, 2000

commissioners court agenda includes “Consideration of appointment of Director of

Justice Administration submitted by the Administrative Law Judge.” The

commissioners court subsequently ratified Quiroga’s appointment.

The district court also admitted into evidence a 2005 “Job Description

Certification,” signed by Quiroga, and various excerpts of “Program Budget[s]”

from fiscal years 2004 and 2009 through 2012. The excerpts contain, for each

year, an organizational chart, which shows the “commissioners court” in a position

over the department of “Justice Administration,” but includes in a position below

the department only the duties of “Court Collections,” “Justice of Peace Task

Force,” “Law Library,” and “Pre-Trial Release.” The 2005 “Job Description

10

Certification” reflects that Quiroga reported to the “County Judge.” However, the

“Position Summary,” contained in the description, states that she “manages,

coordinates, directs, and plans the operations and activities of all courts.” And it

lists her “Essential Functions” as follows:

 Oversees the Texas Fair Defense Act-Galveston County Plan to

ensure compliance with all procedures.

 Prepares and presents monthly activity and status reports, as

requested or required.

 Provides on-call assistance to judiciary, county jail, and related

county departments.

 Develops, implements, and oversees collection procedures for

the county courts.

 Coordinates and schedules courtroom security.

 Plans, schedules, and implements requests by visiting judges,

including courtroom space, lodging, and travel.

 Audits and processes claims for payment of indigent

representation.

 Manages caseloads; develops and implements more efficient

procedures for processing dockets and caseflow.

 Determines eligibility of attorneys to serve under the Texas Fair

Defense Act-Galveston County Plan.

 Maintains statistical data and records on caseflow and case

management.

 Develops and implements automated documents for use by the

court.

 Provides for the comfort, convenience, and security of jurors.

 Develops and maintains court calendar.

 Plans and assigns space for court hearings and court-related

services.

11

 Assists in the preparation, review, and implementation of

legislation affecting the courts and related county departments.

 Assesses and analyzes the court’s current and future technology

needs.

 Plans and coordinates training for court employees.

 Inspects property in court, arranging for maintenance, repairs,

and replacement as necessary.

 Directs the administrative operations of the Justice

Administration Department, including development of all

department and court budgets, audit and approval of department

expenditures and payroll, supervision and discipline of

employees, and related duties.

 Performs other related duties as assigned.

Judge Henry testified that he took office as Galveston County Judge on

January 1, 2011 and is a member of the commissioners court.11 From 2000 to July

24, 2014, Quiroga was the DJA and reported to the county judge and the

commissioners court. He explained that “because it became convenient over

time,” the DJA position had both judicial and non-judicial responsibilities. Henry

admitted that on July 24, 2014, he terminated Quiroga’s employment solely on his

own initiative as county judge, and not on behalf of the commissioners court.

Although he had discussed terminating Quiroga’s employment with one of the

other commissioners, he did not raise the matter at a commissioners court meeting,

nor did he confer with the judges before terminating her employment. Henry also

11

The County Judge is the “presiding officer” of the County Commissioners Court.

TEX. CONST. art. V, § 18(b).

12

conceded that neither he nor the commissioners court had given Quiroga any prior

job-performance reviews, nor had there been any documented dissatisfaction with

her job performance. However, he opined that it was “in the public’s best interest”

to amend the 2015 fiscal-year budget and restructure and reorganize certain County

departments. He noted that after he had terminated Quiroga’s employment, “it was

important to have that role filled,” and he assigned Bluemer to “spearhead[]” the

effort.

Judge Henry further testified that for “months” after he had terminated

Quiroga’s employment, he and the judges had discussed the “possible mechanism

by which [they] could appoint personnel.” And the judges “agreed” that the

county law library, building facilities, personal bonds, and collections were

“exclusively in the domain” of the commissioners court. In May 2015, after the

judges submitted an application to the commissioners court seeking a “pay grade”

for the new position of DCA in the range of $85,000 to $120,000, Henry assigned

his chief of staff, Tyler Drummond, to “find internal and external comparable[]”

positions. Based on Drummond’s research, Henry and the commissioners court set

an annual salary for the new DCA position at $63,695. And the district court

admitted into evidence a June 9, 2015 commissioners court order, which shows

that they set the salary range for the new DCA position at $57,705 to $63,695.

13

Although the commissioners court had, prior to Judge Henry’s purported

termination of Quiroga’s employment, approved her DJA salary of $113,000, it cut

the salary for the new DCA position by $49,305 because, as per Henry, “all” the

commissioners court “functions” were removed. He claimed that the new DCA

position would have “approximately 25 percent of the responsibility that the old

[DJA] position had,” based on the number of people reporting to the new DCA,

although the number of judges to whom the DCA would report was not considered,

nor was the gravity and time commitment of one duty over another. Henry noted

that the “Pre-Trial Release Department” had been renamed the “Personal Bond

Office.” And he had hired one of the September 2014 candidates at an annual

salary of $65,000 to perform pre-trial bond requests.

Drummond testified that Judge Henry, in May 2015, asked him to assist in

determining the salary range for the new DCA position. He explained that he

based his research on the job description that the judges had submitted in their May

12, 2015 application. And he noted that the commissioners court duties removed

from the new DCA position included the law library, personal bond office,

building facilities, and collections, which together had constituted a “significant

portion” of the duties of the DJA. In arriving at his salary recommendation for the

new DCA position, Drummond utilized various online resources and census data

from Galveston and Cameron counties, and he contacted three of the counties

14

listed in the judges’ salary survey, as well as others. He presented his findings to

the commissioners court, and he drafted portions of their June 9, 2015 order setting

the salary range for the new DCA position.

Drummond explained that he graduated from Vermont Law School in 2012

and does not hold a Texas law license, has prior experience working for the

Vermont Legislature, and took a statistics class and several economics classes in

college. Drummond admitted that, in determining salary ranges for Galveston

County positions, he does not apply any methodology that is generally accepted by

counties in setting such salary ranges.12

12

During cross-examination, the following discussion took place:

THE COURT: I’m sitting here listening to this gentleman’s expert

testimony with absolutely no Daubert foundation at

all. I have no idea if this man—I know he has a law

degree, but he’s never passed a Bar exam. He’s

never practiced in a court. He’s never worked in a

court. I haven’t heard anything yet that has told me

that this gentleman has any concept of how a court

works, how court administration works, or how the

laws of Texas impact on Judges requiring to do their

job. . . . If he has knowledge, if he studied, if he

knows the laws, and he has by training, experience,

or background any expertise to provide testimony on

this, let me hear it. If not, let’s move on.

....

And if he’s saying that he has done a study that

complies with any methodology that makes this a

valid study, other than picking out the information he

wanted in his presentation, I’d be glad to hear his

qualifications on being able to do that. I’ve heard he

had statistics. I heard he had economics, but I’m an

15

Bluemer testified that in early August 2014, Judge Henry “asked” her “to

find candidates for [Quiroga’s] position as it stood, Director of Justice

Administration.” After she publicly posted the position, “probably a hundred,

maybe 150” people applied for the job. Bluemer selected the “10 to 15” candidates

who “fit the role.” She then conducted telephone interviews, narrowed the field to

“four,” and set up interviews with Henry and Ryan Dennard, Galveston County

Commissioner, Precinct One. Ultimately, Henry and Dennard chose three “final”

candidates, none of whom had experience in court administration. One candidate

“had formerly been an attorney” and “had a very passionate story to tell about his

[previous] drug addiction.” Bluemer noted, however, that he “had a very strong

passion for the judicial system” and “knew some of our players.” She also noted

that “two members of the [district attorney’s] office” had applied for the position,

economics major. Okay? So let’s prove him up, or

let’s move on. . . .

[Defense Counsel]: Mr. Drummond, what experience do you have with

regard to reviewing salaries, in general, doing salary

analysis?

[Drummond]: I assisted the County—actually, took the lead on

hiring our Chief Information Officer, Chief Human

Resources Officer, our Chief Financial Officer, all of

which were country searches, nationwide searches.

[Defense Counsel]: In each of those job searches, in determining the

salaries, did you use [a] methodology that is

generally accepted by Counties in trying to

determine salary ranges for those individuals?

....

[Drummond]: No.

16

but were eliminated as “way underqualified.” And a former Galveston County

judge had applied, but did not “make the cut” for “the final three.” On cross-

examination, Bluemer admitted that she was not familiar with the court system and

had no previous experience working in a courthouse or with any court

administrators.

Judge Cox testified that up until July 2014, his and Quiroga’s offices were

located one floor apart at the Justice Center, he “saw her almost every day,” and

they “talk[ed] all the time.” And he testified at length about her many essential

duties to the judges in Galveston County. For instance, Quiroga “did the budget

for all of the Courts, except the Probate Court; and she did the budget for the

Department of Justice Administration.” And she was “instrumental” in

developing, and “responsible” for administering, the judiciary’s “Fair Defense

Plan,” which provides counsel to indigent parties. A significant portion of her

duties also involved the provision of interpreters. Noting that he was not warned

prior to the termination of her employment, Cox chronicled the events, as outlined

in his amended petition, surrounding Judge Henry’s lock-out of Quiroga from her

office, removal of her personal computer and telephone, “filing [of] criminal

trespass warnings or notices” against her, and attempts to conduct interviews for

her replacement.

17

Judge Cox explained that after he went to OCA for assistance with a

compromise, the judges submitted a proposal to the commissioners court. And the

district court admitted into evidence the May 12, 2015 application submitted by the

“Administrative Judges of the Galveston County District Courts, County Courts at

Law, and Probate Court” to the commissioners, requesting approval to hire a

“Director of Court Administration” with an annual salary range of $85,000 to

$120,000. The judges’ application includes a job description and a “Salary

Survey,” which provides the salary ranges, varying from a low of $45,894 to a high

of $149,488, for court administrators in Bexar, Collin, Dallas, Denton, Tarrant, and

Williamson counties. The survey also indicates the number of courts to which

each administrator reports. Judge Cox noted that the court administrators in

Lubbock and Montgomery counties have annual salaries of $110,000 and

$100,000, respectively.

Judge Cox further testified that at the May 12, 2015 workshop, Judge Henry

expressly stated that “he would never pay” the new DCA in the judges’ requested

salary range of $85,000 to $120,000. The judges, who had not had a court

administrator since the purported termination of Quiroga’s employment ten months

earlier, then began their attempt to reinstate her. Cox explained that although the

revised job description for the new DCA position does have fewer job duties with

18

fewer employees reporting to the director, the proposed salary range of $57,705 to

$63,695, based on his experience, is “ridiculously low.”

Commissioner Dennard testified that although “[t]he judges were the

primary customer of the Department of Justice Administration,” statutory

amendments in 2005 and 2011 require that “Personal Bond, Building Security,

Collections, and the Law Library” be supervised by the commissioners court.

After the hearing, the district court issued its temporary injunction order,

finding, in pertinent part, as follows:

[Judge Henry] intentionally interfered with the independence of

the Galveston County judiciary and the ability of the Galveston

County judiciary to perform its judicial functions. . . .

....

Galveston County created an administrative department to serve

the administrative needs of its courts and to assist county government

in court related projects. Fourteen years ago, the judges selected

Bonnie Quiroga as the second director of Judicial Administration, and

such selection was approved by the Commissioner’s Court. The

testimony was that Ms. Quiroga had been employed by Galveston

County for thirty years at the time [her employment] was terminated

by [Henry] on July 24, 2014, so [she] was well known by the other

employees and elected officials.

The director of th[e] hybrid judicial-governmental

administrative department, called Justice Administration, reported to

the County Judge for the county government related duties and to the

local Administrative Judge for the judicial administrative duties. The

principal duties of Justice Administration are judicial administration.

This department had a Director and other employees supervised by the

Director. Offices for Judicial Administration are located in proximity

to the Galveston County courts in the Galveston Justice Center. The

other employees’ duties are judicial in nature. The Director reported

19

daily to the local Administrative Judge. The Director also reported to

the County Judge for the government related projects.

On July 24, 2014, [Henry] terminated the employment of the

Director of Judicial Administration from both her governmental

related responsibilities as well as her duties to the Galveston County

judiciary. [Henry] did not consult with the judiciary, nor did he

advise the judiciary that he intended to terminate the Director of

Judicial Administration’s duties performed for the Galveston County

Courts. [Cox] disputes that grounds existed to terminate [Quiroga’s

employment].

....

. . . . [Henry] placed his HR employee Peri Bluemer in charge

of choosing the replacement [DCA]. In her testimony, Ms. Bluemer

demonstrated a lack of knowledge about courts, administrative duties

of the court, and the nature of trust and confidence necessary in any

person holding this sensitive court position.

. . . [Bluemer] used standards she designed to limit the

consideration to only three applicants, eliminating applicants familiar

with the Galveston County courts and attorneys in good standing with

the State Bar, while including a wholly unacceptable applicant who

could not meet the standards of integrity necessary in such a sensitive

position due to addiction to drugs and whose law license had been

suspended by the State Bar.

....

The Court finds this qualification and interview process was

designed to orchestrate the selection of the replacement administrator

for the courts without . . . the advice or consent of the judiciary. . . .

The Court finds that . . . [Henry] abandoned his plan to force a

hand-picked candidate as the judiciary’s chief administrative officer,

yet, used the ability to set the salary for the new position at a

sufficiently low salary to continue to control the hiring process.

....

[Henry’s] staff member Tyler Drummond was assigned to

determine the salary for the new judicial administrator. Mr.

Drummond graduated from a Vermont law school two years ago and

did not demonstrate knowledge about courts, administrative duties of

20

the courts, and court administrators. He had prior experience

working for the Vermont legislature.

. . . [Drummond] performed his salary search without including

the salaries from other area counties and without input from the

Galveston judiciary, or the judiciary in any of his comparative

counties.

....

. . . [And he] used standards he designed without sufficient

expertise to establish an appropriate salary range for such a position.

. . . [Drummond’s] salary survey process was arbitrary and

designed to orchestrate the salary of the replacement administrator

for the courts at the lowest possible level, improperly undermining the

independence of the judiciary.

....

[And] Henry’s attempts to force his will as to employment of

the judicial administrator included the attempt to intimidate the

Galveston judges by including filing complaints with the Judicial

Conduct Commission as part of the Agenda for June 9 and June 13

Commissioner’s Court meetings.

The Court finds that [Cox] has demonstrated irreparable injury

if a temporary injunction is not issued as shown by the conduct of

[Henry,] who attempted to stymie the effort of the judges to restore a

judicial administrator by holding an emergency Commissioner’s

Court meeting on June 13, 2015, to create a new judicial

administrator position at the salary level [Henry] knew was at a

salary level the judiciary considered arbitrarily low to attract a

suitable candidate.

(Emphasis added.)

The district court concluded, in pertinent part, as follows:

• [Cox] has the probable right to recover relief in his suit that

[Henry] may not eliminate and attempt to control the

replacement of the administrator for the courts in Galveston

County and, then, manipulate employment terms and applicants

21

to replace the administrator position to eliminate suitable

applicants;

• [Cox] and the courts of Galveston County are irreparably

injured by the acts committed by [Henry], and will be

irreparably injured by further acts, to interfere with the

administrative ability of the courts to perform their judicial

functions;

• the last peaceable status quo should be restored pending final

trial in the case; and,

• if not enjoined, [Henry] will continue to deny administrative

support for the Galveston County courts, further interfering

with the independence of the Galveston County judiciary and

the ability of the Galveston County judiciary to perform its

judicial functions.

(Emphasis added.)

Based on its findings and conclusions, the district court ordered Judge

Henry, and “his agents, servants, and representatives, and all those acting in

concert with him”:

[to] restore the employment of the Justice Administration Director

[Quiroga] as an employee of Galveston County, under the same terms,

judicial administrative organization, and salary scale of employment,

as employed on July 23, 2014, to perform all administrative duties

serving the courts of Galveston County as performed on July 23,

2014, which employment shall be supervised by the Galveston County

local Administrative Judge. . . .

. . . [And] perform all necessary actions to carry out the reinstatement

of [Quiroga] to her position as Galveston County Justice

Administrator, including, but not limited to:

a. issuing to [her] a key to her office in the Justice Center;

b. directing IT to provide a computer and access to Galveston

County Employee e-mail and other systems necessary for the

performance of her job duties;

22

c. providing [her] with a phone for her office;

d. directing Human Resources to allow [her] to complete all

paperwork for her to be reinstated, effective June 8, 2015, as a

full time employee; and

e. directing the Treasurer to reinstate [her], effective June 8, 2015,

and pay . . . [her] her same salary as was paid prior to July 24,

2014.

The district court further enjoined Henry, “his agents, servants, and

representatives, and all those acting in concert with him,” from:

1. Taking any action on the matters:

(a) relating to [the] application by county and district court

judges for authority to appoint administrative employees

for the courts other than in compliance with this

temporary injunction;

(b) relating to justice administration other than in compliance

with this temporary injunction;

(c) relating to Galveston County staff and agents regarding

[Quiroga] other than in compliance with this temporary

injunction;

(d) relating to Galveston County facilities used by Galveston

County courts, court staff, and administrative staff other

than in compliance with this temporary injunction; and

(e) relating to applications to appoint court administrative

employees other than in compliance with this temporary

injunction.

....

2. Barring entrance to the Galveston County Justice Center by

Justice Administration personnel, including [Quiroga].

3. Preventing or impeding in any way the provision of, and the use

of, county equipment and furnishings necessary to Justice

Administration personnel, including [Quiroga], to perform their

administrative duties.

23

4. Instructing any Galveston County employees to disregard

directives, instructions, or requests of Justice Administration,

including [Quiroga], to perform the duties of Justice

Administration.

5. Appointing or employing any person other than [Quiroga] to

perform the duties of [DJA] as directed by [Cox].

6. Reassigning or relocating any employee who was an employee

of Justice Administration on July 23, 2014, including but not

limited to [Quiroga], Monica Gracia, and Deputy Clint Purcell.

7. Taking any action to prevent or impede access by Justice

Administration personnel, including [Quiroga], Monica Gracia,

and Deputy Clint Purcell, to the offices occupied by Justice

Administration on July 23, 2014.

The district court also ordered that Henry “his agents, servants, and

representatives, and all those acting in concert with him,”

restore Justice Administration under the same terms, judicial

administrative organization, and salary scale of employment as

existed on July 23, 2014, so that Justice Administration may perform

all administrative duties serving the courts of Galveston County as

performed on July 23, 2014, which duties shall be supervised by the

Galveston County Administrative Judge.

(Emphasis added.) And it ordered that Henry “immediately provide written

notice” of the court’s order to each of the commissioners and all County

“Department Heads” and employees under the supervision of the commissioner’s

court. The district court further noted that its temporary injunction did not include

Quiroga “performing any duties relating to the law library, pretrial, or recovering

costs.” And it set the case for trial and set a bond.

24

Standard of Review

The sole issue in a temporary injunction proceeding is whether the applicant

may preserve the status quo of the litigation’s subject matter pending trial on the

merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The “status

quo” is defined as “the last, actual, peaceable, noncontested status which preceded

the pending controversy.” In re Newton, 146 S.W.3d 648, 651 (Tex. 2004).

To obtain a temporary injunction, an applicant is not required to establish

that he will prevail upon a final trial on the merits, but must plead and prove (1) a

cause of action against the defendant, (2) a probable right to the relief sought, and

(3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84

S.W.3d at 204; Occidental Chem. Corp. v. ETC NGL Transp., LLC, 425 S.W.3d

354, 363 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d). An irreparable

injury is shown if there is no adequate remedy at law, i.e., the applicant cannot be

adequately compensated in damages or damages cannot be measured by any

certain pecuniary standard. Butnaru, 84 S.W.3d at 204.

We review the district court’s order granting the temporary injunction for a

clear abuse of discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993);

Occidental Chem. Corp., 425 S.W.3d at 363. Accordingly, we will not reverse the

district court’s order unless it is “so arbitrary as to exceed the bounds of reasonable

discretion.” Butnaru, 84 S.W.3d at 211; Occidental Chem. Corp., 425 S.W.3d at

25

363. The scope of our review is limited to the validity of the temporary injunction

order; we do not review the merits of the underlying case. Walling, 863 S.W.2d at

58; INEOS Grp. Ltd. v. Chevron Phillips Chem. Co., 312 S.W.3d 843, 848 (Tex.

App.–Houston [1st Dist.] 2009, no pet.).

We review the evidence in the light most favorable to the district court’s

ruling, drawing all legitimate inferences from the evidence, and deferring to the

district court’s resolution of conflicting evidence. INEOS Grp. Ltd., 312 S.W.3d at

848. A court abuses its discretion if it misapplies the law to established facts. Id.

An abuse of discretion does not occur as long as there is some evidence that

reasonably supports the court’s decision. Butnaru, 84 S.W.3d at 211.

The Inherent Powers of the Texas Judiciary

At the outset, it must be noted that at the core of Judge Cox and the judges’

complaints against Judge Henry, and, thus, the resolution of most of the issues

presented by Henry in his appeal of the district court’s temporary injunction, is the

fundamental constitutional principle that the Texas Judiciary, as a separate, equal,

and independent branch of government, has certain well-established inherent

powers.

Texas courts “derive” their existence and “judicial power directly” from the

Texas Constitution. Mays v. Fifth Court of Appeals, 755 S.W.2d 78, 80 (Tex.

1988) (Spears, J., concurring) (citing TEX. CONST. art. V, § 1); see also Vondy v.

26

Comm’rs Court of Uvalde Cty., 620 S.W.2d 104, 109–10 (Tex. 1981);

Eichelberger v. Eichelberger, 582 S.W.2d 395, 398–99 (Tex. 1979). Indeed, the

“judicial power” of Texas is “vested” in our constitutionally established courts,

which constitute and operate as a separate and equal branch of government. TEX.

CONST. art. II, §1; id. art. V, § 1.

Moreover, the Texas Constitution, unlike the United States Constitution,

contains a specific, strongly-worded provision, entitled “The Powers of

Government,” which mandates a strict separation of powers among the state’s

Legislative, Executive, and Judicial Departments. See TEX. CONST. art. II, § 1.

And the drafters of the Texas Constitution thought the provision so important that

they placed it in article II, ahead of the separate articles establishing the

Legislative, Executive, and Judicial Departments of the state’s government. See id.

arts. III, IV, V. Only the Texas Bill of Rights, contained in article I of the

Constitution, precedes the Separation of Powers Provision in prominence of place.

See id. art. I, §§ 1–34. The provision expressly states:

The powers of the Government of the State of Texas shall be divided

into three distinct departments, each of which shall be confided to a

separate body of magistracy, to wit: Those which are Legislative to

one; those which are Executive to another[;] and those which are

Judicial to another; and no person, or collection of persons, being of

one of these departments, shall exercise any power properly attached

to either of the others, except in the instances herein expressly

permitted.

Id. art. II, § 1 (emphasis added).

27

The judicial power of the state is divided among the various constitutionally

established courts “by means of express grants of jurisdiction contained in the

constitution and statutes.” Eichelberger, 582 S.W.2d at 398. In addition to these

express grants of judicial power, courts have “inherent” and “implied” powers “not

expressly authorized or described by the constitution or statute.” Id. (emphasis

added). These powers are “woven into the fabric of the constitution by virtue of

their origin in the common law” and “the mandate of . . . the separation of powers

between three co-equal branches.” Id. (citing TEX. CONST. art. II, § 1). As

explained by the Texas Supreme Court:

The inherent judicial power of a court is not derived from legislative

grant or specific constitutional provision, but from the very fact that

the court has been created and charged by the constitution with

certain duties and responsibilities. The inherent powers of a court are

those which it may call upon to aid in the exercise of its jurisdiction,

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

independence and integrity. Inherent power of the courts has existed

since the days of the Inns of Court in common law English

jurisprudence. . . . It also springs from the doctrine of separation of

powers between the three governmental branches. . . . This power

exists to enable our courts to effectively perform their judicial

functions and to protect their dignity, independence and integrity.

Id. at 388–89 (emphasis added) (citations omitted).

In Vondy, the Texas Supreme Court further explained that Texas courts have

the inherent power to compel payment of sums of money if they are reasonable and

necessary in order to carry out the court’s mandated responsibilities. 620 S.W.2d

at 109. This inherent power is “necessary for the judiciary to carry out its

28

functions, independently of the other branches of government,” and “protect and

preserve the judicial powers from impairment or destruction.” Id. The court

noted that courts across the nation have employed their inherent powers to hire

staff and require that salaries be paid for secretaries, probation officers, and

assistants. Id. at 110 (citations omitted). It also noted that in 1857, the Supreme

Court of Pennsylvania required a county to compensate a constable for his services

because of the benefit derived by the county for such services in the preservation

of order and administration of justice. Id. (citing Lancaster Cty. v. Brinthall, 29

Pa. 38, 40 (1857)).

Accordingly, the Texas Supreme Court held that “the county commissioners

of Uvalde County must compensate the county’s constables” because “[t]he

judicial system of this state cannot function properly if those officials who are

responsible for carrying out certain duties in that process are not properly

compensated” and “[i]t is the duty of the commissioners court to provide process

servers as a necessary part of the proper administration of justice in this state, and

to compensate them adequately.” Id. (citations omitted). The court noted the fact

that the commissioners court “is also part of the judicial branch of this state.” Id.

(citing TEX. CONST. art V, § 1). But it concluded “this fact does not alter our

powers to protect and preserve the judiciary by compelling payment for process

servers.” Id. In fact, when making fiscal and budgetary decisions, a

29

commissioners court exercises its legislative function. See Comm’rs Court of Titus

Cty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). And, as emphasized by the court,

The legislative branch of this state has the duty to provide the

judiciary with the funds necessary for the judicial branch to function

adequately. If this were not so, a legislative body could destroy the

judiciary by refusing to adequately fund the courts. The judiciary

must have the authority to prevent any interference with or

impairment of the administration of justice in this state.

Vondy, 620 S.W.2d at 110 (emphasis added).

Again emphasizing that Texas courts derive their judicial power directly

from the constitution and it “expressly mandates a separation of governmental

powers,” the Texas Supreme Court, in Mays, expressly stated that “even in the

absence of a statutory provision, a court has the inherent power to compel the

expenditure of those public funds which are reasonably necessary for the court to

efficiently fulfill its constitutional function.” 755 S.W.2d at 80 (citing Vondy, 620

S.W.2d at 109–10; Eichelberger, 582 S.W.2d at 398–99). Thus, “[o]n this basis

alone, a district judge may set a reasonable salary” for court staff. Mays, 755

S.W.2d at 80.

Writing for the majority of the court in Mays,13 Justice Franklin Spears

further elaborated:

13

We note that although Justice Spears’ opinion in Mays is labeled a concurring

opinion, four other justices joined the opinion and, in it, the majority of the court

simply elaborated on its previous discussions of the inherent powers of Texas

courts. See 755 S.W.2d at 80.

30

Like the power to punish for contempt, a court’s inherent power to

compel funding flows from the law of self-preservation. No legislative

authority, state or local, can so tighten the purse strings of the

judiciary’s budget that it fails to provide the funds reasonably

necessary for the court’s efficient and effective operation. To adhere

to any contrary view would effectively concede to the legislature the

power to render inoperative the judicial branch of government. It

could force the judiciary into the role of a subordinate and supplicant

governmental service—in effect, a mere agency. The judiciary is not

an agency, but is a constitutionally established separate, equal and

independent branch of government.

Id. (citing LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986)) (emphasis added).

Thus, the “inherent power of the courts is necessary not only to preserve the

judicial branch of government, but also to preserve for the people their security and

freedom.” Id. Indeed,

The judicial power provides a check on the abuse of authority by other

governmental branches. If the courts are to provide that check, they

cannot be subservient to the other branches of government but must

ferociously shield their ability to judge independently and fairly. This

is the essence of our very existence; we owe the people of Texas no

less than our unflinching insistence on a true tripartite government. It

is the responsibility of this court to preserve this constitutional

framework.

The inherent power of the courts to compel funding thus arises out of

principles and doctrines that are so thoroughly embedded as to form

the very foundation of our governmental structure. The judiciary may

often be denominated as the “third” branch of government, but that

does not mean it is third in importance; it is in reality one of three

equal branches. As such, the judiciary is an integral part of our

government and cannot be impeded in its function by legislative

intransigence in funding.

Id. at 80–81(emphasis added).

31

Again, the court in Mays noted that courts across the nation have used their

inherent powers to compel funding for a wide variety of essentials, including

janitorial services, chairs and carpeting, tape recording equipment, telephone

services, and air conditioning equipment. Id. at 80–82 (citations omitted). And

“[n]umerous courts have held that the hiring of court personnel and the

designation of staff salaries are matters over which courts may properly exercise

their inherent powers.” Id. at 82 (emphasis added) (citations omitted).

With this in mind, the court noted that the Supreme Court of Indiana had

expressly recognized that the “power of the courts to employ necessary personnel

and fix their salaries” is “grounded on the most fundamental of constitutional

principles.” Id. (citing Noble Cty. Council v. State ex. Rel. Fifer, 125 N.E.2d 709,

714 (Ind. 1955)). And it quoted the Indiana court’s reasoning:

These [constitutional] mandates necessarily carry with them the right

to quarters appropriate to the office and personnel adequate to perform

the functions thereof. The right to appoint a necessary staff of

personnel necessarily carries with it the right to have such appointees

paid a salary commensurate with their responsibilities. The right

cannot be made amenable to and/or denied by a county council or the

legislature itself. Our courts are the bulwark, the final authority

which guarantees to every individual his right to breathe free, to

prosper and be secure within the framework of a constitutional

government. The arm which holds the scales of justice cannot be

shackled or made impotent by either restraint, circumvention or

denial by another branch of that government.

Id. (emphasis added) (quoting Noble Cty. Council, 125 N.E.2d at 714). The court

in Mays also noted that many courts have “expressly concluded that, as a matter of

32

constitutional law, the judiciary must directly control court personnel.” Id.

(citations omitted).

Moreover, the court further explained that “courts may even compel

payment of those expenses which are reasonably necessary for the court to exercise

its inherent powers. Thus, if it becomes necessary for a court to retain counsel in

order to litigate an exercise of inherent powers, then payment of attorney fees may

also be compelled.” Id. (citation omitted).

With these important constitutional principles in mind, we turn to the issues

presented in this appeal.14

14

Our dissenting colleague asserts that the district court, in its temporary injunction

order did not expressly “rely on the judiciary’s inherent authority.” And we note

that the district court did not make reference to the Separation of Powers Provision

of the Texas Constitution. However, the district court, in issuing its temporary

injunction, specifically found that Judge Henry had “intentionally interfered with

the independence of the Galveston County judiciary” and its “ability” to perform

its judicial functions, and he would “continue” to do so. As noted above, Texas

courts have the inherent power to “protect and preserve” their “judicial powers

from impairment or destruction,” and this power is “necessary for the judiciary to

carry out its functions, independently of the other branches of government.”

Vondy, 620 S.W.2d at 109. Although the district court did not expressly refer to

its inherent power in issuing the temporary injunction order, this power necessarily

formed the basis of the order, especially given the fact that Judge Cox invoked it

and the Separation of Powers Provision in his request for the temporary injunction.

We note that Judge Henry, in his briefing to this Court, does not present an issue

in which he challenges the inherent powers of the Texas Judiciary to protect and

preserve the proper administration of the judicial system, nor does he contend that

the district court, in entering the temporary injunction, acted outside of the scope

of its inherent power.

33

Mootness

In his first issue, Judge Henry argues that the district court’s temporary

injunction has become moot on appeal because the Texas Legislature recently

amended the Texas Government Code to, “[f]or the first time,” provide “specific

authority for the creation of a county-funded court administrative system for the

district courts collectively in counties like Galveston County” and the amendment

became effective on September 1, 2015. (Emphasis added.) See Act of May 27,

2015, 84th Leg., R.S., S.B. 1913, ch. 966, §1–2 (codified as an amendment to TEX.

GOV’T CODE ANN. § 75.401) (referred to hereafter as TEX. GOV’T CODE ANN.

§ 75.401 (Vernon Supp. 2015)). He further argues that because the “new

amendments to section 75.401” “now give authority to the judges in Galveston

County” “to appoint Ms. Quiroga to the new Court Administrator position,”

“where she would be supervised by those judges and serve at their pleasure,” and

“now clearly gives” the commissioners court “the authority to set the salary for that

position,” the temporary injunction “does not have any practical effect on an

existing controversy.” (Emphasis added.)

“[C]ourts have an obligation to take into account intervening events that may

render a lawsuit moot.” Heckman v. Williamson Cnty., 369 S.W.3d 137, 166–67

(Tex. 2012). Appellate courts lack jurisdiction to decide moot controversies and

render advisory opinions. See Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d

34

83, 86 (Tex. 1999). A justiciable controversy between the parties must exist at

every stage of the legal proceedings, including the appeal, or the case is moot.

Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). “If a controversy ceases to

exist—the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome—the case becomes moot.” Id. The same is true

if an appellate court’s judgment cannot have any practical legal effect upon a then

existing controversy. Zipp v. Wuemling, 218 S.W.3d 71, 73 (Tex. 2007). A case

may become moot by reason of new legislation or acts that supersede existing

legislation. In re Gruebel, 153 S.W.3d 686, 689 (Tex. App.—Tyler 2005, orig.

proceeding). However, a case is not moot if some issue is still in controversy. Id.

Section 75.401, as amended, provides:

(a) In a county that has more than one district court or statutory

county court, those courts may establish and maintain, on

approval of the commissioners court, a court administrator

system.

(b) The judges of the district courts or the statutory county courts

may by local rule designate local court divisions and the duties

of the court administrator for each division, if applicable. The

court administrator shall cooperate with regional, presiding, and

local administrative judges and state agencies having duties

relating to the operation of the courts to promote uniform and

efficient administration of justice.

(c) The court administrator is appointed by the judges of the

district courts or the statutory county courts served by the court

administrator. The court administrator serves at the pleasure

of those judges.

35

(d) A court administrator is entitled to reasonable compensation,

as determined by the judges served and in the salary range for

the position, as set by the commissioners court.

(e) The judges of the courts served by the court administrator, with

the approval of the commissioners court, shall appoint

appropriate staff and support personnel according to the needs

of the local jurisdiction.

(f) On order and directive of the judges, the commissioners court

shall fund the court administrator system from fines collected

by the courts served by the court administrator. If the fines

collected are insufficient to provide the total funding for the

program, the county shall provide the additional funds needed.

TEX. GOV’T CODE ANN. § 75.401 (emphasis added).

The legislature explained that it amended section 75.401 because “interested

parties” had “contend[ed] that there [was] a need to clarify the statutory authority

of judges to hire a county court administrator in a county served by multiple

district courts and statutory county courts.” House Comm. on Judiciary & Civ.

Jurisprudence, Bill Analysis, Tex. S.B. 1913, 84th Leg., R.S. (2015) (emphasis

added). The previous version of section 75.401 discussed the authority of courts in

counties with “more than one” “county criminal court or more than one county

court at law” “to establish a court administrator system.” Act of May 17, 1985,

69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1720, 2015 (amended 2009).

The amended version discusses the establishment and maintenance of a court

administrator system by courts in counties that have “more than one district court

or statutory county court.” TEX. GOV’T CODE ANN. § 75.401(a). The current

36

version of section 75.401, as did the previous version, recognizes that the court

administrator “is appointed by the judges” of the courts served by the administrator

and “serves at” their “pleasure.” Compare TEX. GOV’T CODE ANN. § 75.401(b),

(c), with Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws

1720, 2015 (amended 2009). Moreover, the current version of section 75.401, as

did the previous version, recognizes that a court administrator “is entitled to

reasonable compensation.” Compare TEX. GOV’T CODE ANN. § 75.401(d), with

Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1720,

2015 (amended 2009).

Judge Cox argues that the district court’s temporary injunction is not moot

because, regardless of the recent changes made to section 75.401, this case

“directly involves the constitutional prerogative of the trial judges, who have a

well-established right to select judicial personnel and to have them reasonably

compensated by the commissioners.” See Mays, 755 S.W.2d at 80–82; Vondy, 620

S.W.2d at 109–10. He asserts that these rights are “recognized” in section 75.401

and Judge Henry and the commissioners court, relying on the fact that the

legislature has recently amended the statute, are merely attempting “to rig” the

compensation of the court administrator “so as to” illegally “control [the] selection

process.” Cox further asserts that Henry illegally “fire[d] Ms. Quiroga,”

“arrogate[d] to himself and his staff the selection of a successor,” and

37

“compounded the harm by attempting to cut the judges out of the selection

process,” “flimflam[ing] the system by a stacked salary review.”

Judge Cox notes that at the time Judge Henry purportedly terminated

Quiroga’s employment in July 2014, her compensation was set and approved by

the commissioners court at $113,000. Henry then, based on Drummond’s

unfounded “research,” recommended, and the commissioners court approved, a

salary range of $57,705 to $63,695 for the “new” court administrator position.

And Cox asserts that the judges cannot hire a qualified court administrator at a

salary within that range, nor can they set any level of compensation within that

range that would be “reasonable.” See TEX. GOV’T CODE ANN. § 75.401(d).

We first note that Judge Henry’s argument that the district court’s temporary

injunction is moot is based entirely on the false premise that the “new amendments

to section 75.401,” “[f]or the first time,” gave the Galveston County Judiciary the

authority “to appoint Ms. Quiroga to the new position of Court Administrator.”

Henry, in making this assertion, ignores the fact, as found by the district court, that

the judges had “[f]ourteen years ago” “selected” Quiroga as the second DJA. And

he ignores the well-established constitutional principle that Texas judges have the

“inherent power to act to protect and preserve the proper administration of the

judicial system.” Vondy, 620 S.W.2d at 109. As noted above, this includes the

inherent power to hire staff and “compel the payment of sums of money if they are

38

reasonable and necessary in order to carry out the court’s responsibilities.” Id. at

109–10. The legislature, in amending section 75.401, did not, as Henry asserts,

“[f]or the first time” give the Galveston County Judiciary the authority to appoint

Quiroga to her position. It merely, in its own words, at the request of “interested

parties,” “clarified” the judges’ “statutory authority to do so.” House Comm. on

Judiciary & Civ. Jurisprudence, Bill Analysis, Tex. S.B. 1913, 84th Leg., R.S.

(2015) (emphasis added).

More important, the fact that the legislature amended section 75.401 does

not in any way “moot” the district court’s findings that

• [Judge Cox] has the probable right to recover relief in his suit

that [Judge Henry] may not eliminate and attempt to control

the replacement of the administrator for the courts in Galveston

County and, then, manipulate employment terms and applicants

to replace the administrator position to eliminate suitable

applicants;

• [Cox] and the courts of Galveston County are irreparably

injured by the acts committed by [Henry], and will be

irreparably injured by further acts, to interfere with the

administrative ability of the courts to perform their judicial

functions;

• the last peaceable status quo should be restored pending final

trial in the case; and,

• if not enjoined, [Henry] will continue to deny administrative

support for the Galveston County courts, further interfering

with the independence of the Galveston County judiciary and

the ability of the Galveston County judiciary to perform its

judicial functions.

(Emphasis added.)

39

Specifically, in regard to Quiroga’s position and salary as Galveston County

DJA, the district court found:

• [Judge Henry] intentionally interfered with the independence of

the Galveston County judiciary and the ability of the Galveston

County judiciary to perform its judicial functions. . . .

 Fourteen years ago, the judges selected Bonnie Quiroga as the

second director of Judicial Administration, and such selection

was approved by the Commissioner’s Court. . . .

 The director of th[e] hybrid judicial-governmental

administrative department, called Justice Administration,

reported to the County Judge for the county government related

duties and to the local Administrative Judge for the judicial

administrative duties. The principal duties of Justice

Administration are judicial administration. . . . The Director

reported daily to the local Administrative Judge. The Director

also reported to the County Judge for the government related

projects.

 On July 24, 2014, [Henry] terminated the employment of the

Director of Judicial Administration from both her governmental

related responsibilities as well as her duties to the Galveston

County judiciary. [Henry] did not consult with the judiciary,

nor did he advise the judiciary that he intended to terminate the

Director of Judicial Administration’s duties performed for the

Galveston County Courts. . . .

 [Henry’s] qualification and interview process was designed to

orchestrate the selection of the replacement administrator for

the courts without . . . the advice or consent of the judiciary. . . .

 [Henry] abandoned his plan to force a hand-picked candidate

as the judiciary’s chief administrative officer, yet, used the

ability to set the salary for the new position at a sufficiently low

salary to continue to control the hiring process.

 [Henry’s] staff member Tyler Drummond was assigned to

determine the salary for the new judicial administrator. . . .

 [Drummond’s] salary survey process was arbitrary and

designed to orchestrate the salary of the replacement

40

administrator for the courts at the lowest possible level,

improperly undermining the independence of the judiciary.

 [And Henry] attempted to stymie the effort of the judges to

restore a judicial administrator by holding an emergency

Commissioner’s Court meeting on June 13, 2015, to create a

new judicial administrator position at the salary level [Henry]

knew was at a salary level the judiciary considered arbitrarily

low to attract a suitable candidate.

(Emphasis added.)

The evidence presented at the injunction hearing supports the district court’s

findings, which Henry does not challenge. Commissioner Dennard admitted that

“[t]he judges were the primary customer of the Department of Justice

Administration.” Regardless, Henry, himself, testified that on July 24, 2014, he

terminated Quiroga’s employment solely on his own initiative as county judge.

Although he had discussed terminating Quiroga’s employment with one of the

county commissioners, he did not raise the matter at a commissioners court

meeting, nor did he confer with the judges before terminating her employment.

Henry also conceded that neither he nor the commissioners court had given

Quiroga any prior job-performance reviews, nor had there been any documented

dissatisfaction with her job performance. He simply opined that it was “in the

public’s best interest” to amend the 2015 fiscal-year budget and restructure and

reorganize certain County departments. Henry noted that after he had terminated

Quiroga’s employment, “it was important to have that role filled,” and he then

41

assigned, again without consulting Judge Cox and the judges, his own staff to

“spearhead[]” the effort and set a salary range for the new position. And although

the commissioners, in the June 9, 2015 order, set the salary range for the new DCA

position at $57,705 to $63,695, Drummond admitted that, in determining salary

ranges for County positions, he does not apply any methodology that is generally

accepted by counties in setting such salary ranges.

As noted above, Judge Cox testified at length about Quiroga’s many duties

to the Galveston County Judiciary. And the district court admitted into evidence

Quiroga’s 2005 “Job Description Certification,” the “Position Summary” of which

states that she “manages, coordinates, directs, and plans the operations and

activities of all courts” and lists her numerous “Essential Functions.” Cox

explained that he was not warned prior to the termination of Quiroga’s

employment, and he chronicled the subsequent events, including Judge Henry’s

lock-out of Quiroga from her office, removal of her personal computer and

telephone, “filing [of] criminal trespass warnings or notices” against her, and

attempts to conduct interviews for her replacement.

Cox further testified that, based on his experience, Drummond’s proposed

salary range is “not an adequate salary for this position.” And the judges, in their

May 12, 2015 application to the commissioners court to approve the hiring of a

DCA at an annual salary of $85,000 to $120,000, included a job description and a

42

“Salary Survey.” The Salary Survey includes the salary ranges, which vary from a

low of $45,894 to a high of $149,488, for court administrators in Bexar, Collin,

Dallas, Denton, Tarrant, and Williamson counties and indicates the number of

courts to which each administrator reports. Cox also testified that Lubbock and

Montgomery counties reported court administrator annual salaries of $110,000 and

$100,000, respectively.

Judge Cox further explained that despite this evidence, Judge Henry, at the

end of one of the May 2015 “workshops,” stated that “he would never pay” the

director in the judges’ requested salary range of $85,000 to $120,000. And Cox

noted that although the revised job description for the position of court

administrator eliminates duties in regard to the law library, building facilities, pre-

trial release, and collections and has fewer reporting employees, Henry’s proposed

salary range is, based on Cox’s experience, “ridiculously low.” Moreover, the

judges have not had a court administrator since Henry purportedly terminated

Quiroga’s employment on July 24, 2014.

Judge Henry did testify that he and the commissioners court reduced the

salary range for the “new” DCA because “all” of the commissioners court

“functions” had been removed from the duties of the position. And he asserted that

the “new” DCA position has “approximately 25 percent of the responsibility that

the old DJA position had,” based on the number of people reporting to the director.

43

However, he conceded that he, in proposing the new salary range, did not consider

the number of elected officials to whom the director reports, nor did he consider

the importance of one duty over another. Although Henry asserts that Judge Cox

has not attempted to hire a court administrator in the proposed salary range, this

assertion wrongly presumes that Henry had the legal authority to terminate

Quiroga’s employment, in regard to her duties to Cox and the judges, in the first

place. This issue is yet to be decided by the district court. Moreover, the evidence

reveals that Henry himself was unable to fill the position with a qualified

candidate. Bluemer testified that after she had publicly posted the position, she

selected the “10 to 15” candidates who “fit the role,” conducted telephone

interviews, narrowed the field to “four,” and set up interviews with Henry and

Dennard. Ultimately, Henry and Dennard chose three “final” candidates, none of

whom, according to Bluemer, had any experience in court administration.

We defer to the district court’s resolution of conflicting evidence. See

INEOS Grp. Ltd., 312 S.W.3d at 848. The district court was free to believe Judge

Cox, and credit evidence in his favor, and to disbelieve Judge Henry, and discredit

evidence in his favor. Based on the evidence, the district court could have

reasonably concluded, as it did, that Henry, by purporting to unilaterally terminate

Quiroga’s employment, had intentionally denied administrative support for Cox

and the judges and interfered with the independence of the Galveston County

44

Judiciary and its ability to perform its judicial functions. And, based on the

evidence, the district court could have reasonably concluded, as it did, that Henry

would continue to do so. Thus, the district court’s issuance of the temporary

injunction was in accord with the valid exercise of its inherent power to act to

protect and preserve the proper administration of justice.15 And the recent

amendments to section 75.401, which became effective on September 1, 2015, do

not vitiate the district court’s findings and conclusions.

Although section 75.401 recognizes that the commissioners court has the

discretion to set a salary range for Quiroga’s position, this power cannot be used

arbitrarily or unreasonably or in a manner that interferes with Judge Cox and the

judges’ inherent powers and abilities to perform their judicial functions effectively.

See Mays, 755 S.W.2d at 83; Vondy, 620 S.W.2d at 109–10; Eichelberger, 582

S.W.2d at 398–99. The ultimate resolution of the salary dispute is yet to be

decided by the district court and is outside the scope of our review, which is

limited to the validity of the temporary injunction.16 See INEOS Grp. Ltd., 312

S.W.3d at 848.

15

Of course, Judge Cox and the judges also have the same inherent power. See

Mays, 755 S.W.2d at 80–83; Vondy, 620 S.W.2d at 109.

16

Our dissenting colleague asserts that the district court “erred in setting a specific

salary; instead, it should have instructed the commissioners court to set a new—

and reasonable—salary for Quiroga’s new position.” However, the court has not

set a permanent salary for Quiroga, nor has it permanently reinstated her to the

45

We conclude that there remains a justiciable controversy regarding Judge

Henry’s purported termination of Quiroga’s employment and his attempts, as

found by the district court, to influence the judges’ decision to keep Quiroga as

their administrator and interfere with the independence and ability of the judges to

perform their duties by setting an “arbitrarily low” salary range for her position.

See Vondy, 620 S.W.2d at 109–10; Eichelberger, 582 S.W.2d at 399; Griffin v.

Birkman, 266 S.W.3d 189, 195 (Tex. App.—Austin 2008, pet. denied); Hooten v.

Enriquez, 863 S.W.2d 522, 528–29 (Tex. App.—El Paso 1993, no pet.).

Accordingly, we hold that the district court’s temporary injunction order is not

moot.

We overrule Judge Henry’s first issue.

Jurisdiction

In his second issue, Judge Henry argues that the district court lacked subject

matter jurisdiction to issue the temporary injunction because Judge Cox “lack[s]

standing to seek an injunction reinstating [Quiroga] to her old job at her old

salary”; “[l]egislative immunity bars this suit . . . as a matter of law”; and “the

other county commissioners are indispensable parties and their absence is

jurisdictional.”

DJA position. It merely entered the temporary injunction to preserve the status

quo pending trial on these ultimate issues.

46

Whether a district court has subject-matter jurisdiction is a question of law

that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 228 (Tex. 2004).

Standing

Judge Henry first argues that Judge Cox “lacked standing to seek an

injunction” because “[t]he injury alleged in this case was suffered only by Bonita

Quiroga—being terminated from her job” as DJA. He asserts that Cox “did not

demonstrate that he had standing ‘in his official capacity as Judge of the 56th

District Court of Galveston County’ to seek an injunction reinstating Ms. Quiroga

to her old job.”

In response, Judge Cox asserts that “Quiroga was not the only party

injured”; rather, “[a]nother distinct casualty was the constitutionally grounded

ability of judges to select competent personnel and to have them adequately

compensated.”

Standing is implicit in the concept of subject-matter jurisdiction, and

subject-matter jurisdiction is essential to the authority of a court to decide a case.

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).

Thus, standing is never presumed, cannot be waived, and may be raised for the first

time on appeal. Id. at 443–44. The test for standing requires that there be a real

controversy between the parties that will actually be determined by the judicial

47

declaration sought. Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d

659, 662 (Tex. 1996). Without a breach of a legal right belonging to the plaintiff,

no cause of action can accrue to his benefit. Nobles v. Marcus, 533 S.W.2d 923,

927 (Tex. 1976).

A plaintiff has standing when he is personally aggrieved, regardless of

whether he is acting with legal authority. Nootsie, Ltd., 925 S.W.2d at 661. He

has standing if: (1) he has sustained, or is immediately in danger of sustaining,

some direct injury as a result of the wrongful act of which he complains; (2) he has

a direct relationship between the alleged injury and claim sought to be adjudicated;

(3) he has an individual stake in the controversy; (4) the challenged action has

caused him some injury in fact; or (5) he is an appropriate party to assert the

public’s interest in the matter as well as his own interest. Lake Medina

Conservation Soc., Inc./Bexar-Medina Atascosa Counties WCID No. 1 v. Tex. Nat.

Res. Conservation Comm’n, 980 S.W.2d 511, 515–16 (Tex. App.—Austin 1998,

pet. denied); Billy B., Inc. v. Bd. of Trustees, 717 S.W.2d 156, 158 (Tex. App.—

Houston [1st Dist.] 1986, no writ).

A plaintiff has the burden of alleging facts that affirmatively demonstrate a

court’s jurisdiction to hear a cause. Tex. Ass’n of Bus., 852 S.W.2d at 446. And

we construe the allegations in the pleadings in favor of the pleader. Id. A court

deciding an issue of standing is not required to look solely to the pleadings, but

48

may consider evidence, and must do so when necessary, to resolve the

jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555

(Tex. 2000); In re Shifflet, 462 S.W.3d 528, 537 (Tex. App.—Houston [1st Dist.]

2015, orig. proceeding). A challenge to standing cannot be used to require the

party to prove his entire case but should be limited to facts that might be

characterized as primarily jurisdictional. See Blue, 34 S.W.3d at 554; In re Shifflet,

462 S.W.3d at 537.

Judge Henry’s argument that Judge Cox lacks standing to seek injunctive

relief from the district court is based on the false premise that “[t]he injury alleged

in this case was suffered only by Bonita Quiroga—being terminated from her job”

as DJA. (Emphasis added.) In fact, Cox alleges that he suffers “imminent,

“ongoing,” and “irreparable” harm because Henry has interfered with the ability of

Cox’s court to properly perform its judicial functions. And Cox seeks

“enforcement of constitutional rights and powers under the inherent power of the

courts to demand and receive adequate funding, personnel and facilities.”

As noted above, the district court expressly found that Judge Henry

“intentionally interfered with the independence of the Galveston County

[J]udiciary” and its ability to “perform its judicial functions.” It further found that

Henry “will continue to deny administrative support for the Galveston County

49

courts, further interfering with the independence of the Galveston County

[J]udiciary” and its ability to “perform its judicial functions.”

In support of that finding, Judge Cox testified that Judge Henry, without

notice to Cox and the judges, had dismantled the Department of Justice

Administration, unilaterally terminated the employment of Quiroga, and begun

reassigning court staff. And since September 24, 2014, Cox and his colleagues

have been without a DJA, and, thus, without an executive to perform numerous

“essential functions,” including assisting with and managing caseloads and

implementing efficient docket control; training court staff; arranging for personal

bonds (pretrial); arranging for interpreters; determining the eligibility for and

appointing indigent defense counsel; and providing for the comfort, convenience,

and security of jurors. Cox further testified that the new salary range proposed by

Drummond and Henry is so unreasonably low that the judges cannot fill it with a

qualified candidate.

Accordingly, we hold that Judge Cox has sufficiently alleged facts and

presented evidence affirmatively demonstrating his standing to bring the instant

suit against Judge Henry.17 See Tex. Ass’n of Bus., 852 S.W.2d at 443–44; see

17

We further note, as discussed more fully above, that the district court itself

possesses 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.” Eichelberger v. Eichelberger, 582 S.W.2d 395, 398

(Tex. 1979). In Vondy, the Texas Supreme Court further explained that Texas

50

generally Cty. Comm’rs Court of Dall. Cty. v. Williams, 638 S.W.2d 218, 221

(Tex. App.—Eastland 1982, writ ref’d n.r.e.) (practicing attorney, “due to the

special interest attorneys have in their profession,” had standing to enjoin

commissioners court from enforcing order allocating courtroom and library space).

Legislative Immunity

Judge Henry next argues that “legislative immunity bars Judge Cox’s suit

against” him “as a matter of law” because Cox’s claims involve Henry’s

“performance,” as a member of the commissioners court, of “legislative functions

and duties” in “passing and effectuating [commissioners court] orders” terminating

Quiroga’s employment as DJA, creating the “new administrator position,” and

setting the salary range for the new position.”

courts have the inherent power to compel payment of sums of money if they are

reasonable and necessary in order to carry out the court’s mandated

responsibilities. 620 S.W.2d at 109. This inherent power is “necessary for the

judiciary to carry out its functions, independently of the other branches of

government,” and “protect and preserve the judicial powers from impairment or

destruction.” Id. “On this basis alone,” the district court has jurisdiction to decide

the instant case and provide injunctive relief, including the reinstatement of

Quiroga’s employment and the setting of a “reasonable salary” for her, pending

the outcome of the trial on the merits. See Mays, 755 S.W.2d at 80.

Moreover, although Judge Cox did not rely upon his own inherent powers as the

judge of the 56th District Court to order Judge Henry to show cause why he

should not be held in contempt of Cox’s September 24, 2014 and June 8, 2015

orders, Cox did invoke, as discussed below, the district court’s jurisdiction and

general supervisory control over the commissioners court by filing the instant

lawsuit. See TEX. CONST. art. V, § 8; TEX. GOV’T CODE ANN. § 24.020 (Vernon

2004).

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Legislative immunity protects individuals from “personal liability” for

actions performed in their legislative capacity. In re Perry, 60 S.W.3d 857, 859

(Tex. 2001). “‘When officials are threatened with personal liability for acts taken

pursuant to their official duties, they may well be induced to act with an excess of

caution or otherwise to skew their decisions in ways that result in less than full

fidelity to the objective and independent criteria that ought to guide their

conduct.’” Id. (quoting Forrester v. White, 484 U.S. 219, 223, 108 S. Ct. 538, 542

(1988)); see also Hays Cty. v. Hays Cty. Water Planning P’ship, 106 S.W.3d 349,

359 (Tex. App.—Austin 2003, no pet.).

Here, Judge Cox does not sue Judge Henry in his personal capacity; rather,

Cox sues Henry in his official capacity as county judge. Moreover, although

Henry filed, in the district court, a plea to the jurisdiction, he did not raise an

immunity defense, but instead advanced other grounds. Immunity from liability

does not affect a court’s jurisdiction to hear a case. See Tex. Dep’t of Transp. v.

Jones, 8 S.W.3d 636, 638 (Tex. 1999). Like other affirmative defenses to liability,

it must be pleaded or it is waived. Id.; see TEX. R. CIV. P. 94.

Accordingly, we hold that Judge Cox’s suit is not barred by legislative

immunity.

52

Indispensable Parties

Judge Henry next argues that the district court lacked jurisdiction to issue a

temporary injunction against him because Judge Cox did not join the county

commissioners, or the commissioners court as a whole, as parties to the suit.

Henry asserts that the commissioners are “indispensable parties and their absence

is a fatal jurisdictional defect.”

Texas Rule of Civil Procedure 39 provides, in pertinent part, as follows:

(a) Persons to be Joined if Feasible. A person who is subject to

service of process shall be joined as a party in the action if (1) in his

absence complete relief cannot be accorded among those already

parties, or (2) he claims an interest relating to the subject of the action

and is so situated that the disposition of the action in his absence may

(i) as a practical matter impair or impede his ability to protect that

interest or (ii) leave any of the persons already parties subject to a

substantial risk of incurring double, multiple, or otherwise

inconsistent obligations by reason of his claimed interest. . . .

(b) Determination by Court Whenever Joinder Not Feasible. If a

person as described in subdivision (a)(1)-(2) hereof cannot be made a

party, the court shall determine whether in equity and good

conscience the action should proceed among the parties before it, or

should be dismissed, the absent person being thus regarded as

indispensable. The factors to be considered by the court include: first,

to what extent a judgment rendered in the person’s absence might be

prejudicial to him or those already parties; second, the extent to

which, by protective provisions in the judgment, by the shaping of

relief, or other measures, the prejudice can be lessened or avoided;

third, whether a judgment rendered in the person’s absence will be

adequate; fourth, whether the plaintiff will have an adequate remedy if

the action is dismissed for non-joinder.

53

TEX. R. CIV. P. 39(a)–(b). “Although [rule 39] provides for joinder in mandatory

terms, ‘there is no arbitrary standard or precise formula for determining whether a

particular person falls within its provision.’” Longoria v. Exxon Mobil Corp., 255

S.W.3d 174, 180 (Tex. App.—San Antonio 2008, pet. denied) ( quoting Cooper v.

Tex. Gulf Indus., Inc., 513 S.W.3d 200, 204 (Tex. 1974)); see also Kodiak Res.,

Inc. v. Smith, 361 S.W.3d 246, 251 (Tex. App.—Beaumont 2012, no pet.). If a

district court determines that an absent person falls within the provisions of the

rule, it has a duty to effect that person’s joinder. Longoria, 255 S.W.3d at 184; see

TEX. R. CIV. P. 39(a). If a person required to be joined under subsection (a) cannot

be joined, the district court must decide “whether in equity and in good conscience

the action should proceed among the parties before it, or should be dismissed” by

considering the factors listed in subsection (b). Id.; see TEX. R. CIV. P. 39(b); State

Office of Risk Mgmt. v. Herrera, 288 S.W.3d 543, 549 (Tex. App.—Amarillo

2009, no pet.).

“At one time, it was at least theoretically possible that the joinder of a person

could be so essential to a case that proceeding in the person’s absence would

constitute fundamental error, which could be raised for the first time on appeal.”

Onwudiegwu v. Dominguez, No. 14-14-00249-CV, 2015 WL 4366213, at *4 (Tex.

App.—Houston [14th Dist.] July 16, 2015, no pet.) (mem. op.) (citing Vondy, 620

S.W.2d at 106). However, the Texas Supreme Court has held that since rule 39

54

was amended, a party complaining of a nonjoined person’s absence waives that

complaint by failing to raise it in the district court, explaining that

[h]enceforth, it will be rare indeed when an appellate court properly

determines that the trial court lacked jurisdiction to adjudicate a

dispute when the nonjoining person’s absence is raised for the first

time on appeal by one of the parties in the trial court, at least insofar

as the judgment affects parties who participated in the trial, directly or

indirectly, or who purposely bypassed the proceedings. The doctrine

of fundamental error should no longer protect persons from the

binding force of judgments when they have had an opportunity to

raise the absence of the nonjoined person and waived it.

Brooks v. Northglen Ass’n, 141 S.W.3d 158, 162–63 (Tex. 2004) (issue of suit

dismissal because zoning board not joined as defendant constituted “prudential

rather than jurisdictional question”); see also Trust Fund for Haynes v. Walden on

Lake Conroe Cmty. Imp. Ass’n, Inc., No. 09-04-374 CV, 2006 WL 137434, at *3

(Tex. App.—Beaumont Jan. 19, 2006, no pet.) (mem. op.) (issue of whether party

indispensable waived by failure to raise it in trial court); Wilchester W. Concerned

Homeowners LDEF, Inc. v. Wilchester W. Fund, Inc., 177 S.W.3d 552, 558–60

(Tex. App.—Houston [1st Dist.] 2005, pet. denied) (non-joinder not jurisdictional

and waived because not raised in trial court).

Courts have held that there are “rare cases in which failure to name an

indispensable party will deprive a court of jurisdiction,” i.e., “where a party

responsible for enforcing a statute is not named in an action to declare that statute

unconstitutional.” Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Ass’n, Inc.,

55

37 S.W.3d 538, 540–41 (Tex. App.—El Paso 2001, pet. denied) (trial court lacked

jurisdiction because party enforcing blue law not named in action to declare statute

unconstitutional); see also Herrera, 288 S.W.3d at 549 (affirming dismissal, where

plaintiff failed to join one of two insurance carriers allegedly liable for payment of

death claim and issue raised in petition could not be joined); Gilmer Indep. Sch.

Dist. v. Dorfman, 156 S.W.3d 586, 588–89 (Tex. App.—Tyler 2003, no pet.)

(holding commissioner of education indispensable and dismissing property

owner’s suit to declare unconstitutional two chapters of Education Code).

Again, we note that Judge Henry did not raise his joinder issue in his plea to

the jurisdiction. Judge Cox’s pleadings establish that he seeks to temporarily

enjoin only “the acts of Mark A. Henry” and those whom he directs or controls, or

those “acting in concert” with him. “[C]ourts have held that a party with rights to

be preserved pending final trial need not join all necessary parties before obtaining

interim orders, such as a temporary injunction.” Hyde v. Ray, No. 2-03-339-CV,

2004 WL 1277869, at *2 (Tex. App.—Fort Worth June 10, 2004, no pet.) (mem.

op.); see also Speedman Oil Co. v. Duval Cty. Ranch Co., 504 S.W.2d 923, 926

(Tex. Civ. App.—San Antonio 1973, writ ref’d n.r.e.) (“Persons against whom no

complaint of wrongdoing is lodged and against whom no injunctive relief is sought

are not indispensable parties (to a proceeding for temporary injunction). . . . [I]t

may well be that other parties will have to be brought into the suit. . . . This,

56

however is not fatal to the temporary equitable relief granted.” (internal citations

omitted)). “Before a case is called for trial, additional parties necessary or proper

parties to the suit, may be brought in, either by the plaintiff or the defendant, upon

such terms as the court may prescribe.” TEX. R. CIV. P. 37. “Thus, on appeal of a

preliminary matter, such as the issuance of [the] temporary injunction, the question

of necessary and indispensable parties [to the suit] is not reached.” Hyde, 2004

WL 1277869, at *2–3. Accordingly, we hold that neither the Galveston County

commissioners, nor the commissioners court as a whole, are indispensable parties

to the district court’s temporary injunction.

We overrule Judge Henry’s second issue.

Supervisory Jurisdiction

In his third issue, Judge Henry argues that the temporary injunction is “void”

because the district court “exceeded its supervisory jurisdiction” over the

commissioners court. See TEX. CONST. art. V, § 8. He further argues that the

“district court’s exercise of its supervisory jurisdiction is invalid” because (1) the

commissioners court “did not act beyond its jurisdiction or abuse its discretion by

failing to perform a clear statutory duty when it (i) terminated [Quiroga’s]

employment, (ii) created the new administrator position, and (iii) set the salary for

the new position” and (2) the district court “had no authority to tell [him] who to

appoint or what salary to pay.” (Emphasis added.) Henry asserts that although a

57

district court “may order a commissioners court to set a reasonable salary for a

county employee,” it “cannot itself determine what that salary is or tell the

commissioners court what salary to adopt.”

The Texas Constitution provides that a county commissioners court “shall

exercise such powers and jurisdiction over all county business, as is conferred by

this Constitution and the laws of the State, or as may be hereafter prescribed.”

TEX. CONST. art. V, § 18(b). The powers and duties of a commissioners court

include legislative, executive, administrative, and judicial functions. Id. In

exercising its powers and jurisdiction over county business, a commissioners court

has implied authority to exercise broad discretion to accomplish the purposes

intended. Griffin, 266 S.W.3d at 194. Along with its constitutionally derived

jurisdiction over “county business,” a commissioners court has specific statutory

authority to oversee the fiscal operation of the county by approving and

authorizing a budget. Id. (citing TEX. LOC. GOV’T CODE ANN. §§ 111.001–.095

(Vernon 2008)).

When making fiscal and budgetary decisions, a commissioners court

exercises its legislative function. See Agan, 940 S.W.2d at 81; see also Vondy, 620

S.W.2d at 110; Hooten, 863 S.W.2d at 528. This legislative function, “when

properly performed, is protected from the scrutiny of the judicial branch by the

constitutionally-mandated separation of powers doctrine.” Griffin, 266 S.W.3d at

58

195 (emphasis added); see TEX. CONST. art. II, § 1 (“[N]o person, or collection of

persons, being of one of these departments, shall exercise any power properly

attached to either of the others, except in the instances herein expressly permitted.”

(emphasis added)).

We note that the district court, in its order, did not expressly state the

grounds upon which it relied in entering the temporary injunction against Judge

Henry. Again, however, Judge Cox alleges, and the district court expressly found,

that Henry had “intentionally interfered with the independence of the Galveston

County [J]udiciary and [its] ability to perform its judicial functions,” and, if “not

enjoined,” he would “continue to deny administrative support for the Galveston

County courts, further interfering” with their independence and ability to function.

Thus, in addressing Henry’s first issue, in which he contends that the temporary

injunction became moot on appeal, we noted that the district court’s issuance of the

injunction was in accord with the valid exercise of its inherent power to act to

protect and preserve the proper administration of justice. On this ground alone, the

district court has jurisdiction to address Cox’s complaints against Henry. See In re

El Paso Cty. Comm’r’s Court, 281 S.W.3d at 27–28. And on this ground alone,

the district court had the legal authority to issue the temporary injunction.

As noted above, the Texas Supreme Court has repeatedly explained that

Texas courts have certain inherent powers, including the inherent power to compel

59

payment of sums of money from the other branches of government if they are

reasonable and necessary in order to carry out the court’s mandated

responsibilities. Mays, 755 S.W.2d at 80; Vondy, 620 S.W.2d at 109. Again, as

emphasized by the supreme court in Mays:

Like the power to punish for contempt, a court’s inherent power to

compel funding flows from the law of self-preservation. No legislative

authority, state or local, can so tighten the purse strings of the

judiciary’s budget that it fails to provide the funds reasonably

necessary for the court’s efficient and effective operation. To adhere

to any contrary view would effectively concede to the legislature the

power to render inoperative the judicial branch of government. It

could force the judiciary into the role of a subordinate and supplicant

governmental service—in effect, a mere agency. The judiciary is not

an agency, but is a constitutionally established separate, equal and

independent branch of government.

755 S.W.2d at 80 (emphasis added) (citation omitted).

In Vondy, the Texas Supreme Court specifically held that where the law

requires that compensation be provided, commissioners courts must set

“reasonable” salaries. 620 S.W.2d at 108–09. There, the applicable constitutional

provision required that “all justices of the peace, constables, deputy constables and

precinct law enforcement officers” be compensated on a salary basis. Id. at 108

(quoting TEX. CONST. art. XVI, § 61). The commissioners voted not to set a salary

for a newly elected constable, asserting that by setting “no salary,” it had set “a

salary.” Id. at 105, 108. The commissioners argued that because the constitutional

provision at issue did not mandate that they set a “reasonable” salary, and no

60

statute mandated a minimum salary, it had the discretion to set no salary at all. Id.

at 108. The supreme court held that the commissioners were required to

compensate the county’s constables. Id. at 110. Noting that “[t]he judicial system

of this state cannot function properly if those officials who are responsible for

carrying out certain duties in that process are not properly compensated.” Id. The

court explained:

The legislative branch of this state has the duty to provide the

judiciary with the funds necessary for the judicial branch to function

adequately. If this were not so, a legislative body could destroy the

judiciary by refusing to adequately fund the courts. The judiciary

must have the authority to prevent any interference with or

impairment of the administration of justice in this state.

Id. It further explained that “[e]ven in matters involving some degree of discretion,

the commissioners court may not act arbitrarily.” Id. at 109; see also Neeley v. W.

Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 804 (Tex. 2005) (Vondy

demonstrates that “governmental discretion is circumscribed by the Constitution”).

In addition to the general inherent powers that a court may exercise sua

sponte, Texas district courts specifically have “appellate jurisdiction and general

supervisory control over the County Commissioners Court, with such exceptions

and under such regulations as may be prescribed by law.” TEX. CONST. art. V, § 8;

TEX. GOV’T CODE ANN. § 24.020 (Vernon 2004). If a commissioners court “acts

beyond its authority in attempting to perform its legislative function, the

supervisory jurisdiction of the district court comes into play.” Griffin, 266 S.W.3d

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at 195; Hooten, 863 S.W.2d at 528. And a district court may reverse a

commissioners court order if the latter has acted “arbitrarily, capriciously,

collusively, fraudulently, or otherwise in abuse of its discretion.” Griffin, 266

S.W.3d at 195; Hooten, 863 S.W.2d at 528. Thus, “a district court may enjoin a

commissioners court from enacting a budget that fails to provide essential

funding.” Randall Cty. Comm’rs Court v. Sherrod, 854 S.W.2d 914, 921 (Tex.

App.—Amarillo 1993, no pet.) (Poff, J., concurring) (“[I]t could be said that a

budget that fails to provide such essential funding is not a reasonable budget.”); see

also Vondy, 620 S.W.2d at 109–10 (where law requires compensation be provided,

commissioners courts must set “reasonable” salaries). However, a district court, in

reviewing a commissioners court’s order under article V, section 8 of the Texas

Constitution, may not substitute its judgment and discretion for the judgment and

discretion of the commissioners court. Ector Cty. v. Stringer, 843 S.W.2d 477, 479

(Tex. 1992). If a commissioners court acts illegally, unreasonably, or arbitrarily, a

“court of competent jurisdiction may so adjudge, but there the power of the court

ends.” Id.

Here, the district court’s issuance of the injunction was not only in accord

with the valid exercise of its inherent authority to protect and preserve the proper

administration of the legal system, but it was also in accord with its supervisory

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jurisdiction under article V, section 8 of the Texas Constitution. Again, the district

court ruled that

• [Judge Cox] has the probable right to recover relief in his suit

that [Judge Henry] may not eliminate and attempt to control

the replacement of the administrator for the courts in Galveston

County and, then, manipulate employment terms and applicants

to replace the administrator position to eliminate suitable

applicants;

• [Cox] and the courts of Galveston County are irreparably

injured by the acts committed by [Henry], and will be

irreparably injured by further acts, to interfere with the

administrative ability of the courts to perform their judicial

functions;

• the last peaceable status quo should be restored pending final

trial in the case; and,

• if not enjoined, [Henry] will continue to deny administrative

support for the Galveston County courts, further interfering

with the independence of the Galveston County judiciary and

the ability of the Galveston County judiciary to perform its

judicial functions.

(Emphasis added.)

And, again, in regard to Quiroga’s position as Galveston County DJA, the

district court specifically found that Judge Henry had “intentionally interfered with

the independence of the Galveston County [J]udiciary” and its ability “to perform

its judicial functions.” It further found that the judges, “[f]ourteen years ago,” had

“selected” Quiroga as “the second director of Judicial Administration,” and the

commissioners court had approved their selection. Although the “principal duties

of Justice Administration are judicial administration,” Henry unilaterally

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terminated Quiroga’s employment without regard to her duties to the Galveston

County Judiciary and without consulting with Judge Cox and the judges or

advising them that he intended to terminate her employment. Henry then placed

Bluemer in charge of choosing Quiroga’s replacement, even though, as found by

the district court, she “demonstrated a lack of knowledge about courts,

administrative duties of the court, and the nature of trust and confidence necessary

in any person holding this sensitive court position.” And she “used standards she

designed to limit the consideration to only three applicants, eliminating applicants

familiar with the Galveston County courts and attorneys in good standing with the

State Bar.” Henry also assigned Drummond “to determine the salary for the new”

DJA. And, as found by the district court, Drummond utilized a salary survey

process that was “arbitrary and designed to orchestrate the salary of the

replacement administrator for the courts at the lowest possible level, improperly

undermining the independence of the judiciary.”

The district court further found that Judge Henry’s “qualification and

interview process was designed to orchestrate the selection of the replacement

administrator for the courts without . . . the advice or consent of the judiciary.”

Although he “abandoned his plan to force a hand-picked candidate as the

judiciary’s chief administrative officer,” Henry “used the ability to set the salary

for the new position at a sufficiently low salary to continue to control the hiring

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process.” And he “attempted to stymie the effort of the judges to restore a judicial

administrator by holding an emergency Commissioner’s Court meeting on June 13,

2015, to create a new judicial administrator position at the salary level [Henry]

knew . . . the judiciary considered arbitrarily low to attract a suitable candidate.”

The district court’s general and specific findings support the ultimate

conclusion that Judge Henry, in first purporting to terminate Quiroga’s

employment, and then working to reduce her salary to “a sufficiently low” level

“to continue to control the hiring process,” acted arbitrarily, capriciously, and

beyond his authority. See Griffin, 266 S.W.3d at 195; Hooten, 863 S.W.2d at 528.

And, as we noted in addressing Henry’s first issue, the evidence presented at the

temporary injunction hearing supports the district court’s findings, which Henry

does not challenge in his appeal. Deferring to the district court’s resolution of

conflicting evidence, we conclude that the evidence supports the district court’s

issuance of the temporary injunction. See INEOS Grp. Ltd., 312 S.W.3d at 848;

Butnaru, 84 S.W.3d at 211 (abuse of discretion does not occur where some

evidence reasonably supports district court’s decision).

We note that the district court has not entered a ruling on a permanent

injunction, but only on the temporary injunction. And the scope of our review is

limited to the validity of the temporary injunction. See INEOS Grp. Ltd., 312

S.W.3d at 848. We further note that the district court, in its temporary injunction,

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did not purport to resolve the ultimate issues in this case. Rather, it simply ordered

that the status quo, that is, the “last, actual, peaceable noncontested status that

preceded the controversy,” be maintained pending trial. See In re Newton, 146

S.W.3d at 651.

Accordingly, to the extent that the district court relied upon its supervisory

jurisdiction under article V, section 8, of the Texas Constitution in issuing its

temporary injunction, we hold that it did not exceed that authority.

We overrule Judge Henry’s third issue.

Prior Orders

In a portion of his fourth issue, Judge Henry argues that the temporary

injunction is “void” because the underlying temporary restraining order and Judge

Cox’s own prior orders are void.

“‘A temporary restraining order is one entered as part of a motion for a

temporary injunction, by which a party is restrained pending the hearing of the

motion. A temporary injunction is one which operates until dissolved by an

interlocutory order or until the final hearing.’” Del Valle Indep. Sch. Dist. v.

Lopez, 845 S.W.2d 808, 809 (Tex. 1992) (quoting Brines v. McIlhaney, 596

S.W.2d 519, 523 (Tex. 1980)). Thus, a temporary restraining order restrains a

party from acting only during the pendency of a motion for temporary injunction,

i.e., until a full evidentiary hearing on the motion occurs. Id.; see TEX. R. CIV. P.

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680. The expiration of a temporary restraining order renders a challenge to it

moot. See Hermann Hosp. v. Tran, 730 S.W.2d 56, 57 (Tex. App.—Houston [14th

Dist.] 1987, no writ). We do not review temporary orders that are moot because

such a review would constitute an impermissible advisory opinion. See Nat’l

Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999).

Here, as Judge Henry himself points out in his brief, the subject of Judge

Cox’s prior orders and the temporary restraining order are subsumed in the

temporary injunction. Thus, even were we to conclude that Cox’s prior orders and

the temporary restraining order were void, this would not void the temporary

injunction because the district court’s issuance of the temporary injunction was

based on the evidence adduced at the temporary injunction hearing.

In support of his argument, Judge Henry relies on Ex parte Lesher, 651

S.W.2d 734, 735 (Tex. 1983) (granting habeas relief after trial court held party in

contempt for violating temporary restraining order, where trial court waived filing

of bond), and Lodispoto v. Ruvolo, No. 05-12-01580-CV, 2013 WL 3155000, at *1

(Tex. App.—Dallas June 19, 2013, no pet.) (mem. op.) (holding trial court could

not enforce void temporary injunction, where trial court did not set bond or trial

date). Here, however, the district court did not issue the temporary injunction to

enforce the temporary restraining order or Judge Cox’s prior orders; rather, the

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district court issued its temporary injunction after conducting its own evidentiary

hearing.

Accordingly, we hold that Judge Henry’s challenges to the temporary

restraining order and Judge Cox’s prior orders are moot. See Tran, 730 S.W.2d at

57.

Procedural Complaints

In the remaining portion of his fourth issue, Judge Henry argues that the

temporary injunction is void because it does not set forth the “irreparable harm that

Judge Cox will suffer absent its issuance” and the district clerk did not approve the

bond set by the district court. See TEX. R. CIV. P. 683, 684.

The procedural requirements of rules 683 and 684 are mandatory. Qwest

Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000). An order

granting a temporary injunction that does not meet these requirements is “subject

to being declared void and dissolved.” Id.

Rule 683 provides, in pertinent part, as follows:

Every order granting an injunction . . . shall set forth the reasons for

its issuance; shall be specific in terms; shall describe in reasonable

detail and not by reference to the complaint or other document, the act

or acts sought to be restrained; and is binding only upon the parties to

the action, their officers, agents, servants, employees, and attorneys,

and upon those persons in active concert or participation with them

who receive actual notice of the order . . . .

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TEX. R. CIV. P. 683. The purpose of the rule is to “‘adequately inform a party of

what he is enjoined from doing and the reason why he is so enjoined.’” In re

Chaumette, 456 S.W.3d 299, 305 (Tex. App.—Houston [1st Dist.] 2015, orig.

proceeding) (emphasis omitted) (quoting El Tacaso, Inc. v. Jireh Star, Inc., 356

S.W.3d 740, 744 (Tex. App.—Dallas 2011, no pet.). A trial court must, in its order

granting injunctive relief, set forth specific reasons why the court deems it proper

to issue the writ to prevent injury to the applicant in the interim; that is, “the

reasons why the court believes the applicant’s probable right will be endangered if

the writ does not issue.” Id. Mere conclusory statements or recitals of harm are

insufficient. Id. at 305–06 (holding void temporary-injunction order merely

reciting: “The Court finds . . . Plaintiff will suffer irreparable injury for which he

has no legal remedy if this injunction is not granted”); see e.g., El Tacaso, Inc. v.

Jireh Star, Inc., 356 S.W.3d 740, 747 (Tex. App.—Dallas 2011, no pet.)

(conclusory statement plaintiff “will suffer an irreparable injury for which it has no

other adequate legal remedy” failed to explain probable, imminent, and irreparable

harm absent injunction).

Here, as discussed above, the district court’s order, which is nine pages in

length, sets out in specific detail the reasons for its issuance. The order explains

that Judge Henry has “interfered with” the “ability of the Galveston County

judiciary to perform its judicial functions” by “attempting to control the

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replacement of the administrator for the courts in Galveston County.” And Judge

Cox has “demonstrated irreparable injury if a temporary injunction is not issued,”

in that Henry “after keeping the [court administrator] position vacant for over

eleven months,” continues to “stymie the efforts of the judges to restore a judicial

administrator.” And “if not enjoined, [Henry] will continue to deny administrative

support for the Galveston County courts.” Because the order adequately sets out

the reasons why the district court believed that Cox’s “probable rights [would] be

endangered if the writ [did] not issue,” we hold that the district court’s order

complies with rule 683. See Chaumette, 456 S.W.3d at 305.

Judge Henry next argues that the temporary injunction is void because the

bond set by the district court was not approved by the district clerk. Rule 684

provides, in pertinent part, as follows:

In the order granting any temporary restraining order or temporary

injunction, the court shall fix the amount of security to be given by the

applicant. Before the issuance of the temporary restraining order or

temporary injunction the applicant shall execute and file with the clerk

a bond to the adverse party, with two or more good and sufficient

sureties, to be approved by the clerk, in the sum fixed by the judge,

conditioned that the applicant will abide the decision which may be

made in the cause, and that he will pay all sums of money and costs

that may be adjudged against him if the restraining order or temporary

injunction shall be dissolved in whole or in part.

TEX. R. CIV. P. 684 (emphasis added). The failure of an applicant to file such a

bond renders an injunction void. Benavides Indep. Sch. Dist. v. Guerra, 681

S.W.2d 246, 250 (Tex. App.—San Antonio 1984, writ refused n.r.e.).

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The record shows that the district clerk approved Judge Cox’s $100 deposit

in lieu of a bond that he filed in conjunction with the temporary restraining order.

The district court, in issuing the temporary injunction, stated:

Bond for this temporary injunction is set at $100. Finding that [Cox]

has previously posted bond in the amount of $100, such amount shall

be posted as bond for this injunction. . . . On the approval of the bond,

all writs are to issue.

At the hearing, the district court explained:

The bond—there was previously a hundred-dollar bond posted. The

bond for the temporary injunction will be set at $100, and the prior

bond posted will be accepted as that bond by the district clerk. The

district clerk will have to approve that bond, make sure that’s all done.

(Emphasis added.)

Judge Henry complains that the clerk’s record does not show that the

“district clerk approve[d] the bond for the temporary injunction.” In support of his

argument, he relies on Ex parte Lesher, 651 S.W.2d at 736; MW Petroleum Corp.

v. Exxon Corp., No. 14-96-00040-CV, 1997 WL 634159, at *7 (Tex. App.—

Houston [14th Dist.] Oct. 16, 1997, no pet.); and Diversified, Inc. v. Turner, 650

S.W.2d 175, 177 (Tex. App.—Houston [14th] 1983, no writ).

In Lesher, the court held that the district court erred in waiving the

requirement of a bond prior to issuing a temporary restraining order. 651 S.W.2d

at 736. Here, the district court did not waive the posting of a bond. In Diversified,

there was no bond on file whatsoever. 650 S.W.2d at 177. In Exxon, which seems

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to tangentially support Judge Cox’s opposing position, the court held that the

district court did not err in ordering that only a single bond be filed to support an

injunction in a case in which multiple parties had joined seeking the injunction.

1997 WL 634159, at *7. It explained that, “as a practical matter,” there was no

need to secure separate bonds. Id. The court noted that the purpose of a bond is to

protect the party against whom relief is granted for damages incurred as the result

of the injunction. Id. And it “[could] not see how allowing a single party to

provide this protection lessens its effect.” Id. As “a legal matter,” the court found

no authority for the contention that a bond by a single plaintiff to secure an

injunction for the benefit of several plaintiffs did not satisfy the requirements of

rule 684. Id.

As stated, the purpose of a temporary restraining order is to restrain a party

from acting only during the pendency of a request for a temporary injunction, i.e.,

until a full evidentiary hearing on the temporary injunction occurs. Lopez, 845

S.W.2d at 809; see TEX. R. CIV. P. 680. Here, at the temporary injunction hearing,

the purpose of the temporary restraining order having expired, the district court

ordered that Judge Cox’s prior cash deposit made in lieu of a bond supporting the

temporary restraining order be retained as the bond securing the temporary

injunction. See Ex parte Coffee, 328 S.W.2d 283, 285, 291–92 (Tex. 1959) (trial

court may authorize bond filed for temporary restraining order continued as bond

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supporting temporary injunction). And this is not a case in which a party sought

recovery on the bond given to support a temporary restraining order. We conclude

that the requisites of rule 684 have been satisfied.

Accordingly, we hold that the district court’s injunction order is not void on

the grounds that it fails to comply with rules 683 and 684.

We overrule Judge Henry’s fourth issue.

Conclusion

In sum, the district court, in entering the temporary injunction, found that

Judge Henry had “intentionally interfered with the independence of the Galveston

County judiciary” and its ability “to perform its judicial functions,” and he would

continue to do so. And the evidence presented at the temporary injunction hearing

supports the district court’s findings. Thus, the district court had the inherent

power to enjoin Henry from further interfering with the independence of the

Galveston County Judiciary and to order him to perform the actions necessary to

reinstate Quiroga to her position as Galveston County DJA with her annual salary

of $113,000, pending trial.

The district court, in so enjoining Henry, also acted within it supervisory

jurisdiction under article V, section 8 of the Texas Constitution. Further, the

district court’s temporary injunction has not become moot on appeal, the district

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court has subject matter jurisdiction over Judge Cox’s claims, and the temporary

injunction is not void.

We recognize that it may seem somewhat counterintuitive to some members

of the legislative and executive branches of our government that Texas courts have

the inherent power to compel funding from them for essential court staff and

facilities. And it may come as a surprise to some that the Texas Constitution

specifically grants to Texas district courts supervisory jurisdiction over county

commissioners courts. However, as one of our sister courts long ago noted, “[t]hat

the judicial branch of government possesses inherent power to require the

legislative and executive branches to provide essential staffing and facilities for it

to properly perform its judicial functions is no longer open to serious question.”

Dist. Judges of 188th Judicial Dist. v. Cty. Judge and Comm’rs’ Court for Gregg

Cty., 657 S.W.2d 908, 909 (Tex. App.—Texarkana 1983, writ ref’d n.r.e.)

(emphasis added). Indeed, as explained by the Texas Supreme Court, without such

powers, “a legislative body could destroy the judiciary by refusing to adequately

fund the courts.” Vondy, 620 S.W.2d at 110.

Texas courts should of course exercise their inherent powers and their

supervisory jurisdiction over commissioners courts sparingly and carefully. They

should always be mindful that “the process of allocating public resources is

complex” and “[b]oth state and local legislative bodies make difficult decisions

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when faced with competing priorities.” Mays, 755 S.W.2d at 82. And the

legislative and the executive branches should be mindful that “unlike state

agencies, courts cannot reduce services”; “[t]he judiciary can only delay or

postpone the disposition of justice.” Id. Thus, the judiciary simply cannot “permit

its efficiency and progress to be stymied” by those who might “misunderstand the

constitutional role and function of the judiciary as a separate, independent and

equal branch of government.” Id. at 83. Although “the ‘power of the purse’ is a

legislative power,” “it is not an absolute power” and “may not be used to divest

the court of its ability to function independently and effectively.” Id.

Ultimately, as explained by the Texas Supreme Court:

Although the judiciary retains the inherent power to compel necessary

funding, a spirit of mutual cooperation is unquestionably the people’s

best guarantee of a constitutional government. Rather than being a

source of contention, the judiciary’s insistence on its own inherent

powers can open an avenue for greater cooperation among the

branches of government. Only by recognizing each other as equals

can we effectively communicate.

Id. (emphasis added).

We affirm the order of the district court. We dismiss all pending motions as

moot.

Terry Jennings

Justice

Panel consists of Justices Jennings, Higley, and Brown.

Brown, J., concurring and dissenting.

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