No. 15-0993______________________________________________

IN THE SUPREME COURT OF TEXAS______________________________________________

THE HONORABLE MARK HENRY, COUNTY JUDGE OF GALVESTON

COUNTY,Petitioner,

v.

THE HONORABLE LONNIE COX, JUDGE OF THE 56TH DISTRICT COURT OF

GALVESTON COUNTY,Respondent.

______________________________________________

From the First Court of Appeals at Houston, Texas.(No. 01-15-00583-CV)

____________________________________________________________

RESPONSE TO EMERGENCY MOTION TO PREVENT INTERFERENCE WITH SUBJECT MATTER OF COURT’S

JURISDICTION____________________________________________________________

James E. “Trey” Trainor, IIIState Bar No. 24042052trey.trainor@akerman.comAKERMAN LLP700 Lavaca Street, Suite 1400Austin, Texas 78701Telephone: (512) 623-6700Fax: (512) 623-6701

N. Terry Adams, Jr.State Bar No. 00874010terry.adams@akerman.comJoseph M. NixonState Bar No. 15244800joseph.nixon@bmpllp.comNicholas D. SteppState Bar No. 24077701nicholas.stepp@akerman.comAKERMAN LLP1300 Post Oak Blvd., Suite 2500Houston, Texas 77056Telephone: (713) 623-0887Fax: (713) 960-1527

Counsel for Petitioner, The Honorable Mark Henry

FILED15-099312/19/2016 5:11:34 PMtex-14366426SUPREME COURT OF TEXASBLAKE A. HAWTHORNE, CLERK

COMES NOW, Respondent Judge Mark Henry, and asks the Court to deny Judge

Cox’s Emergency Motion, filed December 19, 2016, and in support thereof would

respectfully show the Court as follows:

The Galveston County Commissioners Court placed consideration of a court

administrator for the County Courts at Law on its December 20, 2016 agenda

because the judges of the County Courts at Law asked the Commissioners Court

for an administrator. Judge Cox’s Emergency Motion should be denied because it

offers no legal or factual basis for granting him any relief. Judge Cox alleges that

Judge Henry has violated the district court’s temporary injunction order and is

attempting to moot this case. Judge Cox is incorrect in all respects.

1. The Commissioners Court Agenda for December 20, 2016 shows that Galveston County government is functioning as it should.

The December 20, 2016 Commissioners Court agenda shows that Galveston

County government is functioning as it should. Pursuant to Section 75.401 of the

Texas Government Code, the judges of the County Courts at Law in Galveston

County asked the Commissioners Court to create a court administrator system for

the county courts at law in Galveston County. Exhibit A.

The Galveston County Commissioners Court promptly placed the item on its

public agenda and its executive session agenda for December 20, 2016. Exhibit B.

What action the Galveston County Commissioners Court may take on the

application of the judges of the County Courts at Law remains to be seen. By

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statute, the Commissioners Court may approve the creation of a court administrator

system, including the designation of local court divisions and duties of each court

administrator division. TEX. GOV’T CODE § 75.401(a)–(b). The court administrator

would then be appointed by the judges served by the court administrator and

entitled to reasonable compensation, as determined by the judges served and in the

salary range set for the position, as set by the commissioners court. Id.

§ 75.401(c)–(d); see also Exhibit A at Exhibit 1.

This is not some nefarious plot to undermine all or part of the judiciary in

Galveston County. It is, rather, an example of exactly how county government

should work—respectful cooperation between the judiciary and the commissioners

court.

2. Any action by Galveston County Commissioners Court on the County Court at Law Judges’ request will have no effect on this case.

Judge Cox argues that Judge Henry is attempting to deprive this Court of

jurisdiction over this appeal. That is false. No action the Commissioners Court

might take on the request of the County Court at Law judges will have any impact

on the Court’s jurisdiction.

Judge Cox believes that Judge Henry set the salary of the Court

Administrator for the district courts arbitrarily low. Ultimately, Judge Cox sued

over it. The fundamental separation of powers issue in this appeal is who has the

power to set a salary range for a court administrator under section 75.401 of the

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Texas Government Code. As an appeal from the grant of a temporary injunction,

questions before the court include (i) whether the court of appeals erred in holding

that a district court’s inherent power provides an independent basis of jurisdiction

for disregarding both a valid statute and the separation of powers clause in the

Constitution, and (ii) whether the district court abused its discretion in ordering a

specific salary for a specific person in a new job created by judicial order and

without commissioners court approval. Both the district court and the court of

appeals erred. Their actions violate section 75.401 of the Government Code and

the separation of powers clause of the Constitution. They also stand in stark

contrast to the overwhelming weight of separation of powers jurisprudence in

Texas and elsewhere, as Judge Henry’s briefing has demonstrated.

These questions of law do not become moot if the county court at law judges

request and receive their own, separate court administrator system.

3. The temporary injunction order is stayed by operation of law.

Judge Henry was sued as a county official in his official capacity. Therefore,

his Notice of Appeal operated as a supersedeas bond. TEX. CIV. PRAC. & REM.

CODE § 6.001(b )(4); In re Long, 984 S.W.2d 623, 625 (Tex. 1999); Enriquez v.

Houten, 857 S.W.2d 153, 154 (Tex. App.—El Paso 1993, orig. proceeding); see

Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 485 (Tex. 1964). A

government official’s notice of appeal, when perfected, automatically supersedes

4

the trial court’s judgment, “and that suspension remains in effect until all appellate

rights are exhausted.” In re Long, 984 S.W.2d at 625. “The rules apply to [a

government official’s] appeal of injunctions.” Id.

A judgment or order that has been superseded is not required to be followed,

and person adversely affected by the judgment or order cannot be punished in

contempt for disobedience thereof. Ex parte Kimbrough, 146 S.W.2d 371, 371

(Tex. 1941) (orig. proceeding); City of San Antonio v. Clark, 554 S.W.2d 732, 733

(Tex. Civ. App.—San Antonio 1977, no writ).

Because Judge Henry’s Notice of Appeal suspended enforcement of the

temporary injunction during his appeal, no alleged violation of the erroneous

temporary injunction order has any legal significance. Lifting the stay order or

issuing a new order would improperly deny Judge Henry the substantive

protections afforded under Texas law. In re Long, 984 S.W.2d at 625; In re State

ex rel. Munk, No. 11-1500124-CV, 2015 WL 3534123, at *1 (Tex. App.—Eastland

June 5, 2015, orig. proceeding).

CONCLUSION AND PRAYER

Judge Cox is reaching beyond any remotely arguable jurisdiction of his court

or the district courts generally in an attempt to control both the county courts at law

and the commissioners court. Fortunately for the citizens of Galveston County,

Texas law does not provide him that power.

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For these reasons and the reasons articulated in Judge Henry’s briefing, the

Court should deny Judge Cox’s emergency motion in all things, grant Judge

Henry’s Petition for Review, set oral argument, reverse the court of appeals, and

vacate the temporary injunction. Judge Henry also prays for all other relief to

which he may be justly entitled.

Respectfully submitted,

/s/ N. Terry Adams, Jr.

James E. “Trey” Trainor, IIIState Bar No. 24042052trey.trainor@akerman.comAKERMAN LLP700 Lavaca Street, Suite 1400Austin, Texas 78701Telephone: (512) 623-6700Fax: (512) 623-6701

N. Terry Adams, Jr.State Bar No. 00874010terry.adams@akerman.comJoseph M. NixonState Bar No. 15244800joseph.nixon@akerman.comNicholas D. SteppState Bar No. 24077701Nicholas.stepp@akerman.comAKERMAN LLP1300 Post Oak Blvd., Suite 2500Houston, Texas 77056Telephone: (713) 623-0887Fax: (713) 960-1527

Counsel for PetitionerThe Honorable Mark Henry, County Judge of Galveston County

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CERTIFICATE OF SERVICE

I hereby certify that I have complied with the Texas Rules of Appellate Procedure and the Electronic-Filing Rules for the Supreme Court of Texas and that the foregoing Reply Brief on the Merits was e-filed with the Clerk of the Court and e-served on all opposing counsel listed below in accordance with these Rules on this the 19th day of December, 2016.

Mark W. Stevensmarkwandstev@sbcglobal.net P.O. Box 8118Galveston, Texas 77553

Counsel for Respondent

/s/ Nicholas D. SteppNicholas D. Stepp

Exhibit A

{40259716;1}

DECLARATION OF THE HONORABLE JOHN GRADY

STATE OF TEXAS §

§

COUNTY OF GALVESTON §

The undersigned individual, under penalty of perjury, testifies as follows:

1. “My name is John Grady. I am the presiding judge of the County Court at Law

No. 1, Galveston County, Texas. I am over the age of eighteen, licensed to

practice law in Texas, and I am competent to make this declaration. I have never

been convicted of a felony or a crime of moral turpitude. This declaration is based

on my personal knowledge and is true and correct.

2. “In my capacity as Judge of the County Court at LawNo. 1, Galveston County,

Texas, I have joined in a request to the Galveston County Commissioners Court

to establish a Court Administrator system for the Galveston County Courts at

Law.

3. “As an indication of my support for a Court Administration system for the County

Courts at Law in Galveston County, I signed a request addressed to County Judge

Mark Henry and the Galveston County Commissioners on December 16, 2016. A

true and correct copy of the request that I signed is attached to this declaration as

Exhibit 1.”

FURTHER DECLARANT SAYETH NOT.

I DECLARE, UNDER PENALTY OF PERJURY, that the foregoing testimony is true

and correct, based on my personal knowledge, on this _____ day of December, 2016.

____________________________________

The Honorable John Grady

Exhibit 1

DECLARATION OF THE HONORABLE BARBARA E. ROBERTS

STATE OF TEXAS

COUNTY OF GALVESTON

The undersigned individual, under penalty of perjury, testifies as follows:

"My name is Barbara E. Roberts. I am the presiding judge of the County Court at Law No. 2, Galveston County, Texas. I am over the age of eighteen, licensed to practice law in Texas, and I am competent to make this declaration. I have never been convicted of a felony or a crime of moral turpitude. This declaration is based on my personal knowledge and is true and correct.

2. "In my capacity as Judge of the County Court at Law No. 2, Galveston County, Texas, I have joined in a request to the Galveston County Commissioners Court to establish a Court Administrator system for the Galveston County Courts at Law.

3. "As an indication of my support for a Court Administration system for the County Courts at Law in Galveston County, I signed a request addressed to County Judge Mark Henry and the Galveston County Commissioners on December 16, 2016. A true and correct copy of the request that I signed is attached to this declaration as Exhibit 1."

FURTHER DECLARANT SAYETH NOT.

I DECLARE, UNDER PENALTY OF PERJURY, that the foregoing testimony is true

and correct, based on my personal knowledge, on this M day of December, 2016.

The Honorable Barbara E. Roberts

DECLARATION OF THE HONORABLE BARBARA E. ROBERTS

STA 1'F, OF TEXAS

COUNTY OF GALVESTON

The undersigned individual, under penalty of perjury, testifies as follows:

1. "My name is Barbara E. Roberts. I am the presiding judge of the County Court at Law No. 2, Galveston County, Texas. I am over the age of eighteen, licensed to practice law in Texas, and I am competent to make this declaration. I have never been convicted of a felony or a crime of moral turpitude. This declaration is based on my personal knowledge and is true and correct.

2. "In my capacity as Judge of the County Court at Law No. 2, Galveston County, Texas, I have joined in a request to the Galveston County Commissioners Court to establish a Court Administrator system for the Galveston County Courts at Law.

"As an indication of my support for a Court Administration system for the County Courts at Law in Galveston County, I signed a request addressed to County Judge Mark Henry and the Galveston County Commissioners on December 16, 2016. A true and correct copy of the request that I signed is attached to this declaration as Exhibit 1."

FURTHER DECLARANT SAYETH NOT.

I DECLARE, UNDER PENALTY OF PERJURY, that the foregoing testimony is true

and correct, based on my personal knowledge, on this /67 day of December, 2016.

The Honorable Barbara E. Roberts

Exhibit 1 Exhibit 1

County Judge Mark Henry and County Commissioners:

Pursuant to Texas Government Code, § 75.401, the Judges of County Court No. 1, No.2, and No.3, request Galveston County Commissioners Court approve the establishment of a "Court Administrator" system for the three Galveston County Courts at Law.

If approved, and pursuant to § 75.401, the Court Administrator for Galveston County Courts shall cooperate with the regional, presiding, and local administrative judges and state agencies having duties relating to the operation of the statutory county courts to promote uniform and efficient administration of justice.

Pursuant to § 75.401, the Court Administrator shall be appointed by the judges of the three statutory County Courts served by the Court Administrator and the Court Administrator shall serve at the pleasure of those judges.

Wetia. If approved, we estimate that approximately one-third of the 4ases filed in the Galveston County district and county courts will be handled though the Court Administrator for the County Courts.

Respec pitted by:

Jo11 Grady, Jud Galveston Coun Court at Law No. 1

Barbara E. Roberts, Judge Galveston County Court at Law No. 2

Jack Ewing, Judge Galveston-county Cou at Law No. 1

Exhibit B

Exhibit 1