The Honorable Richard MAYS, Judge, et al., Relators, v. The FIFTH COURT OF APPEALS, Respondent.
No. C-7342.
Supreme Court of Texas.
June 22, 1988.
Rehearing Denied Sept. 14, 1988.
RAY and CULVER, JJ., join in this dissent.
Kerry W. Young, Dallas County Criminal Dist. Courts, Dallas, for relators.
Earl Luna and Mary Milford, Law Offices of Earl Luna, Dallas, for respondent.
OPINION
RAY, Justice.
This case, involving a salary increase for court reporters, is governed by
When the Commissioners Court refused to fund the 5% raise, the Judges ordered them to direct the County Treasurer to issue payroll checks to the court reporters reflecting the 5% salary increase. (“The October orders“). The Commissioners Court did not comply and the Judges issued show cause orders. The Commissioners Court then filed for mandamus relief with the Dallas Court of Appeals which found that: (1) the orders actually direct action and, therefore, were essentially writs of mandamus orders made without notice and hearing to the Commissioners Court; (2) the Judges contravened
This case is controlled by
(a) An official district court reporter shall be paid a salary set by the order of the judge of the court. This salary is in addition to transcript fees, fees for a statement of facts, and other necessary expenses authorized by law.
(c) An order increasing the salary of an official district court reporter must be submitted to the commissioners court of each county in the judicial district not later than September 1 immediately before the adoption of the county budget for the next year. A commissioners court may allow an extension of this time limit.
The District Judges complied with
We hold that the pay increase, which was less than the 10% increase authorized by
The Texas Constitution has invested the Legislature with the authority to provide for and compensate the district court reporters.
SPEARS, J., concurs and WALLACE, ROBERTSON, KILGARLIN and MAUZY, JJ., join.
SPEARS, Justice, concurring.
I concur in the court‘s opinion authored by Justice Ray. I would go further and hold 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. Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104, 109-110 (Tex.1981); see also Eichelberger v. Eichelberger, 582 S.W.2d 395, 398-399 (Tex.1979). On this basis alone, a district judge may set a reasonable salary for a court reporter.
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.1 The judiciary is not an agency, but is a constitutionally established separate, equal and independent branch of government. See LeCroy v. Hanlon, 713 S.W.2d 335 (Tex.1986).
The courts of Texas derive their judicial power directly from the constitution.
Thus, this 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. 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
The proposition that courts possess the inherent power to compel the expenditure of public funds for their own operation is not a recent innovation. Nationwide, courts have used their inherent powers to compel funding for a wide variety of essentials. As far back as 1874, the Wisconsin Supreme Court declared that its janitor was a skilled, confidential employee and held:
It is a power inherent in every court of record, and especially courts of last resort, to appoint such assistants; and the court itself is to judge of the necessity.
In re Janitor of Supreme Court, 35 Wis. 410, 419 (1874). In 1902, the Nevada Supreme Court requested chairs and carpet from the Board of Commissioners which, by statute, controlled the expenditure of all appropriations for furnishing, maintaining and repairing the capitol buildings and grounds. When the Board refused the request, the court itself made the purchase and then ordered the Board to pay the bill. The court stated:
If this Board has the absolute control, as claimed, then, by refusing to furnish the courtroom with a stove or other means of heating, could it obstruct the court in its jurisdiction during a greater part of each year. By refusing tables it could prevent the court making records required by law. To assume that the legislature did confer any such absolute power upon the Board is to assume that the legislature possesses unlimited power of legislation in that matter,—that it could by hostile legislation destroy the judicial department of the government of this state.
State ex rel. Kitzmeyer v. Davis, 26 Nev. 373, 68 P. 689, 690-691 (1902).
More recently, a relatively minor expenditure led the Massachusetts Supreme Judicial Court to an emphatic assertion of its inherent powers. When there was no stenographer available, a lower court judge secured the parties’ consent to use a tape recorder as a substitute. No tape recorder was available at the courthouse; so an $80.00 tape recorder and $6.00 worth of tapes were immediately purchased from a local store. Stating that it was “a necessary expense” of the court, the judge forwarded the invoice to the county treasurer. The county treasurer refused to pay the bill; he contended that, outside of specific statutory provisions, the court had no authority to bind the county for the purchase of goods or services and that there was no specific appropriation in the county budget for a tape recorder. However, when the case was presented to the Massachusetts Supreme Judicial Court, that court rejected the county treasurer‘s contentions and held:
[A]mong the inherent powers possessed by every judge is the power to protect his court from impairment resulting from inadequate facilities or a lack of supplies or supporting personnel. To correct such an impairment, a judge may, even in the absence of a clearly applicable statute, obtain the required goods or services by appropriate means, including arranging himself for their purchase and ordering the responsible executive official to make payment. It is not essential that there have been a prior appropriation to cover the expenditure. Where an obligation is thus legally incurred, it is the duty of the state, or one of its political subdivisions, to make payment.
O‘Coin‘s Inc. v. Treasurer of County of Worcester, 362 Mass. 507, 287 N.E.2d 608, 612 (1972).
The Indiana courts have used their inherent powers to order the installation of a more modern and efficient telephone service. State v. Superior Court of Marion County, Rm. No. 1, 264 Ind. 313, 344 N.E.2d 61 (1976). The expenditure of funds for
Numerous 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. Mowrer v. Rusk, 95 N.M. 48, 618 P.2d 886 (1980); In the Matter of Court Reorganization Plan of Hudson County, 161 N.J.Super. 483, 391 A.2d 1255 (1978), aff‘d 78 N.J. 498, 396 A.2d 1144, cert. denied sub nom. Clark v. O‘Brien, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979); McAfee v. State ex rel. Stodola, 258 Ind. 677, 284 N.E.2d 778 (1972); State ex rel. Schneider v. Cunningham, 39 Mont. 165, 101 P. 962 (1909); Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963) (en banc). In Noble County Council v. State ex rel. Fifer, 234 Ind. 172, 125 N.E.2d 709 (1955), the Supreme Court of Indiana expressly recognized that this power of the courts to employ necessary personnel and fix their salaries was grounded on the most fundamental of constitutional principles and was also mandated by the open courts provision of the Indiana constitution. The court explained:
These 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., 125 N.E.2d at 714. Some courts have expressly concluded that, as a matter of constitutional law, the judiciary must directly control court personnel. Mowrer v. Rusk, 95 N.M. 48, 618 P.2d 886 (1980); Holohan v. Mahoney, 106 Ariz. 595, 480 P.2d 351 (1971) (en banc); Massie v. Brown, 9 Wash.App. 601, 513 P.2d 1039 (1973), aff‘d, 84 Wash.2d 490, 527 P.2d 476 (1974) (en banc). On this basis, these courts have held that court employees are not entitled to the protections of a general civil service system.
Finally, 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. Young v. Board of County Commissioners, 91 Nev. 52, 530 P.2d 1203 (1975).
These cases demonstrate the widespread acceptance of the doctrine of courts’ inherent powers. Indeed, in 1965, a statement of principles asserting the need for financial independence of the courts was adopted by the Conference of Chief Justices, by the National Conference of Court Administrators, and by most of the countries of North and South America at the First Judicial Conference of the Americas. Statement of Principles: The Need for Independence in Judicial Administration, 50 Judicature 129 (1966); Judicial Independence is Keynote of Judicial Conference of the Americas, 49 J.Am.Jud.Soc‘y 44 (1965).
The process of allocating public resources is complex. Both state and local legislative bodies make difficult decisions when faced with competing priorities. Political and economic considerations often result in the relatively unassertive requests of the judiciary being neglected. However, unlike state agencies, courts cannot reduce services. The judiciary can only delay or postpone the disposition of justice. Legislative leaders must realize that courts have been neglected for too long and must now receive greater financial support. In this day and time, with ever increasing dockets, modern word-processing equipment, computers, and skilled personnel to assist with
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.
The judiciary‘s power to compel funding is not dependent on legislative authority. However, in this particular instance, the district judges did act pursuant to an express statutory mandate in setting the court reporters’ salaries.
WALLACE, ROBERTSON, KILGARLIN and MAUZY, JJ., join in this concurring opinion.
Notes
Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193, 199, cert. denied, 402 U.S. 974, 91 S.Ct. 1665, 29 L.Ed.2d 138 (1971).Unless the legislature can be compelled by the courts to provide the money which is reasonably necessary for the proper functioning and administration of the courts, our entire judicial system could be extirpated, and the legislature could make a mockery of our form of government with its three co-equal branches—the executive, the legislative and the judicial.