Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/22/2015 4:08:24 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00583-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 7/22/2015 4:08:24 PM CHRISTOPHER PRINE CLERK
No. 01-15-00583-CV __________________________________________ IN THE FIRST COURT OF APPEALS AT HOUSTON, TEXAS _______________________________________ T HE H ONORABLE M ARK H ENRY , C OUNTY J UDGE OF G ALVESTON C OUNTY , Appellant,
v. HE H ONORABLE L ONNIE C OX ,
Appellee. _____________________________________________________ On Interlocutory Appeal from the 56th District Court, Galveston County, Texas __________________________________________________________ APPELLANT’S CONSOLIDATED RESPONSE TO APPELLEE’S
MOTIONS FOR EMERGENCY RELIEF, FOR CONTEMPT, AND TO ENFORCE THE TEMPORARY INJUNCTION _______________________________________________________________ TO THE HONORABLE FIRST COURT OF APPEALS:
Appellant, The Honorable Mark Henry, County Judge of Galveston County, files this Consolidated Response to Appellee’s Motions for Emergency Relief, for
Contempt, and for Enforcement of the Temporary Injunction (and also the
supplementary motion to enforce), and would show the Court as follows:
Background
1. The above-captioned matter is an interlocutory appeal of a temporary injunction order. (CR. 334.); T § 51.014(a)(4). The
Honorable Lonnie Cox in his official capacity as Judge of the 56 th District Court of
Galveston County brought the underlying suit against The Honorable Mark Henry,
County Judge of Galveston County, seeking to reinstate the employment of Bonnie
Quiroga as Director of the Galveston County Justice Administration. (CR. 9, 247.)
2. Ms. Quiroga was appointed to that position in 2000 by the Galveston County Commissioner’s Court and it terminated her employment on July 24, 2014.
3. On July 6, 2015, Visiting Judge Sharolyn Wood signed a temporary injunction order against County Judge Mark Henry requiring among other things
“the reinstatement of Bonnie Quiroga to her position as Galveston County Justice
Administrator” and the payment “by the issuance of the appropriate check or direct
deposit to Ms. Quiroga her same salary as was paid prior to July 24, 2014.” (CR.
337.)
4. County Judge Mark Henry immediately perfected his appeal of the temporary injunction order by filing a Notice of Interlocutory Appeal. (CR. 334.); EX . C IV . P RAC . & R EM . C § 51.014(a)(4).
5. County Judge Mark Henry also perfected an additional interlocutory appeal from the denial of his plea to the jurisdiction. T ODE
§ 51.014(a)(8); (CR. 231.)
Response Argument 6. The issue presented by Appellee’s motions is the effect that County Judge Mark Henry’s Notice of Interlocutory Appeal had on the temporary
injunction order. According to Appellee, County Judge Mark Henry was required
to comply with the temporary injunction order after filing his notice of appeal and
that by not doing so he should be subject to contempt and enforcement
proceedings. The settled law provides otherwise.
When County Judge Mark Henry perfected his interlocutory appeal of the temporary injunction order that suspended the temporary injunction during
the appeal as a matter of law.
7. As a general rule, when a county official files a notice of appeal in his or her official capacity that automatically supersedes any judgment; and that
suspension remains in effect until all appellate rights are exhausted. In re Long ,
984 S.W.2d 623, 625-26 (Tex. 1999) (citing T §
6.001(b)(4)). This rule applies to an appeal of a permanent injunction (which is a
final judgment), and to an interlocutory appeal of a temporary injunction order by a
county official. [1] See Id . at 625; City of San Antonio v. Clark , 554 S.W. 732, 733
(Tex. Civ. App. – San Antonio 1977, no writ) (cited with approval by the supreme
court in In re Long, 984 S.W.2d at 625-26)); City of Dallas v. North by West
Entertainment, Ltd ., 24 S.W.3d 917, 918-19 (Tex. App. – Dallas 2000, no pet.);
*4 City of Galveston v. Humphrey , 2001 WL 204765 at *5-6 (Tex. App. – Houston
[1 st Dist.] 2001, no pet.).
8. When an interlocutory appeal of a temporary injunction is involved, like here, Texas Rule of Appellate Procedure 29 controls the inquiry since it
specifically governs interlocutory appeals. City of Dallas , 24 S.W.3d at 918-19.
Rule 29.1(b) provides that “[p]erfecting an appeal from an order granting
interlocutory relief does not suspend the order appealed from unless…the appellant
is entitled to supersede the order without security by filing a notice of appeal.” EX . R. A PP . P. 29.1(b). Because County Judge Mark Henry as a county official
can automatically supersede any judgment by filing a notice of appeal, In re Long ,
984 S.W.2d at 625-26; T § 6.001(b)(4), his perfection
of this interlocutory appeal of the temporary injunction order automatically
suspended the temporary injunction during the course of the appeal pursuant to
Rule 29.1(b) as a matter of law. This is the teaching of City of Dallas. See 24
S.W.3d at 918-19.
County Judge Mark Henry is not required to obey the injunction during the
course of this interlocutory appeal and is not in contempt of either the trial court or this Court.
9. This Court made the same holding as City of Dallas in City of Galveston v. Humphrey, 2001 WL 204765 at *5-6 (Tex. App. – Houston [1 st Dist.]
2001, no pet.). That case involved an interlocutory appeal of a temporary
injunction against the city to restore a city employee to his former position. The
employee asked this Court to hold the City of Galveston in contempt because it did
not comply with the temporary injunction during the course of the appeal. Id .
Writing for the panel, Justice Jennings rejected the employee’s request for
contempt against the city and explained:
The city was permitted by statute to bring an interlocutory appeal of the temporary injunction. T EX . C IV . P RAC . & R EM . C ODE A NN . § 51.014(a)(4) (Vernon Supp. 2011). In addition, the city could perfect the appeal simply by filing a notice of appeal; it was not required to give a supersedeas bond. T EX . C IV . P RAC . & R EM . C ODE § 6.002(b) (Vernon Supp. 2001). When the city perfected its appeal by filing its notice of appeal, the temporary injunction was suspended under the Rules of Appellate Procedure. See City of San Antonio v. Clark , 554 S.W. 732, 733 (Tex. Civ. App. – San Antonio 1977, no writ); EX . R. A PP . P. 29.1(b). Thus, the city was not required to obey the injunction and was not in contempt of either the trial court or this Court.
Id. at *6 (citation omitted.). This same reasoning applies here to County Judge
Mark Henry.
10. Like in City of Galveston, when County Judge Mark Henry perfected his interlocutory appeal of the temporary injunction order, the temporary injunction
was automatically suspended under the Rules of Appellate Procedure. T EX . R. A PP .
P. 29.1(b); T § 6.001(b)(4). Accordingly, as this
Court explained in City of Galveston, County Judge Mark Henry is not required to
obey the temporary injunction during the course of this appeal and is not in
contempt of either the trial court or this Court for following the automatic
suspension. [2]
Neither Rule 24.2(a)(3) nor In re State Board of Educator Certification changes
the suspension of this interlocutory injunction order 11. Appellee attempts to sidestep this result by contending Texas Rule of Appellate Procedure 24.2(a)(3) and In re State Board of Educator Certification ,
452 S.W.3d 802 (Tex. 2014) allows the trial court to disregard the foregoing
authorities and not honor the suspension of the temporary injunction order during
this appeal. Rule 24.2(a)(3) provides:
When the judgment is for something other than money or an interest in property… the trial court may decline to permit the judgment to be superseded if the judgment creditor posts security ordered by the trial court in an amount and type that will secure the judgment debtor against any loss or damage caused by the relief granted the judgment creditor if an appellate court determines, on final disposition, that relief was improper. . R. A PP . P. 24.2(a)(3) (emphasis added). In State Board of Educator
Certification , an appeal of a permanent injunction, the supreme court construed
Rule 24.2(a)(3) in the context of that final judgment and held this rule provides a
trial court with discretion to enforce its non-money judgments against a
governmental entity if the appellee posts security in accordance with Rule
*7 24.2(a)(3). [3] Id . at 808-09. State Board of Educator Certification does not involve
or mention an interlocutory appeal of a temporary injunction order.
12. The only known case to address Rule 24.2(a)(3) in the context of an interlocutory appeal of a temporary injunction by a governmental entity/official is
City of Dallas v. North by West Entertainment, Ltd ., 24 S.W.3d 917 (Tex. App. –
Dallas 2000, no pet.). In City of Dallas , the court of appeals rejected the same
argument that Appellee now makes and held:
Rule 24 is a general rule that provides how appellants may supersede final judgments. In contrast, rule 29 is a specific rule applying only to the appeal of interlocutory in civil cases. See Holmes v. Morales , 924 S.W.2d 920, 923 (Tex. 1996) (holding that when rule or statute applies to subject, it controls over general rules, statutes, or provisions); In re P.C ., 970 S.W.2d 576, 678 (Tex. App. – Dallas 1998, pet. denied) (discussing rule of statutory construction that specific controls over general). Because this case involves an interlocutory order, we conclude rule 29 controls.
Id. at 919. This reasoning applies to County Judge Mark Henry’s interlocutory
appeal of the temporary injunction. Pursuant to City of Dallas, Rule 29.1(b) rather
than Rule 24(a)(3) controls the suspension of the temporary injunction order in this
case during this interlocutory appeal. [4]
*8 13. Accordingly, when County Judge Mark Henry perfected his interlocutory appeal of the temporary injunction order, the temporary injunction
was automatically suspended as a matter of law and County Judge Mark Henry is
not required to obey the temporary injunction during this appeal and is not in
contempt of either the trial court or this Court for following the automatic
suspension. See City of Galveston v. Humphrey, 2001 WL 204765 at *5-6.
County Judge Mark Henry’s additional interlocutory appeal of the denial of
his plea to the jurisdiction also stays all other proceedings in the trial court.
14. County Judge Mark Henry is also protected by a further stay of all other proceedings in the trial court under section 51.014(b) of the Texas Civil
Practice and Remedies Code due to his additional interlocutory appeal of the denial
of his plea to the jurisdiction. [5] See Texas A&M University System v. Koseoglu , 233
S.W.3d 835, 837 (Tex. 2007); T § 51.014(a)(8), (b)
prior to July 24, 2014.” (CR. 337.) To the extent this is a requirement to restore back pay, it
constitutes money damages and falls outside of Rule 24(a)(3). See City of Seagoville v. Lytle,
227 S.W.3d 401, 412 (Tex. App. – Dallas 2007, no pet.) (recognizing an injunction to restore
pay back or unspecified back benefits constitutes money damages.).
[5] Appellee suggests that County Judge Mark Henry withdrew his plea to jurisdiction. That is
incorrect. Trial counsel for County Judge Mark Henry indicated to the trial court during an early
hearing that the plea to the jurisdiction could be postponed due to plaintiff’s representation that
certain jurisdictional allegations would be re-pleaded. The trial court then stated that plaintiff
could handle the matter on the record, which did not happen. (RR. 2:7-8.) Trial counsel for
County Judge Mark Henry then proceeded to make his jurisdictional arguments which the trial
court subsequently denied in its written order denying County Judge Mark Henry’s plea to the
jurisdiction. (RR. 2:12-13 et. seq; CR. 231.)
(providing for an interlocutory appeal by a governmental entity/official from the
denial of a plea to the jurisdiction and the interlocutory appeal stays all
proceedings in the trial court during the appeal). As a result, for this additional
reason, County Judge Mark Henry is not required to obey the temporary injunction
during this appeal and is not in contempt of either the trial court or this Court for
following this additional stay.
15. Moreover, because of the nondiscretionary operation of section 51.014(b), any future hearings in the trial court to enforce the temporary injunction
or to deny County Judge Mark Henry the supersedeas effect of his appeal of the
temporary injunction order will constitute an abuse of discretion. See In re Texas
Education Agency, 441 S.W.3d 747, 750 (Tex. App. – Austin 2014, orig.
proceeding) (“[T]he stay set forth in section 51.014(b) is statutory and allows no
room for discretion”—granting mandamus and holding the trial court abused its
discretion by violating section 51.014(b) in denying the supersedeas effect of the
Education Commissioner’s appeals of temporary injunction orders after the
Commissioner had also appealed the denial of his plea to the jurisdiction.). In sum,
all proceedings in the trial court, including the temporary injunction order, are
completely stayed during the pendency of County Judge Mark Henry’s appeals.
16. For all of these reasons, Appellee’s Motions for Contempt, and for Enforcement of the Temporary Injunction should be denied in all things. With
respect to Appellee’s Motion Emergency Relief, County Judge Mark Henry agrees
that Appellee’s Motions should be denied without delay.
WHEREFORE, PREMISES CONSIDERED Appellant, The Honorable Mark Henry, County Judge of Galveston County respectfully requests the Court to
deny Appellee’s Motions for Contempt, and for Enforcement of the Temporary
Injunction should in all things. Appellant additionally prays for such other and
further relief to which he may be entitled.
Respectfully submitted, B EIRNE , M AYNARD & P ARSONS , L.L.P. By: /s/ N. Terry Adams, Jr .
N. Terry Adams, Jr.
Texas Bar No. 00874010 tadams@bmpllp.com Joseph M. Nixon Texas Bar No. 15244800 jnixon@bmpllp.com 1300 Post Oak Blvd, Suite 2500 Houston, Texas 77056 (713) 623-0887 (Tel) (713) 960-1527 (Fax) *11 James E. “Trey” Trainor Texas Bar No. 24042052 ttrainor@bmpllp.com 401 W. 15 th Street, Suite 845 Austin, Texas 78701 (512) 623-6700 (Tel) (512) 623-6701 (Fax) Counsel for Appellant CERTIFICATE OF SERVICE I hereby certify that I have complied with the Texas Rules of Appellate Procedure and the Local Rules of this Court and that the foregoing Consolidated
Response to Appellee’s Motions for Emergency Relief, for Contempt, and
Enforcement of the Temporary Injunction have been electronically filed and
served on all counsel of record in accordance with these Rules on this the 22nd
day of July, 2015.
Mark W. Stevens
P.O. Box 8118
Galveston, Texas 77553
markwandstev@sbcglobal.net
/s/ N. Terry Adams, Jr.
N. Terry Adams, Jr.
[1] Elizondo v. Williams , 643 S.W.3d 765, 767 (Tex. App. – San Antonio 1982, no writ) (recognizing a permanent injunction is a final judgment.).
[2] The same is also true for all of the other individuals listed in Appellee’s motions who work with or for County Judge Mark Henry.
[3] Elizondo , 643 S.W.3d at 767 (recognizing a permanent injunction constitutes a final judgment.).
[4] Even if Rule 24(a)(3) could override Rule 29.1(b) for purposes of this interlocutory appeal of the temporary injunction order, it is still inapplicable. Rule 24(a)(3) is limited on its face to judgments “for something other than money or an interest in property.” Assuming arguendo that the temporary injunction order here could be a judgment, it requires, in part, the payment “by the issuance of the appropriate check or direct deposit to Ms. Quiroga her same salary as was paid