Opinion issued April 14, 2015

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-14-00820-CV

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IN RE GALVESTON COUNTY JUDGE MARK HENRY,

GALVESTON COUNTY COMMISSIONER RYAN DENNARD,

GALVESTON COUNTY COMMISSIONER JOE GIUSTI,

GALVESTON COUNTY COMMISSIONER STEPHEN HOLMES, AND 

GALVESTON COUNTY COMMISSIONER KEN CLARK,

IN THEIR OFFICIAL CAPACITIES AS THE

GALVESTON COUNTY COMMISSIONERS COURT, Relators.

Original Proceeding on Petition for Writ of Mandamus

OPINION CONCURRING IN

DENIAL OF EN BANC RECONSIDERATION

Relators have filed a petition for a writ of mandamus, challenging an ex 

parte order signed by the judge of the 56th Judicial District Court in his capacity as
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Galveston County Administrative District Judge. The order, styled “Ex Parte 

Honorable Mark Henry and Galveston County Commissioners Court,” states in its 

entirety:

On this the 24th day of September, 2014, the Administrative 

Judge of the Galveston County District Courts considered the actions 

of the Honorable Mark Henry and the Galveston County 

Commissioners Court in terminating the employment of the Galveston 

County Justice Administrator on or about July 24, 2014, in proceeding 

to post the position for employment of a new justice administrator and 

in proceeding to interview candidates to fill the position. The 

authority to appoint and terminate court personnel lies with the courts, 

not the county judge nor the commissioners court and the county 

judge’s termination of the justice administrator and proposed selection 

of a replacement violates the separation of powers doctrine and 

infringes on the courts’ inherent powers. These actions also violate 

Local Government Code Sec. 151.004 which prohibits the county 

judge and commissioners court from attempting 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.

It is therefore ORDERED AND DECREED that the actions of 

the county judge and commissioners court of terminating the 

employment of the Galveston County Justice Administrator was a 

void act without legal authority and is hereby NULLIFIED and set 

aside. Further that the county judge and commissioners court are 

ordered to cease and desist the process of attempting to hire a new 

justice administrator.

A panel of this court denied the petition for mandamus without an opinion 

explaining the ruling, as authorized by Appellate Rule 52.8(d). I agree the petition 

was correctly denied, but because of the unusual circumstances I write separately 

to explain my reasoning.
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Whatever the merits of the relators’ complaints about the ex parte order, they 

have an adequate remedy by appeal. There has been no presentation of a dispute to 

a court, no presentation of evidence, no fact finding, and no application of law to 

facts by a judge to resolve this dispute between the administrative judge and the 

commissioners court. That process is available to resolve the dispute, and an 

appeal is available from the final resolution. E.g., Weber v. Walker, 591 S.W.2d 

559, 561 (Tex. Civ. App.—Dallas 1979, no writ) (cities filed suit asking district 

court to order commissioners court to provide funds for sheriff’s personnel); 

Comm’rs Court of Lubbock Cnty. v. Martin, 471 S.W.2d 100, 103 (Tex. Civ. 

App.—Amarillo 1971, writ ref’d n.r.e.) (declaratory judgment action challenging 

constitutionality of statute regarding appointment and compensation of probation 

personnel); Wichita Cnty. v. Griffin, 284 S.W.2d 253, 254 (Tex. Civ. App.—Fort 

Worth 1955, writ ref’d n.r.e.) (official court reporters filed suit in district court for 

writ of mandamus to compel commissioners court to pay increased salaries as 

ordered by the district courts); see also Vondy v. Comm’rs Court of Uvalde Cnty., 

620 S.W.2d 104, 104–05 (Tex. 1981) (mandamus sought by constable in district 

court to compel commissioners court to set a reasonable salary for constable’s own 

office).

We should not exercise our mandamus jurisdiction in this circumstance 

because the ordinary judicial process is available, and it results in a remedy by 
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appeal. Cf. Eichelberger v. Eichelberger, 582 S.W.2d 395, 400 (Tex. 1979) (citing 

Pope v. Ferguson, 445 S.W.2d 950 (Tex. 1969)).

Michael Massengale

Justice 

The en banc court consists of Chief Justice Radack, and Justices Jennings, Keyes, 

Higley, Bland, Massengale, Brown, Huddle, and Lloyd.

Justice Massengale, joined by Justice Brown, concurring in the denial of en banc 

reconsideration.

Publish. TEX. R. APP. P. 47.2(b).