COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-156-CV

WICHITA COUNTY AND WICHITA APPELLANTS

COUNTY COMMISSIONERS COURT

V.

DARYL LEE BONNIN APPELLEE

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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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OPINION ON REHEARING

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Upon consideration of appellee Daryl Lee Bonnin’s motion for rehearing,

we deny the motion; however, we withdraw our opinion and judgment of June

19, 2008, and substitute the following to make nondispositive clarifications.

Introduction

This is a suit by a Wichita County jailer seeking to enforce all the terms

of a petition related to the sheriff’s department employees’ salaries after voters

approved a ballot that included only portions of the items in the petition.
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Appellants Wichita County and the Wichita County Commissioners Court appeal

the trial court’s grant of appellee’s motion for summary judgment and denial of

appellants’ motion for summary judgment in appellee’s declaratory judgment

suit. In five issues, appellants argue that the trial court erred (1) by failing to

make a predicate finding that appellants abused their discretion before granting

appellee relief, (2) by deciding that the entire petition, including portions not

included on the ballot, should be implemented, (3) by construing section

152.072 of the local government code as authorizing a referendum on issues

other than a one-year minimum salary for each position in the department, (4)

by imposing obligations on appellants that would violate constitutional

prohibitions, and (5) by awarding attorney’s fees to appellee. We reverse the

trial court’s summary judgment in favor of appellee and render summary

judgment in favor of appellants; however, we remand the case to the trial court

for a determination on attorney’s fees.

Background Facts

In 2004, the Wichita County Sheriff’s Department Employees Association

(Association) circulated a petition to increase the minimum salary of each

sheriff’s department employee under local government code section 152.072.

See Tex. Loc. Gov’t Code Ann. § 152.072 (Vernon 2008). In addition to

including a proposed minimum salary, or “start pay,” for each position within
1... For example, a captain had a proposed minimum salary of $36,000;

after one year of service, a captain had a proposed minimum salary of $37,260.

Each year a captain’s minimum salary would increase. A copy of the part of

the petition listing the minimum salaries and annual increases for each position

is attached to this opinion as Exhibit “A.”

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the sheriff’s department, the petition also included a proposed minimum annual

salary for one to six year veterans in each position (i.e., a minimum salary

based not only on the position but also on years of service within that position)

and increases in annual salary for each year in a position, up to six years of

service. In addition, the petition provided that each sheriff’s department 1

employee would be entitled to longevity pay in addition to the proposed

minimum salaries.

After collecting the required signatures, the Association presented the

petition to appellants, who opted to call an election on the petition. The county

judge and county clerk decided that the entire petition—minimum start pay

salaries for each position, minimum annual salaries for years of service within

each position, and longevity pay—should be listed on the ballot. However, the

printer could not fit the entire petition on the ballot. Eventually, appellants

decided to submit the following language on the ballot:

Proposition: Adoption of the Proposed minimum salaries for the

Wichita County Sheriff’s Department, as follows: Chief Deputy,

$40,320; Captain, $36,000; Lieutenant, $33,408; Patrol Sergeant,

$30,792; Patrol Corporal, $28,500; Deputy, $26,700; Jail
2... Before the election, County Judge Woodrow W. Gossom issued a

Statement to the Public explaining that the petition may exceed the scope of

the law, that the Secretary of State provided guidance to the commissioners

court regarding the wording of the ballot, and that adoption of the proposals in

the petition may increase county taxes.

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Sergeant, $29,233.16; Administrative Assistant, $26,500; Records

Supervisor, $26,500; Head Nurse, $30,000; Nurse, $26,500;

Finance Clerk, $26,500; Records Clerk, $21,500; for members of

the Sheriff’s Department at an annual cost of $4,975,495.57,

which may or may not cause an increase in the ad valorem property

tax. 

Thus, the ballot that was submitted to the voters omitted the minimum annual

salary increases based on years of service within each position, as well as the

longevity pay provision. The electorate voted in favor of the salary increases. 2

After the election, a dispute arose regarding whether appellants had to

implement the entire petition, including the items that had been omitted from

the ballot, or only the start pay minimum salaries for each position that were

actually listed on the ballot and voted on by the electorate. Appellants voted

not to adopt all of the provisions of the petition and instead adopted a “hybrid

plan.” The hybrid plan set the salary for all sheriff’s department employees for

the 2004-2005 year at either the start pay for each position as specified in the

ballot or the salary already established by the commissioners court’s 2004-

2005 budget, whichever was greater.
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In February 2005, appellee, a jailer with the sheriff’s department, sued

appellants, seeking a declaratory judgment that appellants had to implement the

entire petition under local government code section 152.072. Appellants filed

a plea to the jurisdiction, which the trial court denied. This court affirmed the

trial court’s order denying appellants’ plea to the jurisdiction. See Wichita

County v. Bonnin, 182 S.W.3d 415, 422 (Tex. App.—Fort Worth 2005, pet.

denied).

Thereafter, appellants filed their original answer in the suit, and both

parties filed motions for summary judgment. The trial court granted appellee’s

motion for summary judgment, denied appellants’ motion for summary

judgment, rendered a judgment declaring that section 152.072 required

appellants to implement all of the provisions of the petition, and awarded

appellee attorney’s fees.

Standard of Review

When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both

parties’ summary judgment evidence and determine all questions presented.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The

reviewing court should render the judgment that the trial court should have

rendered. Id.
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A plaintiff is entitled to summary judgment on a cause of action if it

conclusively proves all essential elements of the claim. See Tex. R. Civ. P.

166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A

defendant who conclusively negates at least one essential element of a cause

of action is entitled to summary judgment on that claim. IHS Cedars Treatment

Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); see

Tex. R. Civ. P. 166a(b), (c).

When reviewing a summary judgment, we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor. Mason, 143 S.W.3d at 798.

Questions of law are appropriate matters for summary judgment.

Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Westchester

Fire Ins. Co. v. Admiral Ins. Co., 152 S.W.3d 172, 178 (Tex. App.—Fort Worth

2004, pet. denied) (op. on reh’g).

Authority of the Commissioners Court

The Texas constitution establishes the commissioners court as a county’s

principal governing body. Tex. Const. art. V, § 18; Comm’rs Court of Titus

County v. Agan, 940 S.W.2d 77, 79 (Tex. 1997); Wichita County, 182 S.W.3d

at 419–20. The powers and duties of the commissioners court includes

aspects of legislative, executive, administrative, and judicial functions. Avery
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v. Midland County, 390 U.S. 474, 482, 88 S. Ct. 1114, 1119 (1968); Agan,

940 S.W.2d at 79; Wichita County, 182 S.W.3d at 420. In the exercise of its

powers and jurisdiction over county business, the commissioners court has

implied authority to exercise broad discretion to accomplish the purposes

intended. Wichita County, 182 S.W.3d at 420.

The Texas constitution vests appellate jurisdiction and general supervisory

control over a county commissioners court with the district court subject to

such exceptions and under such regulations as the law may prescribe. Id.; see

also Tex. Const. art. V, § 8; Agan, 940 S.W.2d at 79. With a few narrow

exceptions, the legislature has not prescribed procedures for the district court’s

exercise of this appellate jurisdiction or supervisory control. Agan, 940 S.W.2d

at 79; Wichita County, 182 S.W.3d at 420. The enabling legislation

empowering the district court repeats the constitution’s terms. Tex. Gov’t

Code Ann. § 24.020 (Vernon 2004); Agan, 940 S.W.2d at 79; Wichita County,

182 S.W.3d at 420.

Case law defines the scope of the district court’s jurisdiction. Agan, 940

S.W.2d at 80; Wichita County, 182 S.W.3d at 420. A party can invoke the

district court’s constitutional supervisory control over a commissioners court

judgment only when the commissioners court acts beyond its jurisdiction or
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clearly abuses the discretion conferred upon the commissioners court by law.

Agan, 940 S.W.2d at 80; Wichita County, 182 S.W.3d at 420.

If the commissioners court acts illegally, unreasonably, or arbitrarily, a

district court may so adjudge. Agan, 940 S.W.2d at 80; Wichita County, 182

S.W.3d at 420. However, in reviewing a commissioners court’s actions for

abuse of discretion, the district court has no right to substitute its judgment and

discretion for that of the commissioners court. Agan, 940 S.W.2d at 80;

Wichita County, 182 S.W.3d at 420. The district court may order the

commissioners court to exercise its discretion but cannot tell the commissioners

what decision to make. Agan, 940 S.W.2d at 80; Wichita County, 182 S.W.3d

at 420. Once the commissioners court exercises its discretion, the district

court may review the order for abuse of discretion. Agan, 940 S.W.2d at 80;

Wichita County, 182 S.W.3d at 420.

Local Government Code Section 152.072

Section 152.072(a) of the local government code authorizes the qualified

voters of a county with a population greater than 25,000 to “petition the

commissioners court of the county to increase the minimum salary of each

member of the sheriff’s department.” Tex. Loc. Gov’t Code Ann. §

152.072(a); Wichita County, 182 S.W.3d at 417. The petition must
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(1) state the amount of the proposed minimum salary for each rank,

pay grade, or classification; 

(2) state the effective date of the proposed salary increase; 

(3) designate five qualified voters to act as a committee of

petitioners authorized to negotiate with the commissioners court

under Subsection (g); and

(4) be signed by a number of qualified voters equal to at least 25

percent of the number of voters who voted in the most recent

countywide election for county officers.

Tex. Loc. Gov’t Code Ann. § 152.072(b); Wichita County, 182 S.W.3d at 417.

Once a petition has been filed, the commissioners court shall either

(1) adopt the proposed minimum salary stated in the petition;

(2) offer an alternative minimum salary proposal under Subsection

(g); or

(3) call an election on the proposed minimum salary as provided by

this section.

Tex. Loc. Gov’t Code Ann. § 152.072(c); Wichita County, 182 S.W.3d at 417.

“If the commissioners court chooses to call an election, the only issue that may

be submitted regarding the salaries of members of the sheriff’s department is

whether the proposed minimum salary should be adopted.” Tex. Loc. Gov’t

Code Ann. § 152.072(d); Wichita County, 182 S.W.3d at 417–18. If the

commissioners court opts to hold an election, it “shall be held on the first

authorized uniform election date under Chapter 41, Election Code: (1) that
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occurs after the 65 day after the date the petition was filed; and (2) on which th

an election is scheduled to be held throughout the county for other purposes.”

Tex. Loc. Gov’t Code Ann. § 152.072(d); Wichita County, 182 S.W.3d at

417–18. The ballot form for the election shall be written as follows:

Adoption of the proposed minimum salaries of __________ for

members of the Sheriff’s Department at an annual cost of ,

which may or may not cause an increase in the county ad valorem

tax.

Tex. Loc. Gov’t Code Ann. § 152.072(e); Wichita County, 182 S.W.3d at 418.

“The proposed salary for each rank, pay grade, or classification as stated in the

petition and the total annual cost of the increases must be inserted in the blank

spaces.” Tex. Loc. Gov’t Code Ann. § 152.072(e); Wichita County, 182

S.W.3d at 418. If a majority of the votes cast at the election favor the

adoption of the proposed minimum salary, the minimum salary shall take effect

on or before the date specified in the petition as the effective date. Tex. Loc.

Gov’t Code Ann. § 152.072(f); Wichita County, 182 S.W.3d at 418.

Statutory Construction of Section 152.072

In their second and third issues, which we will address first because they

are dispositive, appellants argue that the trial court erred by declaring that

appellants should implement the additional provisions of the petition that were

not included on the abbreviated version of the petition used on the ballot (i.e.,
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all matters other than the start pay salaries for each position) and by

determining that section 152.072 authorized a referendum on issues other than

the proposed minimum salary for each position within the sheriff’s department

(i.e., each rank or classification of employee). Appellee, however, contends

that appellants committed an illegal act by failing to implement the entire

petition because the voters were entitled to consider the petition as a

whole—not just the minimum start pay salaries set forth on the ballot—and did

so, and because the term “minimum salary” as used in section 152.072

includes not just one minimum salary for each rank, grade, or classification, but

also step increases in minimum salary within each rank, grade, or classification

depending on years of service.

Applicable Law

This is an issue of first impression requiring us to construe section

152.072 of the Texas Local Government Code. Statutory construction is a

legal question that we review de novo, ascertaining and giving effect to the

legislature’s intent as expressed by the plain and common meaning of the

statute’s words. Tex. Gov’t Code Ann. § 312.002 (Vernon 2005); F.F.P.

Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007); Tex.

Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004);

In re C.A.P., Jr., 233 S.W.3d 896, 900 (Tex. App.—Fort Worth 2007, no.
12

pet.). We begin with the statute’s plain language because we assume that the

legislature tried to say what it meant and, thus, that its words are the surest

guide to its intent. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996

S.W.2d 864, 865–66 (Tex. 1999); C.A.P., 233 S.W.3d at 900. In ascertaining

legislative intent, we do not confine our review to isolated statutory words,

phrases, or clauses, but we instead examine the entire act. Meritor Auto., Inc.

v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001); C.A.P., 233 S.W.3d at

900; Rodgers v. Comm’n for Lawyer Discipline, 151 S.W.3d 602, 614 (Tex.

App.—Fort Worth 2004, pet. denied). We may also consider, among other

things, the statute’s objectives, common law, former law, similar provisions,

and the consequences of the statutory construction. Tex. Gov’t Code Ann.

§ 311.023(1)–(7) (Vernon 2005); C.A.P., 233 S.W.3d at 900.

It is a well-settled rule of statutory construction that every word of a

statute must be presumed to have been used for a purpose. See Quick v. City

of Austin, 7 S.W.3d 109, 123 (Tex. 1998); Laidlaw Waste Sys., Inc. v. City of

Wilmer, 904 S.W.2d 656, 659 (Tex. 1995); C.A.P., 233 S.W.3d at 900.

Likewise, every word excluded from a statute must also be presumed to have

been excluded for a purpose. Quick, 7 S.W.3d at 123; Laidlaw Waste, 904

S.W.2d at 659; C.A.P., 233 S.W.3d at 900.
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Further, it is well established in Texas that when provisions of the same

statute may be in conflict, courts should harmonize them to give effect to both

by assigning each a meaning that will permit each to stand. See Helena Chem.

Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); C.A.P., 233 S.W.3d at 900;

Valero Transmission Co. v. Hays Consol. ISD, 704 S.W.2d 857, 864 (Tex.

App.—Austin 1985, writ ref’d n.r.e.). A court should not assign a meaning to

a statutory provision that would be inconsistent with other provisions of the

same act, even though it might be susceptible to such a construction standing

alone. See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.

2002); Clint ISD v. Cash Invs., Inc., 970 S.W.2d 535, 539 (Tex. 1998);

C.A.P., 233 S.W.3d at 900. Further, when a general statutory provision

conflicts with a more specific provision, “the provisions shall be construed, if

possible, so that effect is given to both.” Tex. Gov’t Code Ann. § 311.026(a)

(Vernon 2005); C.A.P., 233 S.W.3d at 900. If the conflict between a general

provision and a more specific provision is irreconcilable, “the special or local

provision prevails as an exception to the general provision, unless the general

provision is the later enactment and the manifest intent is that the general

provision prevail.” Tex. Gov’t Code Ann. § 311.026(b); City of Dallas v.

Mitchell, 870 S.W.2d 21, 22 (Tex. 1994); C.A.P., 233 S.W.3d at 900.
14

When a statute is clear and unambiguous, we “should give the statute its

common meaning.” St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503,

505 (Tex. 1997); Teague v. City of Jacksboro, 190 S.W.3d 813, 817 (Tex.

App.—Fort Worth 2006, pet. denied). When language in a statute is

unambiguous, we will seek the intent of the legislature as found in the plain and

common meaning of the words and terms used. Agbor, 952 S.W.2d at 505;

Teague, 190 S.W.3d at 817. We are to interpret words and phrases in context

and construe them according to rules of grammar and common usage. Tex.

Gov’t Code Ann. § 311.011 (Vernon 2005). We do not need to resort to rules

of construction or extrinsic aids to construe a statute that is clear and

unambiguous. Agbor, 952 S.W.2d at 505; Cail v. Serv. Motors, Inc., 660

S.W.2d 814, 815 (Tex. 1983); Teague, 190 S.W.3d at 817. When a statute

fails to define a term, we apply and use its plain meaning. Tex. Gov’t Code

Ann. § 312.002 (instructing appellate court to use words’ ordinary meanings);

Teague, 190 S.W.3d at 817. We should not adopt a construction that would

render a law or provision meaningless. Teague, 190 S.W.3d at 817.

Analysis

Appellants contend that section 152.072 allows voters to consider only

the issue of whether one proposed minimum salary for each position within the

department should be adopted. Appellee argues that the “proposed minimum
3... In his motion for rehearing, appellee also disagrees with this court’s

determination that “step salary increases that apply over several years” are not

included within the term “proposed minimum salary”; however, for purposes of

rehearing, appellee asks this court “to consider the petition’s minimum proposed

salaries determined by position and years of service.”

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salary” language of the statute does not limit what can be submitted to the

voters to one proposed minimum salary for each position and, furthermore,

does not prohibit additional issues other than a proposed minimum salary from

being considered. Additionally, on rehearing, appellee urges this court to

construe the term “proposed minimum salary” as used in the statute to mean

not only a minimum salary for each position within the department (i.e., the

start pay listed for each position in the petition) but also increased annual

minimum salaries within each position based on years of service (i.e., in the

terms used in the statute, proposed minimum salaries within each rank, grade,

or classification).3

As previously set forth, subsection (d) provides that “if the commissioners

court chooses to call an election, the only issue that may be submitted

regarding the salaries . . . of the sheriff’s department is whether the proposed

minimum salary should be adopted.” Tex. Loc. Gov’t Code Ann. § 152.072(d)

(emphasis added). Here, the plain language of the statute provides that “the

only issue” that the voters can consider is “whether the proposed minimum
16

salary should be adopted.” Id. If the legislature had intended for other issues

regarding the salaries of members of the sheriff’s department to be determined

by the voters of the county, it could have expressly designated those issues in

the statute. However, in this case, the legislature decided that the only issue

that could be submitted to the voters of Wichita County was whether the

proposed minimum salary should be adopted.

Moreover, section 152.072(e) sets forth the precise language that must

be used on the ballot. Id. § 152.072(e) (requiring ballot to be printed to provide

for voting for or against the proposition as follows: “Adoption of the proposed

minimum salaries of __________ for members of the Sheriff’s Department at an

annual cost of __________, which may or may not cause an increase in the

county ad valorem tax.”). This language refers only to the adoption of a

proposed minimum salary. By providing exact ballot language, the statute

implicitly excludes other issues from being submitted on the ballot. See id.;

Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 273 (Tex. 1999)

(explaining doctrine of expressio unius est exclusio alterius, the maxim of one

implies the exclusion of others). Thus, our interpretation of section 152.072

is consistent with the limitations of the statute.

Appellee, however, argues that the language of the statute as a whole

does not impose such limitations. For example, subsection (b) states, “A
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petition under this section must . . . ,“ and then it lists the requirements for a

valid petition. Tex. Loc. Gov’t Code Ann. § 152.072(b). Appellee contends

that the term “must” in subsection (b) creates a condition precedent, thereby

allowing other provisions to be included in the petition as long as the specified

requirements in subsection (b) are met. Thus, according to appellee, so long

as the petition includes the required items in subsection (b), all items included

in the petition and voted on by the electorate must be implemented by the

commissioner’s court in accordance with subsection (f). But this argument is

inconsistent with the other plain language of the statute we have noted above,

which specifies that the only salary-related issue that may be submitted to the

voters is whether the proposed minimum salary for each rank, grade, or

classification should be adopted. Id. § 152.072(d).

Additionally, appellee argues that section 152.072 conflicts with section

152.011, which states that the “commissioners court of a county shall set the

amount of the compensation . . . for county employees.” Id. § 152.011

(Vernon 2008). According to appellee, because section 152.072 grants the

public “a right to get involved” in setting salaries for sheriff’s department

employees, “control over salaries of sheriff’s department employees can be

taken out of the hands of the commissioner’s court.” Applying the principles

of statutory construction to section 152.072 as a whole, we conclude that
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section 152.011 can be harmonized with section 152.072 to give effect to all

sections. While section 152.072 appears to be in conflict with section

152.011 because section 152.011 vests the commissioners court with the

responsibility of establishing county employees’ salaries, section 152.072

merely provides voters with the ability to petition for, and vote on, a narrow

issue with respect to sheriff’s department employees’ salaries—whether there

should be an increase in the proposed minimum salary for each rank, grade, or

classification that has already been set by the commissioners court. See Tex.

Gov’t Code Ann. § 311.026 (stating that provisions shall be construed, if

possible, so that effect is given to both). Indeed, section 152.072(c)–(d)

preserves the discretion of the commissioners court regarding the salary issue,

providing that it is up to that body to decide whether to implement such a

petition, offer an alternative to the petition, or call an election on the proposed

minimum salary in the petition. Tex. Loc. Gov’t Code Ann. § 152.072(c)–(d).

After interpreting section 152.072 in accordance with well-established

principles of statutory construction and giving full effect to the extent possible

to all sections, we conclude and hold that the language of section 152.072(d)

mandates that the only issue that may be submitted to voters regarding the

salaries of employees of the sheriff’s department is whether the proposed

minimum salary for each rank, grade, or classification should be adopted,
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precluding the submission of any other salary-related issue to the voters. Tex.

Loc. Gov’t Code Ann. § 152.072(d).

We also disagree with appellee’s proposed interpretation of the meaning

of “proposed minimum salary” as used in section 152.072. Throughout section

152.072, the term “proposed minimum salary” is used as opposed to “proposed

minimum salaries.” The only exception to this usage is in subsection (e)

regarding the ballot format; because this language is meant to include a list of

proposed minimum salaries for each position included in the applicable petition,

it makes sense that “salaries” should be in the plural in this subsection.

However, we conclude that the legislature’s use of the singular, “proposed

minimum salary for each rank, grade, or classification” is significant.

According to appellee’s construction, “proposed minimum salary” can

include an annual minimum salary based not only on position, but also years of

service within a position, because section 152.072 provides for a mechanism

to “increase the minimum salary of each member of the sheriff’s department.”

Id. § 152.072(a). Appellee contends that this means the minimum salary can

be different for each employee within a position based on years of service. But

because of the legislature’s careful use of the singular term, “proposed

minimum salary,” and its use of the connector “or” between rank, grade, or

classification, we conclude that the more correct interpretation is that the
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legislature intended only for there to be one proposed minimum salary, a floor,

within each position for which a minimum salary is proposed, i.e., one minimum

salary for each member of the sheriff’s department within each rank, grade, or

classification. This may not increase each sheriff’s department employee’s

minimum salary from what the employee had previously been earning (because

the commissioners court, in its discretion, may have set that employee’s salary

higher than the existing minimum pay for that position), but it will provide an

increased minimum salary, or floor, for that position below which that

employee’s salary cannot fall. We conclude and hold that this interpretation of

“proposed minimum salary” most accurately construes the legislature’s

intention in enacting section 152.072.

Moreover, we further conclude that the term “proposed minimum salary”

does not include longevity pay that is either statutorily authorized or mandated

or which the commissioners court decides, in its discretion, to provide. Section

152.074 of the local government code provides some guidance. It provides

that in a county of 150,000 or more, the commissioners court shall provide

each commissioned deputy of the sheriff’s department with longevity pay “in

addition to the deputy’s regular compensation.” Id. § 152.074(a). This is

some indication that the legislature considers such longevity pay to be in

addition to regular compensation and, therefore, in addition to a proposed
4... In his motion for rehearing, appellee cites In re Link, 45 S.W.3d 149

(Tex. App.—Tyler 2000, no pet.), Arenas v. Bd. of Comm’rs of the City of

21

minimum salary. Accordingly, we conclude and hold that the term, “proposed

minimum salary for each rank, pay grade, or classification,” as used in section

152.072 does not include any component of salary other than one minimum

salary, excluding additional longevity pay, for each classification of employee

within the department.

Here, the Association’s petition proposed a minimum salary for each

member of the sheriff’s department based on years of service within each

position. While section 152.072 provides voters with the ability to establish

one minimum salary that is guaranteed to members of the sheriff’s department

within each position, the statute does not enable voters to create yearly

automatic salary increases under the guise of minimum salaries within each

rank, pay grade, or classification based on years of service.

Because the only issue that the voters of a county are authorized to

consider under section 152.072 is whether the proposed minimum salary

should be adopted and because the proposed minium salary does not include

varying minimum salaries based on years of service within a single position or

longevity pay, we hold that appellants did not abuse their discretion in refusing

to implement provisions of the petition not authorized by section 152.072.4
McAllen, 841 S.W.2d 957 (Tex. App.—Corpus Christi 1992, no writ), and In

re Balsamo, No. 09-99-00442-CV, 1999 WL 777693 (Tex. App.—Beaumont

Sept. 24, 1999, no pet.) (not designated for publication), for the proposition

that appellants were required to submit the entire petition on the ballot and had

no discretion to limit what appeared on the ballot. But these cases involve

county commissioners’ and cities’ refusing to call elections on petitions based

upon determinations by the commissioners and cities that the petitions

contained invalid items. Link, 45 S.W.3d at 151; Arenas, 841 S.W.2d at

958–59; Balsamo, 1999 WL 777693, at *1. Here, appellants agreed to hold

an election on the petition; appellee failed to bring a pre-election petition for

writ of mandamus challenging the form of the ballot to be submitted to the

voters. Thus, the cases cited by appellee are distinguishable.

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Thus, we further hold that the trial court erred in granting appellee’s motion for

summary judgment, denying appellants’ motion for summary judgment, and

entering a declaratory judgment that appellants implement the additional

provisions contained in the petition. Therefore, we sustain appellants’ second

and third issues. In light of our decision as to issues two and three, we need

not address appellants’ first or fourth issues. See Tex. R. App. P. 47.1; Nat’l

Sports & Spirit, Inc. v. Univ. of N. Tex., 117 S.W.3d 76, 84 (Tex. App.—Fort

Worth 2003, no pet.).

Attorney’s Fees

In their fifth issue, appellants claim that the trial court erred by awarding

attorney’s fees to appellee. Because we have determined that the trial court

erred by rendering a declaratory judgment for appellee, we reverse the trial

court’s award of trial and appellate attorney’s fees to appellee and remand this
5... Whether to award attorney’s fees, and in what amount, is a

discretionary matter for the trial court, with few restrictions. See Bocquet v.

Herring, 972 S.W.2d 19, 20 (Tex. 1998); NP Anderson Cotton Exch., L.P. v.

Potter, 230 S.W.3d 457, 466 (Tex. App.—Fort Worth 2007, no pet.). Under

the Texas Declaratory Judgment Act, a court “may award attorney’s fees as

are equitable and just.” Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon

1997); NP Anderson, 230 S.W.3d at 466.

23

issue to the trial court to reconsider the parties’ claims for attorney’s fees.5

See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997); Allstate Ins.

Co. v. Hallman, 159 S.W.3d 640, 643 (Tex. 2005); Ayers v. Mitchell, 167

S.W.3d 924, 932 (Tex. App.—Texarkana 2005, no pet.).

Conclusion

Having sustained appellants’ two dispositive issues, we reverse the

summary judgment in favor of appellee and render summary judgment in favor

of appellants. We reverse the award of attorney’s fees to appellee and remand

that issue to the trial court to reconsider the parties’ claims for attorney’s fees.

TERRIE LIVINGSTON

JUSTICE

PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.

DELIVERED: October 2, 2008
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Exhibit “A”