NO. 07-01-0511 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A AUGUST 8, 2002

______________________________ ARTH UR WARE, I NDIV IDUA LLY A ND AS PO TTER C OUNTY JUDGE, JOHN ST RADLEY, INDIVIDU ALLY AND AS POTTER COUNTY COMMISS IONER, MANNY PEREZ-VILLASENOR, INDIVIDUALLY AND ASPOTTER COUNTY COMMISS IONER, STRICKLAND W ATKINS, INDI VIDUALLY AND AS POTT ER COUNTY COMMISSIONER, IRIS SANDERS LAW RENCE, INDIVIDUALL Y AND AS POTTER COUNT Y COMMISSIONER AND POTTE R COU NTY, T EXAS, A PPE LLANT S V. TERRY MILLER, POT TER COUNT Y CONSTABLE,

PRECINCT 2, APPELLEE

_________________________________ FROM THE 108 TH DISTRICT COURT OF POTTER COUN TY; NO. 88,221-E; H ONORAB LE WELDON KIRK, J UDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ.2

Appellants Potter County, Arthur Ware, both in his indivi dual capacity and official capacity as Potter C ounty Judge, and eac h of the Potter Coun tyCom m iss ione rs, alsoin the ir individual and off icial capac ities, bring this interl ocutory appeal from the denial of the ir pleas to the j urisdiction of the trial court and also f rom t he den ial of their motion seeking sum mary

judgm ent.
Facts Appellee Terry

Miller (Miller) is a form er constable for Po tte r Co unt

y P rec inct

2. His term of off

ice began January

1, 1999, and ended De cem ber 31, 2000. At the time M iller
assum ed office, Potter Count y paid each of its constables $227 per yea rin salary and provided em ployment be nefits, including hospitali zation insur ance. W hile M iller w as in office, Potter County

eliminated the salary and em ployment be nefits for all its constabl es. On Decem ber 4, 2000, pursuant tosection 89.004 of the Governm ent Code, M iller noti fied Judge Ware that he sought additional compensation. Litigation History On Decem ber

20, 200 0, M iller f

iled s uit against Potter County

as well as the County Judge and each mem ber of the Potter Count y Comm ission er’s Court. The judge and each
com missioner

w ere sue d in both their individual and offici al capacities. The relief Miller soughtwas, int er

alia , a declaration that the salary he received du ring hi s term of office
wasunreasonable and the Potter C ounty Com missioner’s C ourt had a m inisterial duty to3

seta reasonable salary for the constable’s of fice. Miller also sought a writ of m andam us directing the com missioners to s et a reasonable salary and, based on t h at am ount, an
awa rd of dam ages for the difference betw een the“re aso nab le salary” and the salary he had actuall y been paid. He also sought exemplary damages and attorney fee s. After Miller’s term expired, Potter County filed an answer containing a plea to the distri ctcourt’s j urisdiction all eging that Millerlacked standing to bring the suit becaus e his term had expired. It also filed spe cial excep tion s toMill er’ s ple adin g an d a coun ter claim seeking declarato ry j udgm ent. I n its answer, the Co unty as sert ed several aff irmative defenses, includ ing sovere ign immunity, legislative im m unity, of ficial imm unity, w

aiver, laches, and unclean hands. The County also sought to recover atto rneyfees. In response to concerns expressed by the trial court, each of the individual defenda nts filed an swers in conform ity w ith the C ounty’ s answ er.
In May 2001, M iller fi led a m otio n se ekin g pa rtia l sum m ary j udg m ent

on h is declarato ryrelief claims and his m andam us petition. In J uly 2 001 , ap pella ntsfiled the ir
own mo tion seeking summ ary judgment dismissing the suit beca use the trial court had no jurisdiction, Mi ll er la cke d st an di ng to br in g t he sui t, an d a pp el la nt s we re entitled to sovereign and legi slati ve imm unity.
On Decem ber 7, 2001, thetria l cou rt h eld a hearing o n both m otions fo r sum m ary judgm ent as well as appellants’ plea to the jurisdiction. On Decem ber 27, it denied both appell ants’ plea to the jurisdi ct ion and th eir m otion for s um m ary j udgm ent. Thecourt4

granted Mill er’ s m otio n fo r pa rtia l sum m ary j udg m ent , de clar ing t hat he w as t he d uly qualified co ns ta bl e f ro m Ja nu ar y 1 , 1 99 9, th ro ug h D ec emb er 31, 2000, that the
com m issionershad a m inisterial du ty to set a reasonabl e salary for the constable ’s position and failed to do so. The trial court also granted Miller’s req ue st for a w rit of manda mus

and dire cte d th e co m m is sioner’ s court to set a reasonable salary “for the Plaintiff (Miller) as Constable, Precinct 2, P otter County for fiscal years 199 8-1999, 1999- 2000, and 200 0-2001 (J an uary 1, 1999 through December 31, 2000), for a total of 24 months, including all employee benefits enj oyed by elected officials of Potter County for the tie period referred to above.” Appellants brin g th is in ter locu tor y ap pea l pur

sua nt to se ctio n 51 .01 4(a ) of theCiv il Practice & Rem edies Code. That statute authorizes appeals of interlocutory orders t hat deny m otions for sum mary judgm ent based on an asse rtion of imm unity byan individual officer or em ployee of the state or a political subdivision, or which d eny a plea to the jurisdiction of a governm ental unit.
Jurisdiction
Because of its nature, we m ust first address the ques tion of our jurisdiction over this app eal, as w ell as the parties to the appeal. It is well established that in an interlocuto ry app eal, we m ay only a d dress those m atters for w hich such an appeal is perm itted by section 51.014. We may not consider other grounds or is su es ra is ed be lo w, even if they may be potentially dispositive of the case. See Boozi er v. Hambrick , 846 S.W.2d 593, 5961 The predece ssor tocurrent Rule 7.2 (a), for mer R ule 9(c), only addressed suits brought agai nst officers i n their offi cial cap acity. 5 (Tex.App.--H ouston [1 stDi st .] 19 93 , n o wr it ). Our re vi ew, then, mu st focus on the denial of app ellan ts’ pleato t he j uris dict ion a nd t he d enia l of the ir mo tion for sum mary

judgm ent. We mu st also determ ine if Miller i s a proper party to pursue this appeal. Texas Rule of Appella te Procedure 7.2( a) provid es:
W hen a public officer is a party in an official capacity to an appeal . . . and if that person ceasesto hold office before the appeal . . . is finally disposed of, th e p ub l i c o ff i ce r’ s s uc ce ss or i s a ut oma tical ly su bst ituted a s a par ty i f appropriate. 1
Al though Miller’s petition does not specifically all ege the capacity in w hich h e broughtthe suit, it lists him as “TERR Y MILLE R, Potter Co unty Constable, Prec inct 2, Plaintiff.” Hissup plem ental pe titio n, f iled a fte r histerm of

office had expired, contained the
sa me descripti on, which could be considere d as an attempt to act in Mill er’s off ic ial capacity. Howe ver, citing authority discussing misnom ers in pl eadings, appellants argue thatwe are not

bound by designations in a pleading bu t that we should look to its substance. See Bri

stol-Meyers Corp. v

. Abel , 997 S.W.2d 598, 601 (Tex. 1999) (m isnomer of motion); Tex. R. Ci v. P. 71 (m isnomer of p leadings to be ig no re d) . As we di scu ss b el ow, the relief actually sought in the petition was a perso nal recov ery of a ctual and exe m plary damages. We agree that th e principles un derlying therule concerning m isnom er are applicable, hold that Miller’s claims are i ndiv idua l in nature and thus, Rule 7.2(a) is not applicable.2 We recognize the apparent conflict in the holdings of these casesthat the

com missioner’s court had a “m inisterial ” dutyto exercise their discretion and the holding in Downing v. Brown , 935 S.W.2d 112 (Tex. 1996), that “m inisterial acts a re thos e [w ]here the law prescribes and defines the duty to be perform ed with such p recision and certainty as to leave nothing to the exerc ise of disc retion or j udgm ent.” Id. at 114 (quoting City of Lancaster v. Chambe rs , 883 S.W.2d 650, 654 (Tex. 1994)). Resolution of this apparent conflict is not necessary to the disposition of this case. 6 A brief overview of the app licable constitut ion al provisions, statutes, and leading
cases will be helpful in understanding the issues we m ust decide, including the question of ou r ju ris diction. Article XVI, section 61 of t he Texas C onstitution provides that constables are to be com pensated by a salary rather than on a fee basis. See also Local Gov’tCode A nn. § 15 2.011 (Vernon 19 99) (t racking constitutional duty to set
com pensation for county and precinct off icers). In V

ondy v. Commi

ssioners Court of UvaldeCounty, 620 S.W .2d 104 (Tex. 1981), ou r supreme court held the co nstituti onal provi sion imposes a m andatory m inisterial duty on a com missioner’s court to set a rea son ablesalary. Id . at108-09. However, the m anner by wh ich that duty is carried out is left to the discretion of the com missioner’s court. Ector County v. Stri nger, 843 S.W.2d 477, 479(Tex . 1992). 2
The process for se tting the salary of elected officers is prescribed in section 153.013 of the Local Governm ent Code. That proces s is part of the annual budget-setting process and any salar y increases must be preceded by publication in a newspaper. See Op. Tex. A

tt’y Gen. No. JM-839 (1988). The only re cognized excepti on to this pro cess arises from the district court’s general supervisory control over com missioners’ courts by virtue of article V, section 8 of the Tex as Constitution. See, e.g., S antoya v. Pereda , No.7

04-00-082 5-CV(Tex.App. --San Antonio January 16, 2002, pet. filed) (Ang lini dissenting). If a com missione r’s c ourt abuses its discretion by failing to set a reasonable salary, the proper me thod for a di strict court to com pel performance of that duty is by a writ of mandam us. Vondy , 820 S.W.2d at 109. The district court may not determ ine what a
reas ona ble sala ry is, it may only revi ew the am ount determined by the commissioner’s court. Stringer, 843 S.W.2d at 479. Thi s rule applies with equal force when the official seeks to recover pas t salary. Id. at 480. Standing Appellants’ first issue concerns the denial of their plea to the jurisdicti on because of Mill er ’s l ac k ofsta nd in g t o p ur su e t he li ti ga ti on . St an di ng is a co mpon en t o f su bje c t mat ter jurisdiction and is properly raised by a p lea to the jurisdiction. Texas A ss’n of Business v. Texas Ai r Control Boa rd , 8 52 S.W .2 d 4 40 , 4 43 (T ex. 1993). An interloc utory appeal from the trial court’s denial of Potter County’ s pl ea to th e j uris dict ion is clea rly
w ithin the purview of s ubsection (a) (8) of section 51.0 14. Likewise, sui ts against governm ental age ntsin t heir official capacities are, in fact, claims against t he governm ent. Vincent v. West Texas State University, 895 S.W.2d 469, 472 (Tex.App.--A marillo 1995,
no writ)

. Therefore, the denial of the pleas to the jurisdiction asserted by the county

judge and the com missioners in their official capacities are proper issues for consideration on interlocuto ryappeal. However, the denial of the challenges to Miller’s standing m ade by those parties in their indivi dual capacities is not somet hing we m ay review in t hi s8

interlocuto ryappeal. W e m ay, howe ver, review the de nial of th ei r i mmuni ty cl ai ms. T ex. Civ. P rac. &

Rem . Code § 51.014 (a)(5).
The rules pertain t o standing r equire that a plaintiff have a personal stake in an existing controversy befor e he may seek j udi cial redress as a plaintiff. In re M.C.R. , 55 S.W.3d 104, 10 7 (Tex .App. --San A ntonio 200 1, no w rit). An opini on rendered in a case broughtby a party who does not have standing is an advisory one beca use rather than remedy ing an actual or imm inent har m, the j udgment only addresses a hyp othetical injury. Texas A ss’n of Bus

iness, 852 S.W.2d at 444. Appellants recognize there are s o m e ca sestha t were not fina lly c onc lude d un til after the plaintiff’s term of office had ended. For ex ample, Vondy

v. Commi

ssi oners Court , 714 S.W.2d 417 (Tex.App.--San Antonio 1981, w rit ref’d n.r.e.) (Vondy II), w as decided after Vondy I , supra , was remanded from the suprem e court, and after t he plaintiff’ s term of office had ended. Douthit v. Ector County, 74 0 S .W.2d 1 6 (T ex .A pp. --E l Pa so 1 987 , w rit denied), also involved a claim for additional compens ation ma de bya c ons tab le af ter his term had ended. The El Pas o court of appeals held the plaintiff was ent itled to a writ of mand amus. Id . at 18. Ector County v. Stri nger, 843 S.W .2d 477 (Tex. 1992) was a consolidated appeal from t wo actionsbrought by Ecto r County constables. The firs t su it
wasbrought by

Martin Stringer after his termof office to recover additional compensation. Id. at 478. In the second, then current constable Joe Hill sought the sam e relief. Id. Both plaintiffs asked the district court to determ ine a reasonable salary and to award da mages9

for their respective term s of service based upon t hat am ount. Noting that a w rit of manda mus

was not sought, the court held that the com missioner’s court was the only entity thatcould seta p recinct officer’s salary, subj ect to review f or an abuse of its discretion. The court specifically noted thatbecause the question w as not presented, it expres sed no
o pinion as to w hether m andam us wasavailable to order a comm issioner’s cou rt t o determ ine a reasonable past salary. Id. at 479, n.3. Although non e of thes e cases ex pressly addressed the question of s tanding, by inferen ce their discussion would support a conc lusion that a form er constable has standing to prosecut e clai msto recover back pay . Appellants, however, argue that these cases were decided before th e opinion in Texas Ass’n of Business v. Texas

Ai r Control Board, which overruled Te xas In du stria l T ra ff ic League v. Rai

lroad Commi

ssion , 633 S.W.2d 821 (T ex. 1982), and declared that standing is a com ponent of subj ect m atter jurisdiction and may not be waived. Appellants ask us to as sum e that the q ue stion of standing wasnot raised by the defendants i n each of the three constab le cases and was therefore waived. However, we do not find the om ission of a specific discussion of standing in those cases leads to that conclusion. Rather, perusal of the courts’ discuss ion in those cases supports the conclusion that those courts v iewed the claim s for back pay as personal to the form er constables and the use of m andam us by those p laintiff s did not alte r th e na tur

e of the ir claims, but

w as r equ ired by thecon stit utio nal limitation to the com missioners’ courts of
com pensation determ inations. The standing challenges of appellants are overruled.10

In their second issue, appellants ask us to determine if the trial co urt err ed in denying their plea to the jurisdiction based on sovereign imm unity. Unless waived, that doctrine pro tec

ts t he S tate an d its

sub divis ions from both suit and li abil ity for damages. General Services Comm’n v. Little-Tex Insu lationCo. Inc. , 39 S .W.3d 591 (Tex . 2001). Imm unity from suit protects entities within the ambit of t he doctrine from the burden of fighting cl ai ms against them

. Fe de ra l Sig n v. Te x. So. Univ. , 951 S .W.2d 401 (Tex . 1997). Imm unity fr om l i ab i l i ty pr ot ec ts fr om ju dg men ts , e ve n i f i mmun i ty fr om s uit h as been waived. Id. Sovereign imm unity may be waived in several ways. It m ay be waived by legi slati ve action through a sta tute or by res olut ion g ran ting per m iss ion to filesuit in a spe cifi ccase. Texas Department

of Transportati

on v. Jones , 8 S.W.3d 636, 638 (Tex. 1999). The S tate may also waive im munity by conduct. For

exam ple, when theState contracts with private citizens , it w aives imm unity from liabil ity. General Servi ces Commi

ssion , 39 S.W.3d at 594. Howeve r, the failure to plead imm unity can waive that imm unity. Kinne ar v. Tex Com’n on Human Rights ex rel. Hale , 14 S. W. 3 d 299, 300 (Tex. 2000) . A legisl ative waiver of sovereign imm uni ty must be express ed in clear and unambiguous language. Te x. Gov’t Code A nn. § 311.034 (Vernon S upp. 2002); Univers ity of Tex. Medical Branch v. Yo rk , 871 S .W.2d 175, 177 (Tex. 1 994). Appellants arg ue t hat

Mill er h as f

ailed to i d entify any const itutional or statutory provision clearly waiving imm unity in this case. Theyrecite several statutory provisions11

thathave been hel d to waive im munity, b ut are not applicable here. Those provisions include the Tort Claims A ct, Tex. Civ. P rac. & Rem . Code Ann. § 101.021, section 11.151 of the Education Code, and two sections of the Health & Safety Code. However, they do notinclude in th at di scu ssi on th e De cl ar at or y Ju dg ment s Ac t ( th e Ac t) . T ex. Civ. Prac. & Re m. Code A nn. ch. 37 (Ve rnon 199 7 & S upp. 200 2). Ou r s up re me court has held that the Act is a w

aiver of sov ere ig n imm unity and authorizes the award of attorney’s fe es against the State w hen a declaration of rights under a statue or ordinance is proper . Texas Educ. Agenc

y v. Leeper

, 893 S .W.2d 432, 446 (Tex. 1 994).
The Act authorizes Tex as courts of record to declare the righ ts of a pers on interested in a “deed, will, w ritten co ntract, . . . o r wh ose rights , stat us, or ot her legal relations are a f

fected by a stat ute, m unicipal ordinance, contract or franchise,” to determ ine questions of construction or validity. A court m ay also construe a constitutional provision under the Act. See Chennault v. Phi llip s , 914 S.W.2d 140, 141 (Tex. 1996). The Actwaives sovereign imm unity when used to declare rights under a statute or ordinance. Leeper , 893 S.W.2d at 446.
In his suit, Miller sought nine specific declarations. In its partial summ ary judgm ent, the trial court made five of those declarations. Becaus e the waiver only ex tends to declarations within the scope of the Act, any declarations beyond the scope of t h e Act
w ould be barred by sovereign im munity. W e now co nsider each declaration made by the trial court.12

The first declaration was that M iller was the duly elected constable of Potter County Precinct 2 from January 1, 1999, through Decem ber 31, 2000, and he w as entitled to a
re as on ab l e s al ar y. Al th ou gh un di sp ut ed , t he ti me period i s a finding of fact not covered bythe Act. E ven so, the decl ara tion as to e ntit lem ent of area son ablesala ry a rgu ably construes article XVI, s ection 61 of the Texas Constitution.
The trial court’s second declaration was that the failure of the com m issioner’scourt to set a reasonable salary was “arbitrary and unreasonable . . . and const itute[d] an abuse of discreti on as a m atter of law.”The third declaration was that t he com m issioner’scourt had failed to p erf

ormits m inisteria l dut

y toset a re aso nab le salary. The fourth declaration
wasthat the com missioners, both individual ly and as the governing body of Potter County, had a legal obligati on to set a reasonable salary during Miller’s term

. The fifth declaration
wasthat s etting a s alaryof $227 pe r year, and later reducing that salary to $0, w as unreasonable and an abuse of discretion.
W ithout addressing the m erits of the se d ecla rat ions , be cau se t hey w ere in construction of article XVI, sect ion 61 of the T exas C onsti tut ion, und er t he f acts of this case, we fi nd th ey ar e p ro pe r mat te rs fo r ju dicial declaration. Therefore, they are not barred by sover eign i mm unity. Citing City

of Beaumont v. B ouill

ion , 896 S .W.2d 143, 149 (Tex. 1 995), appellants challenge Miller’s claims as arising from article XVI, section 61 of t he Texas C onstitution. Because the Bouilli

on cas e holds that, subj ect to limited ex ceptions, Texas d oes not13

recognize private causes of action for violation of constitutional rights, appellants contend the ir plea to the jurisdiction was good. See also Mitchel l v. Amari

llo Hosp. Dist., 855 S. W.2d 85 7, 8 72- 73 ( Tex .A pp. --A m arillo199 3, w rit d enie d) ( the re isno private cause of action fo r violation of due process pro visions of the state con stitution).
There is an exception tothe general rule against permitting private causes of action for violation of constitutional right s in those instances w here there are constitutional pro vis ions that are “self-enacting.” A cons titutional provision i s said to be self-enacting when it supplies a rule sufficient to protect the right given or permit enforcement of the duty imposed. Frasher v. Yanes, 9 S.W.3d 422, 426 (Tex.A p p.--Au stin 1999 , no pet .). Appellants argue that becau se article XVI, section 61 re quires acti on by a comm ission er’s court, it i s not one of those “sel f-enactin g” provisi ons.
Millerre sp on ds by de ny i ng hi s c l ai ms are based o n the Tex as Con stitution. Rathe r, he arg ues , his

claim s were for awrit of m andam us, dec laratory judgm ent, and actual and
exem plary damagesand he “specifically point[ed] to the Distri ctCourt’ s autho rity under ” art icle V, section 8 of

the state const itution, as well as section 24.020 of the Governm ent Code. He reasons that the cases which we have discussed above recognize “m andam us [as] the proper rem edy under these circum stances.”
Millerdoes not cite any authority holding sovereign imm unity is not applicable to the relief he seeks or that arti cle V, section 8 or section 24.020 of the Governm ent Code waives appellants’ imm unity. The ultimate relief sought byMiller is the recovery of m oney14

damages. His claims for dec larator y r elief and mandam us are m erely ancillary to that claim and appellants’ second issue mus t be viewed and discussed in that contex t.
Section 552.321 of

the Governm ent Code supports the view that m andam us relief may be barred by

sovereign imm unity. That statute w aives imm unity from suits seeking writs of m andam us to com pel disclosure of information covered by the Open Records Act. Tex. Gov’t

Code A nn. § 55 2.321 (Vernon 19 94). That statute w ould not b e neces sary

if,
as Mille r contends, the doctrine of sovereign imm unity is not applicable to suits seeking manda mus

relief. But see52 Tex.Jur.3d § 485 (W est1999) (citing cases in which it was held that m andam us wasnot barred by sovereign im munity).
Art icle V, section 8 of th e Texas C onstitution g ran ts d is trict courts “appellate jurisdiction and general sup e rvisory control over the County C omm issioners Court, with such exceptions an d under such regulations as may be prescribed by law.” S ection 24.020 of the Governm ent Code m erely repeats the constitutional provision. Ou r s up re me court considered the nature of th e supervisory control in Haverbekken v. Hale , 1 09 Te x. 106, 204 S.W. 1162 (1918), and in doing so, said:
The power of the Distri ct Court to supervi se the proceedings of the Com m issionersCourt

here invol ved gave the injunction suit the cha racter of a d irect attack upon those proceedings rather than a collateral one

. Crawford v. McDonald , 88 Tex. 626 , 33 S.W. 325. Thisper m itte d a f ull inquiryfor the p urpo se of seeing w hether throughout the proceedings the Court had com plied w ith t he law , un hind ere d by any pre sum ptio ns o rdin arily indulged in a collateral attack upon a judgm ent of a c our t of general jurisdiction. Not otherwi se could the Distri

ct Court supervi

se and control i

ts action.15

Id

. at 1165 (em pha sis added). See also Stringer , 843 S.W.2d at 479 (once the
comm ission er’s court

acts, the distri ctcourt m ay review the comm issioners’ orders); Grant
v. Ammerman , 437 S .W.2d 547, 550 (Tex. 1 969) ( order abolishing J u stice Court was rev iewablebydistrict court und er genera l superviso rypower); Bird v . Alex ander , 288 S.W. 606, 608(Te x. Civ .A pp. --D allas192 6, n o w rit)(fin al acti on requi red before re view by distri ct court); Rodriquez

v. Vera , 249 S.W.2d 689, 692 (Tex.Civ.App .--San Antonio 1952, no writ) (acts of com missioners’ courts reviewabl e o n the s am e basis a s thos e of oth er courts). Similarl y, cas es a pply in g sect ion 24.020of the Governm ent Cod e and its predece ssors have all involved dire ct c hall enges to acts or om issions of com missioners’ courts. We have found no case suppo rting the view that the constitutional and sta tutory p ower of review by the district court in any w ay waives th e right of sovereign imm unity against suits for damages.
He re, Mille r’s clai m seeking declarato ry judgment in the distri ct court may b e construed as see king an ap pellate review of the com m issioners ’ actio n in setting constables’ salary at $227 per year and subs equently eliminating the salary and health benefits. Under the authorities we have discussed, that type of action i s not barred by sovereign imm unity. H owe ver, none of the author itie s on which he relies support a waiver of sovereign imm unity as to hi s claims for actual and exemplary damages. Thus, the trial court err ed in denying the plea to the jurisd ictio n as to Mill er’s claim for damages against Potter County, Judge W are an d the co mm issi oners in th eir offi cial capaci ty. As to Mille r’s claim for m a ndamu s relief, while not barred by sovereign im munity directly, it w as16

deri vative of his claimfor dam ages. Requiring th e com m issioner’scourt to set asalary thatMiller is barred from collecting in his claim for dam ages w ould be to compel a useless
a ct. As a m atter of publ ic poli cy, courts do not requ ire perf ormance of useless act s . Mackey v. Lucey

Products Corp. , 150 Tex. 18 8, 239 S.W.2d 607, 608 (1951); Rogers v. Ricane Enterpri ses , Inc., 930 S .W .2d 157, 167 (Tex .App.--Am ar illo 1996, writ denied); Power s v. Floyd , 904 S.W.2d 713, 718 (Tex.App. --W aco 1995, writ d enied). Appellan ts’ second issue is sustained.
In t heir thir d iss ue, app ellan ts c halle ngethetria l cou rt’ s de nial of th eir plea to the jurisdiction in which they asserted legislative imm unity to the claims as serted against them in their i ndivi dual capaci ties. Legisl ative imm unity protects individuals from liability when acting in a legislative capacity. Thus, its applicability turn s on th e natureof the conduct atissue. See Clear Lake City Water Auth. v. Salaz

ar, 781 S. W .2d 347, 349 (Tex .App.
-- Houston [14 th Dist.] 1989, no w rit) (applying immunity tolocal w ate r bo ard ). A n ac tion is legi slati ve i n nature when it reflects a discretionary, policym aking decision of general application ratherthan an individualized decisi on based on particular facts. In re P erry, 60 S.W.3d 857, 860 (Tex. 2001). The d octrine applies to coun ty com m iss ione rs a ctin g in the ir legislative capacities. Me rr il v. Carpenter

, 867 S.W.2d 65, 66 (Tex.App.--Fort Worth 1993, w rit denied). Responding to appellants’ argum ent, Miller asserts that the sett ing of the constable’s salary cannot be a legislative act protecting comm issi oners from liabil ity3 W here the trial court lacks j uris dict ion, w e m ay r end er j udg m ent

for app ellan ts i n an interlocutory appeal. De p a r t m e n t of T r a n sp . v. Ga r

za , 70 S .W.3d 802, 803 (Tex. 2 002). 17 because the duty to set the salary is mandatory and m inisterial

. Vondy, 620 S.W.2d at 108. A s we noted in our footnote 2 above, it m ight appear that the suprem e cou rt’ s holdings concerning whether discretion and m inisterial duties a re m utually ex clusive are notconsistent. Compare Vondy, su pra, with Downing v. Brown , 935 S.W.2d 112 ( T ex. 1996). However, any such apparent inconsistenc y was resolved by the holding in Jensen Const r. Co. v. Dallas Co unty , 92 0 S .W.2d 7 61, 773 (Te x. Ap p.- -Da llas 199 6, w rit denied). Appellants’ third issue is sustained.
The holdings which wehave m ade above require us to m ake the fo llowing dispositions of this appeal:
1. The partial summ ary judgm ent of the trial court is reversed insofar as it denies the pleas to the j urisdiction of appellants Potter County , Arthur Ware, indiv idua llyand as the County Judge of Potte r County, and the nam ed defendant

com missioners of th e Potter County Com missioner’s C ourt in t heir indiv idua l and off

icial cap acit ies o n M iller’ s c laimfor dam ages. The w rit of manda mus

requiring the Pott er County Com missioner’s C ourt to set a re aso nab le salary for Miller in his capacity as Constable is also r eversed

. Those claims are severed and we rende r judgm ent in favor of appellants on th em. 3 2. That portion of the proceeding seeking declaratory relief pertaining to the setting of a reasonable salary for the constable’s office, including M ill er’s quest for attorney’s fees , is remande d to the trial cou rt f or further proceedings in accordance w ith this opinion.
John T. Boyd Chief Justi ce18

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