N O . 01

- 15

- 00583

- CV 

## In the Court of Appeals **for the First District of Texas** 

T HE H ONORABLE M ARK H ENRY , C OUNTY J UDGE OF G ALVESTON C OUNTY , Appellant , v. T HE H ONORABLE L ONNIE C OX , Appellee

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From the 56th Judicial District Court of Galveston County, Texas, Cause No. 15

- CV

- 0583

A PPELLANT ’ S R EPLY IN S UPPORT OF E MERGENCY M OTION FOR S TAY
Edward L. Friedman State Bar No. 07462950 efriedman@bakerlaw.com B AKER & H OSTETLER LLP 811 Main Street, Suite 1100 Houston, Texas 77002 Telephone: 713.751.1600 Facsimile: 713.751.1717 James P. Allison Texas Bar No. 01090000 j .allison@allison

- bass .com J. Eric Magee Texas Bar No. 24007585 e.magee@allison

- bass.com Phillip Ledbetter Texas Bar No. 24041316 p.ledbettcr@allison

- bass.com A LLISON , B ASS & M AGEE , L.L.P. A.O. Watson House 402 W. 12th Street Austin, Texas 78701 Telephone: 512.482.0701 Facsimile: 512.480.0902 Attorneys for Appellant ACCEPTED 01-15-00583-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 7/8/2015 4:16:15 PM CHRISTOPHER PRINE

CLERK1 R EPLY IN S UPPORT OF E MERGENCY M OTION F OR S TAY T O T HE H ONORABLE C OURT O F A PPEALS : Texas Rule of Appellate Procedure 29.3 provides that this Court may enter any temporary orders necessary to preserve the parties’ rights until disposition of the appeal. T EX
. R. A PP
. P ROC . 29.3. This Court should grant a stay of the trial court’s temporary injunction until the appeal on the merits can be decided. The tone and tenor of Judge Cox’s Response, suggesting the need to pursue contempt proceedings and implying sanctions should be levied simply for pursuing an int erlocutory appeal, demonstrates the need for an immediate stay. In less politically tumultuous circumstances, it would be recognized and accepted that Judge Henry’s filing of a notice of appeal automatically suspends the interlocutory temporary injunction order pending the appeal. See T EX
. R. A PP
. P. 29.1(b) and T EX
. C IV
. P RAC
. & R EM
. C ODE § 6.001. The principal case cited by Judge Cox in the Response concerned a final judgment and did not implicate TRAP 29.1(b) or an appellate court’s ability to grant a st ay under TRAP 29.3. See In re Bd. for Educator Certification 452 S.W.3d 802, 807 n. 36 (Tex. 2014) (not addressing TRAP 29 and noting that its holding is consistent2 with the principle that appellate courts have “near

- unlimited” authority to grant a stay); see also Dallas v. North By West Entertainment , 24 S.W.3d 917, 918

- 19 (Tex. App.

— Dallas 2000, no pet.) (stating in the context of an interlocutory appeal that “Rule 24 is a general rule that provides how appellants may supersede final judgments. In contras t, rule 29 is a specific rule applying only to the appeal of interlocutory orders in civil cases.”). In any event, Judge Henry seeks a stay from this Court under the authority of TRAP 29.3

— and recognition of TRAP 29.1(b)

— until the merits of his appeal can be addressed by this Court. Judge Cox’s arguments do not relate to a grant of a stay under TRAP 29.3. Instead, Judge Cox’s arguments veer into the merits of the appeal itself or arguments that Judge Cox apparently intends to raise at a future contempt proc eeding. Simply stated, Judge Cox fails to present any compelling reason for this Court not to exercise its authority to preserve the parties’ rights until disposition of the appeal under TRAP 29.3. The need for a stay is evident. The temporary injunction not only intrudes into separation of powers concerns between the executive and judicial branches, but requires Judge Henry to act on behalf of each of3 the independently elected five

- member commissioners court, requiring Judge Henry to recreate a position t hat no longer exists as well as amend the Galveston County budget in order to transfer funds back into the Justice Administration Department to the salary ordered by the court. See T EX
. L OCAL G OV ’ T C ODE § 81.001, et seq. ; see also T EX
. L OCAL G OV ’ T C ODE § 1 11.001, et seq. (outlining commissioners court responsibility regarding budgetary process). Judge Henry is but one vote among five. Judge Cox suggests that the other Commissioners can be held in contempt for “acting in concert” with Judge Henry, a question able claim that can be debated at a future point, but Judge Cox does not address the potential jeopardy faced by Judge Henry under the temporary injunction, requiring him alone to: (i) re

- establish the Justice Administration Department, (ii) recreate the D irector of Justice Administration position (but with fewer duties and responsibilities than it previously had), (iii) reinstate Ms. Quiroga to the position of Director of Justice Administration, and (iv) amend the budget to transfer funds into the Departme nt of Justice Administration in order to pay Ms. Quiroga the salary ordered by the trial court. Only the commissioners4 court as a whole has the responsibility for setting the annual county budget and may spend county funds only “in strict compliance with t he budget.” T EX
. L OCAL G OV ’ T C ODE § 111.070; see also id. §§ 111.003, 111.0675; Gattis v . Duty , 349 S.W

. 3d 193 , 203 (Tex. App

. – Austin 2011 ,

no pet .). Setting aside the merits of the temporary injunction itself, Judge Henry could vote consistently with temporary injunction and have his vote overruled by a majority of the commissioners court voting contrary. Judge Henry should not be in risk of contem pt if a majority of the commissioner’s court does not vote consistently with the requirements of the temporary injunction. C ONCLUSION AND R EQUEST FOR R ELIEF Judge Henry should have the opportunity to demonstrate to this Court that the trial court abused i ts discretion in granting the temporary injunction without jeopardy while this Court considers the merits of the appeal. A stay of the temporary injunction is essential in order to avoid further political rancor and discord among the Administrative Judges and the County Judge while this issue is resolved through this appeal. For all of the reasons stated above, Judge Henry requests this Court to issue a stay of enforcement of the5 temporary injunction from which this appeal is taken. Judge Henry further requ ests all other relief to which he may be entitled. Respectfully submitted,

/s/ Edward L. Friedman Edward L. Friedman Texas Bar No. 07462950 efriedman@bakerlaw.com B AKER H OSTETLER LLP 811 Main Street, Suite 1100 Houston, Texas 77002 Telephone: 713.751.1 600 Facsimile: 713.751.1717 James P. Allison Texas Bar No. 01090000 j .allison@allison

- bass.com J. Eric Magee Texas Bar No. 24007585 e.magee@allison

- bass.com Phillip Ledbetter Texas Bar No. 24041316 p.ledbettcr@allison

- bass.com A LLISON , B ASS & M AGEE , L.L.P. A.O. Watson House 402 W. 12th Street Austin, Texas 78701 Telephone: 512.482.0701 Facsimile: (512) 480

- 0902 Attorneys for Appellant6 C ERTIFICATE O F S ERVICE I hereby certify that a true and correct copy of the foregoing document has been served to the following parties on this the 8th day of J u l y , 2015, in accordance with the Texas Rules of Appellate Procedure and the electronic filing procedures

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/s/ Edward L. Friedman Edward L. Friedman