Faye Comte and Laura Severt v. Smith County Commissioners Court and Joel P. Baker, Cary Nix, Jeff Warr, Joann Hampton, and Terry Phillips, Each in His or Her Official Capacity as a Smith County Commissioner

Opinion

ACCEPTED 06-14-00086-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 3/2/2015 5:20:51 PM DEBBIE AUTREY CLERK

NO. 06-14-00086-CV FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 3/3/2015 9:48:00 AM In The Court of Appeals DEBBIE AUTREY Clerk For The Sixth Judicial District

FAYE COMTE and LAURA SEVERT, Appellants,

v.

SMITH COUNTY COMMISSIONERS COURT and JOEL P. BAKER, CARY NIX, JEFF WARR, JOANN HAMPTON and TERRY PHILLIPS, each in his or her official capacity as a Smith County Commissioner, Appellees.

Brief of Appellees

ON APPEAL FROM THE 241ST JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS TRIAL CAUSE NO. 13-2492-C

ROBERT S. DAVIS FLOWERS DAVIS, PLLC 1021 ESE LOOP 323, STE. 200, TYLER, TEXAS 75701 TELEPHONE: 903.534.8063 FACSIMILE: 903.534.1650

ATTORNEYS FOR APPELLEES IDENTITY OF PARTIES

Pursuant to TEXAS RULE OF APPELLATE PROCEDURE 38.1(a), the following is

“a complete list of all parties to the trial court’s judgment . . . appealed from, and the

names and addresses of all trial and appellate counsel . . . .” TEX. R. APP. P. 38.1(a).

Appellants/Relators: Faye Comte Laura Severt

Counsel for Appellants/Relators: Brandon Beck STARR SCHOENBRUN COMTE MCGUIRE, PLLC 11o N. College Ave., Suite 1700 Tyler, Texas 75702

Appellees/Respondents: Smith County Commissioners Court Joel P. Baker Cary Nix Jeff Warr Joann Hampton Terry Phillips

Counsel for Appellees/Respondents: Robert S. Davis FLOWERS DAVIS, P.L.L.C. 1021 ESE Loop 323, Suite 200 Tyler, Texas 75701

-i- TABLE OF CONTENTS

IDENTITY OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -i-

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iv-

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-

I. APPELLANTS’ CLAIMS ARE MOOT, BECAUSE THEY ASK THE COMMISSIONERS TO PERFORM AN ACT NOT ALLOWED UNDER THE TEXAS CONSTITUTION AND THE TEXAS LOCAL GOVERNMENT CODE BY REQUIRING THE COMMISSIONERS TO AMEND THE EXPIRED BUDGET FOR THE FISCAL YEAR OF 2013.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

II. EVEN IF THIS COURT DETERMINES THAT APPELLANTS’ CLAIMS ARE RIPE FOR REVIEW, A WRIT OF MANDAMUS IS NOT THE PROPER PROCEDURE FOR BRINGING SUCH CLAIMS. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-

A. The actions of the Commissioners were discretionary in nature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-

B. Appellants have an adequate remedy at law, other than mandamus, by potentially filing suit in district court.. . . . . -18-

-ii- III. APPELLANTS’ WRIT OF MANDAMUS IS BARRED BY LEGISLATIVE AND GOVERNMENTAL IMMUNITY.. . . . . . -21-

A. The Commissioners are entitled to absolute legislative immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-

B. The Commissioners are entitled to governmental immunity because there is no question that Appellants seek retrospective monetary damages.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-

CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -34-

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -36-

-iii- INDEX OF AUTHORITIES

CASES

Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-

Brown v. Lubbock Cnty. Comm'rs Court, 185 S.W.3d 499 (Tex. App.-Amarillo 2005, no pet.).. . . . . . . . . . . . . . . -16-

Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-, -23-

Channelview Indep. Sch. Dist. v. A.R.C.I., Ltd., 199 S.W.3d 556 (Tex.App.-Houston [1st Dist.] 2006, no pet.). . . . . . . . -23-

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009).. . . . . . . . . . . . . . . . . . . . . -25-, -26-, -32-, -33-

City of Houston v. Houston Firefighters' Relief & Retirement Fund, 196 S.W.3d 271 (Tex.App.-Houston [1st Dist.] 2006, no pet.). . . . . . . . -22-

City of Houston v. Williams, 216 S.W.3d 827 (Tex. 2007).. . . . . . . . . . . . . . . . . . . . . . -24--27-, -29-, -32-

City of Seagoville v. Lytle, 227 S.W.3d 401 (Tex. App.—Dallas 2007, no writ). . . -23-, -26-, -27-, -29-

City of Terrell v. Dissaint, 71 Tex. 770, 9 S.W. 593 (1888). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

City-County Solid Waste Control Bd. v. Capital City Leasing, Inc., 813 S.W.2d 705 (Tex. App.— Austin 1991, writ denied). . . . . . . . . . . . -13-

Collin County, Tex. v. Homeowners Ass'n for Values Essential to Neighborhoods, 654 F.Supp. 943 (N.D.Tex.1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-

-iv- Commissioners Court of Caldwell County v. Criminal Dist. Attorney, Caldwell County, 690 S.W.2d 932, 933-34 (Tex.App.—Austin 1985, writ ref'd n.r.e.).. . . -17-

Commissioners Court of Shelby County v. Ross, 809 S.W.2d 754 (Tex.App.—Tyler 1991, no writ).. . . . . . . . . . . . . . . . . -17-

Consumers Union of the United States, Inc., 446 U.S. at 731. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-

Guthery v. Taylor, 112 S.W.3d 715 (Tex.App.-Houston [14th Dist.] 2003, no pet.). . . . . . . -23-

Harris v. Jones, 8 S.W.3d 383 (Tex. App.—El Paso 1999, no writ). . . . . . . . . . . . . . . . . -20-

Hinojosa v. Tarrant County, 355 S.W. 3d 812 (Tex. App—Amarillo 2011, no writ). . . . . . . . . . -27-,-29-

Hooten v. Enriquez, 863 S.W.2d 522 (Tex. App.—El Paso 1993, no writ). . . . . . . . . . . . . . . -17-

In e Perry, 60 S.W.3d 857 (Tex. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-, -21-

Kaufman County v. Combs, 393 S.W.3d 336 (Tex. App.—Dallas 2012, pet. denied). . . . . . . . . -29-, -34-

Medina County Commissioners' Court v. Integrity Group Inc., 944 S.W.2d 6 (Tex.App.-San Antonio, 1996, no writ).. . . . . . . . . . . . . . -23-

Merill v. Carpenter, 867 S.W.2d 65 (Tex. App.— Fort Worth, 1993, writ denied). . . . . . . . . -21-

Randall County Commissioner’s Court v. Sherod, 854 S.W.2d 914 (Tex. App. Amarillo 1993). . . . . . . . . . . . . . . . . . . . . . -17-

-v- Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-

Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1987). . . . . . . . . . . . . . . . . . . . . -18-, -21-

Smith v. McCoy, 533 S.W.2d 457 (Tex.App.—Dallas 1976, writ dism'd). . . . . . . . . . . . . -20-

State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App. 1978). . . . . . . . . . . . . . . . . . . . . . . . -16-, -18-

Supreme Court v. Consumers Union of the United States, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980).. . . . . . . . . . . . . . -21-

Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-

Texas & New Orleans R.R. Co. v. Galveston County, 141 Tex. 34, 169 S.W.2d 713 (1943). . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-

Texas Dept of Transp v. Jones, 8 S.W.3d 636 (Tex. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-

Texas Natural Resource Conservation Com’n v. It–Davy, 74 S.W.3d 849 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-, -25-

Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-

Vondy v. Commissioners Court, 620 S.W.2d 104 (Tex. 1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-, -29-

-vi- Weber v. Sachse, 591 S.W.2d 563 (Tex.Civ.App.—Dallas 1979, writ dism'd). . . . . . . . . . -17-

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex.2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-

RULES

TEX. R. APP. P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -i-

STATUTES

TEX. CONST. ART. XI, § 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-, -15-

TEX. LOC. GOV’T. CODE ANN. § 111.031 (Vernon 1987 & Supp.1983). . . . . . -17-

TEX. LOC. GOV’T. CODE ANN. § 111.043 (Vernon 1987 & Supp.1983). . . . . . -17-

TEX. LOCAL GOV'T CODE § 111.068. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

TEX. LOCAL GOV'T CODE § 111.070. . . . . . . . . . . . . . . . . . . . . . . . . . -12-, -14-, -15-

TEXAS FAMILY CODE § 107.015. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-, -15-, -19-

TEXAS GOVERNMENT CODE § 614.022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -26-

TEXAS GOVERNMENT CODE § 614.023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -26-

TEXAS PROBATE CODE § 669 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-, -32-

-vii- STATEMENT OF THE CASE

On September 16, 2013, Faye Comte, Jarrod Heath, Jeff Sanders, Jennifer

Deen, and Laura Severt filed a Petition for Writ of Mandamus against the Smith

County Commissioners Court and Joel Baker, Cary Nix, Jeff Warr, Joann Hampton,

and Terry Phillips in their official capacities as Smith County Commissioners in the

241st District Court of Smith County, Texas. CR at 1. The basis for this petition was

an order issued by the Smith County Commissioners Court that after July 18, 2013,

it would not approve additional funding for non-contract attorney fees in family law

matters arising from the 321st Judicial District Court of Smith County, Texas, due to

unwarranted and extravagant spending on the part of that court. CR at 18-19.

Relators alleged that under Section 107.015 of the TEXAS FAMILY CODE, the

Commissioners must pay attorney fees to court appointed attorneys ad litem who

represent the child or an indigent parent in suits filed by the Texas Department of

Family and Protective Services requesting termination of the parent-child

relationship. CR at 7. Relators alleged that they had no adequate remedy at law and

requested that a writ of mandamus be issued vacating the Commissioner Court’s order

and directing the Commissioners to pay relators for their services as attorneys ad

litem for children and indigent parents in suits to terminate the parent-child

relationship brought by the Texas Department of Family and Protective Services. CR

-1- at 10, 13.

Defendants responded by filing a Plea to the Jurisdiction on October 13, 2014,

alleging that Relators’ claims were barred by legislative immunity and sovereign

immunity, and that due to the fact that the fiscal year for 2013 had ended, Relators’

claims were also moot. CR at 42-46. Defendants also generally denied all of

relators’ claims and asserted a number of affirmative defenses including sovereign

and official immunity. CR at 47-48. Relators filed a Response to Defendants’ Plea

to the Jurisdiction on October 28, 2013. CR at 55. After the filing of the Response,

one of the Relators, Jarrod Heath, filed a Motion for Partial Nonsuit of Petition for

Writ of Mandamus indicating his desire to no longer seek mandamus relief. CR at

61. After the filing of these pleadings, 241st District Court Judge Jack Skeen, Jr.,

issued an Order of Recusal on November 14, 2013, requesting the Honorable Mary

Murphy, Presiding Judge of the First Administrative Judicial Region, to appoint a

visiting judge. CR at 63. Judge Murphy responded to the Order of Recusal on

November 18, 2013, and assigned the Honorable Linda Thomas, Senior Judge of the

5th Court of Appeals, to the case. CR at 64.

Judge Thomas heard oral arguments by both sides on June 6, 2014. CR at 89.

On August 25, 2014, Judge Thomas issued a Final Order denying Relators’ Petition

for Writ of Mandamus. CR at 75. On October 2, 2014, only Relators, Faye Comte

-2- and Laura Severt, filed their Notice of Appeal challenging Judge Thomas’ ruling. CR

at 76. On December 29, 2014, Appellants filed their brief with this Court.

-3- ORAL ARGUMENT

Defendants/Appellees Smith County Commissioners Court and Joel Baker,

Cary Nix, Jeff Warr, Joann Hampton, and Terry Phillips in their official capacities

assert that Oral Argument would assist the Court in resolving the issues presented in

this appeal; consequently, Appellees request that the Court grant Oral Argument in

this case.

-4- ISSUES PRESENTED

I. APPELLANTS’ CLAIMS ARE MOOT, BECAUSE THEY ASK THE COMMISSIONERS TO PERFORM AN ACT NOT ALLOWED UNDER THE TEXAS CONSTITUTION AND THE TEXAS LOCAL GOVERNMENT CODE BY REQUIRING THE COMMISSIONERS TO AMEND THE EXPIRED BUDGET FOR THE FISCAL YEAR OF 2013.

II. EVEN IF THIS COURT DETERMINES THAT APPELLANTS’ CLAIMS ARE RIPE FOR REVIEW, A WRIT OF MANDAMUS IS NOT THE PROPER PROCEDURE FOR BRINGING SUCH CLAIMS.

III. APPELLANTS’ WRIT OF MANDAMUS IS BARRED BY LEGISLATIVE AND GOVERNMENTAL IMMUNITY.

-5- STATEMENT OF FACTS

On June 18, 2013, the Smith County Commissioners Court entered an order

pertaining to one of its most essential responsibilities: the county budget. CR at 17.

In an exercise of budgetary discretion and policy making authority, the

Commissioners Court issued an order “Setting Policy for Enforcement of Fiscal Year

2013 Budget Category Pertaining to Non-Contract Attorneys for Civil Family Cases

in the 321st Judicial District Court.” Id. The purpose of this order was to ensure that

the Commissioners Court fulfilled its budgetary duties by spending county funds in

strict compliance with the budget for the fiscal year 2013. Id. The Commissioners

recognized that funds were not being spent in compliance with the 2013 budget, due

to “unwarranted and extravagant” spending on behalf of the 321st Judicial District

Court. CR at 18. The Commissioners Court had transferred tremendous amounts of

additional funds to the 321st District Court during 2013 to the point where any

continued budget transfers would have undermined the overall fiscal, budgetary, and

policy goals of the county. CR at 18, 19 (n.1). Such additional budget transfers were

made in addition to the set budget for the 321st District Court which was significantly

higher than any other district court in Smith County.

Smith County consists of four district courts: the 241st District Court, 7th

District Court, 114th District Court, and the 321st District Court. The adopted budget

-6- for the fiscal year 2013 for the 241st District Court, 7th District Court, and 114th

District Court was $228,110; $226,266; and $224,523 respectively for each court.

CR at 50-51. The adopted budget for the 321st District Court was nearly 5 times that

of any other district court in the amount of $1,030,229. CR at 51. Despite this seven

figure budget, the 321st District Court continued to overspend this amount to the point

that the Commissioners Court was expending additional funds. The overspending on

the part of the 321st District Court was due in large part to the 321st District Court’s

appointment of 11 “hourly” ad-litem attorneys. CR at 41. These 11 attorneys are in

addition to the already 9 contract attorneys that work in the 321st District Court. CR

at 19, 41. This number of contract attorneys is equal to the total number of contract

attorneys in the other district courts combined which each have three contract

attorneys. CR at 19 ( n.2). In an effort to maintain the budget for the 2013 fiscal

year, the Commissioners Court ordered that after July 18, 2013, the Commissioners

Court would no longer approve any additional funding for non-contract attorneys fees

in civil family matters in the 321st District Court and that the caseloads of the non-

contract attorneys would be transferred to the 9 contract attorneys. CR at 19.

Appellants, Severt and Comte, were one of the 11 non-contract ad litem

attorneys in the 321st District Court. In particular, they represented children and

indigent parents in suits to terminate the parent-child relationship brought by the

-7- Texas Department of Family and Protective Services. CR at 7-8. It is for these

services that Appellants sought reimbursement from the County. Despite the fact that

the Commissioners’ Order went out on June 18, 2013, and gave Appellants one

month to submit their invoices, Appellants did not present their invoices to the

Commissioners Court until August 26, 2013, and September 10, 2013. CR at 23, 26.

Pursuant to the Commissioners Court’s Order, and due to the fact that the invoices

were not submitted by the July 18, 2013, deadline, the Commissioners Court did not

approve any additional funds to cover Appellants’ invoices. CR at 5. Despite being

aware of the Commissioners Court’s position as of June 18, 2013, Appellants never

asserted their alleged entitlement to the expenses they occurred until nearly three

months later when they filed their Petition for Writ of Mandamus against the

Commissioners Court and the Commissioners in their official capacities.

-8- SUMMARY OF THE ARGUMENT

Appellants’ claims against the Smith County Commissioners Court and the

Commissioners in their official capacity are moot, because Appellants require the

Commissioners Court to perform an action not allowed under the Texas Constitution

or the Texas Local Government Code by asking the Commissioners Court to amend

the expired 2013 budget in order to compensate Appellants for expenses incurred

during the 2013 fiscal years. The Commissioners cannot simply reopen the 2013

fiscal budget and pay Appellants what they believe they are due in this matter. If

Appellants had submitted their invoices for the expenses that they believed they were

entitled to within the time frame set forth by the Commissioners Court, then the

Commissioners could have taken the necessary steps to make such payments during

the 2013 fiscal year. In addition, even though Appellants had been aware of the

Commissioners’ position as early as June 18, 2013, the first time they ever alleged

that they were statutorily entitled to payment by the county was not until September

16, 2013, the date they filed their Petition for Writ of Mandamus. These

unreasonable delays on the part of Appellants put the Commissioners in a position

where they could not deal with these expenditures at the time they arose in 2013, and

no action could be taken by the Commissioners to amend the original 2013 budget.

-9- Even if this Court determines that Appellants’ claims are ripe, a petition for

writ of mandamus is not the proper procedure to bring forth such claims. Mandamus

relief is only available as to purely ministerial acts. Appellants’ claims focus solely

upon a decision made by the Commissioners in regard to fiscal policy. The

Commissioners have broad discretion in all decisions pertaining to budgetary

manners. As such, the act that Appellants challenge is discretionary in nature and not

ministerial. In addition, before mandamus relief can be granted, it must be shown by

the party filing the petition for writ of mandamus that he has no other adequate

remedy at law. In analyzing the specific facts of the matter before this Court, and not

comparing this matter to other cases which are factually distinguishable, it is clear

that Appellants have an adequate remedy at law by filing suit in district court.

Finally, Appellants’ Petition for Writ of Mandamus is barred by both absolute

legislative immunity and governmental immunity. Absolute legislative immunity is

applicable in this case, because the budgetary decisions made by the Commissioners

are the very types of decisions that are purely legislative in nature. Not only is

absolute legislative immunity applicable to the Commissioners, governmental

immunity also prevents Appellants from bringing a petition for mandamus against the

Commissioners. It is obvious that the only remedy sought by Appellants is

retrospective, monetary damages. It is a well-established legal principle that where

-10- a claimant seeks retrospective, monetary damages against a county and its agents, the

county and its agents are shielded by governmental immunity.

-11- ARGUMENT AND AUTHORITIES

I. APPELLANTS’ CLAIMS ARE MOOT, BECAUSE THEY ASK THE COMMISSIONERS TO PERFORM AN ACT NOT ALLOWED UNDER THE TEXAS CONSTITUTION AND THE TEXAS LOCAL GOVERNMENT CODE BY REQUIRING THE COMMISSIONERS TO AMEND THE EXPIRED BUDGET FOR THE FISCAL YEAR OF 2013.

Appellants seek relief in the form of mandamus compelling the Smith County

Commissioners’ Court to make payments incurred by Appellants during the 2013

fiscal year. Such relief would require the Commissioners to amend the already

expired budget for the year 2013, which is not allowed under the Texas Constitution

or the Texas Local Government Code. A county’s fiscal year consists of a one-year

period beginning on October 1 of each year. TEX. LOCAL GOV’T CODE § 112.010(b)

(Vernon 2001). During this fiscal year, “[t]he commissioners court may spend county

funds only in strict compliance with the budget, except as provided by this section.”

TEX. LOCAL GOV’T CODE § 111.070(a) (Vernon 2005). In creating the budget, the

commissioners court must ensure that “the amounts budgeted in a fiscal year for

expenditures from the various funds of the county may not exceed the balances in

those funds as of the first day of the fiscal year, plus the anticipated revenue for the

fiscal year as estimated by the county auditor.” TEX. LOCAL GOV’T CODE §

111.068(b) (Vernon 2013). In an effort to ensure that the balance of funds for the

fiscal year is not exceeded during that particular fiscal year, the Texas Constitution

-12- and the Texas Local Government Code both contain provisions on how and when

expenditures in excess of the budget should be handled by the commissioners court.

The Texas Constitution states that “no debt for any purpose shall ever be

incurred in any manner by any city or county unless provision is made, at the time of

creating the same, for levying and collecting a sufficient tax to pay the interest

thereon and provide at least two per cent (2%) as a sinking fund . . .” TEX. CONST.

ART. XI, § 7 (emphasis added). If a debt is incurred in excess of the budget,

provisions must be made to compensate for that expense “at the time” that the debt

arose during the fiscal year. Id. As explained by the Texas Supreme Court:

At the time the constitution was framed, the history of the country and the state afforded examples of municipal corporations which had become bankrupt through the reckless and extravagant management of their governing bodies; and its framers doubtless had under consideration the evils which result both to the tax-payers and the creditors of such corporation from an unlimited power to create debts.

City of Terrell v. Dissaint, 71 Tex. 770, 9 S.W. 593, 594 (1888). A debt which is

incurred during the fiscal year and not compensated for at the time it is incurred

violates the Texas Constitution. Texas & New Orleans R.R. Co. v. Galveston County,

141 Tex. 34, 169 S.W.2d 713, 716 (1943); City-County Solid Waste Control Bd. v.

Capital City Leasing, Inc., 813 S.W.2d 705, 707 (Tex. App.— Austin 1991, writ

denied). In addition, the Texas Local Government Code states that after approving

-13- a budget, the commissioners court “may spend county funds only in strict compliance

with the budget, except in an emergency.” TEX. LOCAL GOV’T CODE § 111.070(b).

In the case of such an emergency, the commissioners court may authorize necessary

expenditures only through an “amendment to the original budget.” Id. (emphasis

added). In light of the provisions explained in the Texas Constitution and the Texas

Local Government Code, it is clear that any payment to the Appellants for their

services must have been made to them during the 2013 fiscal year.

Every attempt was made by the Commissioners to resolve any potential debts

or expenditures incurred by Appellants during the 2013 fiscal year. The Appellants

were made aware on June 18, 2013, that payment for their services would no longer

be rendered as of July 18, 2013. Despite having a month to submit the invoices for

the expenses they incurred, during which time Appellants could have been paid for

their services, Appellants waited until August 26, 2013, and September 10, 2013, to

submit their invoices for payment to the Commissioners Court. In addition,

beginning June 18, 2013, Appellants had almost three months until the end of the

fiscal year on October 1, 2013, to make the Commissioners aware of the fact that

Appellants believed that they were statutorily entitled to the expenses they incurred

during 2013. Despite having these three months to make the Commissioners’ Court

aware of their position, Appellants made no mention of their alleged entitlement to

-14- the expenses they incurred until they filed their Petition for Mandamus on September

16, 2013. The district court could not rule on this petition without giving the

Commissioners adequate time to answer the petition; thus there was no way for the

Court to rule on the petition and possibly grant relief during the 2013 fiscal year.

Appellants put the Commissioners in a position where they could not make provisions

for the payment of Appellants’ expenditures “at the time” the expenses were incurred

and could not attempt to amend the “original budget” of 2013. TEX. CONST. ART. XI,

§ 7; TEX. LOCAL GOV’T CODE § 111.070(b).

Due to Appellants’ unnecessary delay in addressing the issue now before this

Court, Appellants’ remedy requested in their Petition for Writ of Mandamus can only

be accomplished by the Commissioners reopening the 2013 fiscal year budget and

amending the expired budget to pay for the expenditures incurred during 2013. The

Texas Attorney General has already ruled on this very issue of whether a

commissioners court may amend the budget for a fiscal year that has already ended.

The answer from the Attorney General to this question was a resounding “no.”

Nor may the commissioners court amend a budget for a fiscal year that has ended . . . [T]he court’s powers and duties relate to the budget adopted for a single fiscal year . . . The commissioners court is authorized to amend the “original budget” and must “file a copy of its order amending the budget with the county clerk.” . . . The “original budget” that may be amended is the budget for the current fiscal year that the commissioners court approved and filed with the county clerk...

-15- TEX. ATT’Y GEN. OP. NO. GA-0340 (2005) at 5 (internal citations omitted) (emphasis

added). The Attorney General in issuing his opinion made sure that there was no

confusion as to this issue by stating that his opinion overruled any other prior opinion

that stated that an expired budget could be amended. Id. at 5 (n.9). Since the only

way for Appellants to receive the money for the fees and expenses incurred would be

for the Commissioners to amend the already expired budget of 2013, Appellants’

claims are moot.

II. EVEN IF THIS COURT DETERMINES THAT APPELLANTS’ CLAIMS ARE RIPE FOR REVIEW, A WRIT OF MANDAMUS IS NOT THE PROPER PROCEDURE FOR BRINGING SUCH CLAIMS.

A. The actions of the Commissioners were discretionary in nature.

A requirement of bringing a petition for writ of mandamus against a public

official is that the act performed must be ministerial in nature. State ex rel. Vance v.

Routt, 571 S.W.2d 903, 907 (Tex.Cr.App. 1978). The actions performed by the Smith

County Commissioners in dealing with budgetary matters are decisions for which

they have a broad range of discretion. “The adoption of a policy by a commissioners

court is legislative in nature because it reflects a discretionary, policymaking decision

of general application.” Brown v. Lubbock Cnty. Comm'rs Court, 185 S.W.3d 499,

505 (Tex. App.-Amarillo 2005, no pet.) (emphasis added); see In re Perry, 60 S.W.3d

857, 860 (Tex. 2001). A commissioners court has the statutory authority to set and

-16- control the fiscal policies of the county. TEX. LOC. GOV’T. CODE ANN. §§

111.031–111.043 (Vernon 1987 & Supp.1983). “Generally, the allocation of county

funds is a policy-making determination left to the sound discretion of the

commissioners court.” Hooten v. Enriquez, 863 S.W.2d 522, 529 (Tex. App.—El

Paso 1993, no writ) (emphasis added); Weber v. Sachse, 591 S.W.2d 563

(Tex.Civ.App.—Dallas 1979, writ dism'd); Commissioners Court of Caldwell County

v. Criminal Dist. Attorney, Caldwell County, 690 S.W.2d 932, 933-34

(Tex.App.—Austin 1985, writ ref'd n.r.e.). A commissioners court has such a high

level of discretion in setting the fiscal budget for the county that the commissioners

court in essence “acts as part of the legislative branch of state government when it

makes a county budget.” Commissioners Court of Shelby County v. Ross, 809

S.W.2d 754, 757 (Tex.App.—Tyler 1991, no writ); Randall County Commissioners

Court v. Sherod, 854 S.W.2d 914, 921(Tex. App.—Amarillo 1993, no writ). There

is no doubt that the county commissioners have the “power of the purse strings.”

TEX. ATT'Y GEN. OP. NO. JC-0214 (2000) at 2. “In carrying out the legislative

function of budget-making, the commissioners court has significant freedom of

action.” Id. at 4. (emphasis added).

The order of the Smith County Commissioners Court that forms the basis for

Appellants’ claims stems from a policy decision made by the Commissioners

-17- pertaining to the budget for the 2013 fiscal year. In setting this budget and ensuring

that expenditures do not exceed available funds, the Commissioners are given a broad

range of discretion. In their order, the Commissioners do nothing more than exercise

their discretion in limiting the amount of funding given to the 321st Judicial District

Court. There is absolutely nothing ministerial about a commissioners court’s decision

to determine how much funding should go to a particular district court. Such a

decision is completely discretionary in nature. Since the matter before this Court

centers around discretionary decisions pertaining to the budget set by the

Commissioners, mandamus is not appropriate.

B. Appellants have an adequate remedy at law, other than mandamus, by potentially filing suit in district court.

Mandamus is an extraordinary remedy and is not appropriate in this matter,

because Appellants have an adequate remedy at law by potentially filing suit in

District Court. In addition to the requirement that an act be ministerial in nature for

mandamus relief to be appropriate, the party seeking such relief must prove that they

have no other adequate remedy at law. State ex rel. Vance, 571 S.W.2d at 907.

Appellants’ entire basis for their argument that they do not have an adequate remedy

at law stems from the Court of Criminal Appeals decision in Smith v. Flack that there

was not an adequate remedy at law for criminal defense attorneys who were not paid

-18- by the county for representation of indigent defendants. 728 S.W.2d 784, 789 (Tex.

Crim. App. 1987). First and foremost, Appellants rely upon a case from the Court of

Criminal Appeals, despite the fact that the nature of the services they rendered

pertained to civil law matters. In addition, the decision in Smith had absolutely

nothing to do with Section 107.105 of the Texas Family Code dealing with payment

for services rendered by appointed ad litem attorneys. Interestingly, Appellants ask

this Court to rely upon the factually distinguishable case of Smith, when it was the

Court of Criminal Appeals in Smith that held that the determination of whether an

adequate remedy at law exists must be made on a case by case basis. Id. at 792.

The rationale behind the decision in Smith was clearly unique to that particular

case and was based upon policy considerations which are of no consequence to the

matter now before this Court. The basis for determining that there was not an

adequate remedy at law available to the criminal attorneys in Smith was based upon

two different policy considerations. First, the Court in Smith held that if court-

appointed criminal defense attorneys were “forced to pursue the circuitous route of

a suit in court to establish [their] claim[s], with the expense and delay necessarily

incident to such a course[,] then the important function of court-appointed attorneys

in our criminal justice system could be seriously compromised before relief arrives.”

Id. at 793. Such a policy concern is not at issue in the context of family law matters

-19- in Smith County, Texas. The 321st District Court has been assigned nine contract

attorneys, as opposed to the other district court’s three contract attorneys, to handle

any and all family law matters. The 321st District Court is certainly not in danger of

not having enough attorneys for which it can appoint matters to in family law cases.

Secondly, the Court of Criminal Appeals in Smith recognized that since the

claims that would be brought pertained to representation of criminal defendants,

“relators would be forced to seek relief in a criminal law matter before civil law

forums, despite the fact that this Court is the final arbiter of criminal law matters.”

Id. Obviously, this concern is of no consequence to the matter now before this Court.

The claims made by Appellants center around their representation of clients in civil

law matters and potential relief sought by Appellants through suit would be in a “civil

law forum.” Id.

In the absence of such specific policy concerns, the appropriate remedy for a

county allegedly not compensating an individual for his or her services is through suit

in a district court. Harris v. Jones, 8 S.W.3d 383, 386-87 (Tex. App.—El Paso 1999,

no writ) (holding that where county auditor refused to sign a check for back pay

approved by the commissioners court, such a “case does not fit within the narrow

exception to the rule established in Smith” and suit in district court was an adequate

legal remedy.); Smith v. McCoy, 533 S.W.2d 457, 461 (Tex. App.—Dallas 1976, writ

-20- dism’d). The facts in play in the case before this Court do not fall within the “narrow

exception” of Smith. Since Appellants have an adequate remedy at law through suit

at the district court level, they are not entitled to the extraordinary remedy of

mandamus relief.

III. APPELLANTS’ WRIT OF MANDAMUS IS BARRED BY LEGISLATIVE AND GOVERNMENTAL IMMUNITY.

A. The Commissioners are entitled to absolute legislative immunity.

As explained at length above, the actions of the Commissioners in budgetary

matters is a discretionary, legislative function. Legislative immunity protects

individuals from personal liability for actions performed in their legislative capacity.

In re Perry, 60 S.W.3d at 860. The purpose of legislative immunity is to prevent

lawsuits from interfering with the legislative process. See Supreme Court v.

Consumers Union of the United States, Inc., 446 U.S. 719, 731, 100 S.Ct. 1967, 64

L.Ed.2d 641 (1980). Courts have extended the legislative immunity doctrine to cover

not only state and federal legislators, but also “other individuals performing

legitimate legislative functions.” In re Perry, 60 S.W.3d at 860. “A commissioners

court in passing its orders functions in a legislative capacity and is therefore

absolutely immune.” Merill v. Carpenter, 867 S.W.2d 65, 68 (Tex. App.— Fort

Worth, 1993, writ denied); see Consumers Union of the United States, Inc., 446 U.S.

-21- at 731; Collin County, Tex. v. Homeowners Ass'n for Values Essential to

Neighborhoods, 654 F.Supp. 943, 949 (N.D.Tex.1987). Since the Commissioners

were performing a clearly legislative function pertaining to budgetary matters, they

are entitled to absolute legislative immunity.

B. The Commissioners are entitled to governmental immunity because there is no question that Appellants seek retrospective monetary damages.

Governmental immunity operates like sovereign immunity to afford similar

protection to subdivisions of the State. Wichita Falls State Hosp. v. Taylor, 106

S.W.3d 692, 694 n. 3 (Tex.2003) (recognizing that sovereign immunity and

governmental immunity are distinct concepts although courts often use the terms

interchangeably). Under the doctrine of governmental immunity, a governmental

entity may only be sued with the express consent of the legislature. See City of

Houston v. Houston Firefighters’ Relief & Retirement Fund, 196 S.W.3d 271, 277

(Tex.App.-Houston [1st Dist.] 2006, no pet.). In the absence of such a waiver of

governmental immunity by the legislature, a governmental unit possesses both

immunity from suit and immunity from liability. See Texas Dept of Transp v. Jones,

8 S.W.3d 636, 638 (Tex. 1999); Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d

704, 705 (Tex.2003); Texas Natural Resource Conservation Com’n v. It–Davy, 74

S.W.3d 849, 853 (Tex. 2002); Texas Dep't of Parks & Wildlife v. Miranda, 133

-22- S.W.3d 217, 224 (Tex.2004); Channelview Indep. Sch. Dist. v. A.R.C.I., Ltd., 199

S.W.3d 556, 559 (Tex.App.-Houston [1st Dist.] 2006, no pet.).

A suit against a governmental official in his or her official capacity is the same

as a suit against the governmental body which the official represents. Tex. A&M

Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007). Because a suit against a

county commissioner is a suit against a county itself, the commissioner, in his or her

official capacity, is entitled to the defense of governmental immunity. Catalina

Development, Inc. v. Cnty. of El Paso, 121 S.W.3d 704, 705 (Tex. 2003). “A county

and its agents, when acting in their official capacity, are governmental units and

immune from suit.” Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248

(Tex.2002); Medina County Commissioners' Court v. Integrity Group Inc., 944

S.W.2d 6, 10 (Tex.App.-San Antonio, 1996, no writ) (holding that individual county

commissioners were entitled to official immunity from suit when carrying out their

functions on the commissioners court).

Such governmental immunity applies to the county and its agents in

proceedings seeking a writ of mandamus. “An original proceeding for a writ of

mandamus brought in a trial court is a civil action subject to trial substantive issues

and rules of procedure as any other civil suit.” City of Seagoville v. Lytle, 227 S.W.3d

401, 411 (Tex. App.—Dallas 2007, no writ); see Guthery v. Taylor, 112 S.W.3d 715,

-23- 720 (Tex.App.-Houston [14th Dist.] 2003, no pet.) citing Anderson v. City of Seven

Points, 806 S.W.2d 791, 792 n. 1 (Tex.1991). As a result, just as the defense of

governmental immunity prevents suit against a governmental entity, it also prevents

the issuance of writs of mandamus.

The Texas Supreme Court has consistently held that when the basis for a suit

against a governmental entity and its agents is recovery of money damages,

governmental immunity is triggered by such suits. In City of Houston v. Williams, the

Texas Supreme Court dealt with a suit brought against the city of Houston by a group

of 321 retired firefighters to recover amounts deducted from payments they received

upon termination of employment. 216 S.W.3d 827, 828 (Tex. 2007). Plaintiffs

alleged that the city improperly calculated these payments and also incorrectly

deducted payments pertaining to overtime. Id. The city raised the defense of

governmental immunity, but the trial court denied the defense, and the court of

appeals affirmed this decision. Id. The court of appeals ruled that the city was not

entitled to governmental immunity because the suit brought against the city asked for

declaratory relief and not money damages. Id. The Texas Supreme Court chose to

look at the remedy stemming from the suit, rather than the type of suit, in determining

if governmental immunity applied: “[P]rivate parties cannot circumvent the State’s

sovereign immunity from suit by characterizing a suit for money damages . . . as a

-24- declaratory-judgment claim.” Id. at 829, citing Tex. Natural Res. Conservation

Comm'n v. IT–Davy, 74 S.W.3d 849, 856 (Tex.2002). In focusing on the remedy for

plaintiffs, the Texas Supreme Court unequivocally stated, “The only injury the retired

firefighters allege has already occurred, leaving them with only one plausible

remedy—an award of money damages.” Id. (emphasis added). The Court went on to

explain that it made no difference that the trial court reserved any determination for

money damages to a later date, because ‘[G]overnmental immunity does not spring

into existence when a damages award is finally made; it shields governments from the

costs of any litigation leading up to that goal.” Id.; see Reata Constr. Corp. v. City

of Dallas, 197 S.W.3d 371, 375 (Tex.2006); IT–Davy, 74 S.W.3d at 860.

The Supreme Court built upon its decision in Williams in City of El Paso v.

Heinrich, 284 S.W.3d 366 (Tex. 2009). The question at issue in Heinrich was

whether governmental immunity applied to the city and its city actors when the claim

alleged that the city actor, “acted without legal authority or failed to perform a purely

ministerial act.” Id. at 372 (emphasis added). In analyzing this type of claim , which

is the same claim made by Appellants in the matter before this Court, the Texas

Supreme Court held that only those claims for “prospective injuctive relief” are

allowed against a governmental entity and its agents. Id. at 376. The Court again

emphasized that even if a governmental actor was at fault for not performing a purely

-25- ministerial act, claims asking for a “retrospective remedy” in the form of monetary

damages were not proper, and the governmental actor was entitled to official

immunity. Id. (emphasis added).

After the rulings in Williams and Heinrich, court of appeals throughout Texas

began applying the concept of governmental immunity where governmental entities

and their actors were sued for money damages for not performing ministerial acts in

which no discretion was involved. This very issue was dealt with soon after the

Texas Supreme Court’s ruling in Williams by the Dallas Court of Appeals in the case

of City of Seagoville v. Lytle, 227 S.W.3d 401 (Tex. App.—Dallas 2007, no pet.). In

this case, the court of appeals was faced with a mandamus action brought by a former

police captain against the city and various city officials. Id. at 409. The basis for

such claim was that the city council had not followed the rules set out in Texas

Government Code Sections 614.022 and 614.023 pertaining to disciplinary actions

against police officers. Id. at 411. The court held that these sections of the

government code delineated the duty to be performed by the official with sufficient

certainty that nothing was left to the exercise of discretion; and thus, compliance with

those provisions was a ministerial act. Id. Despite determining that the act was

ministerial, the court did not stop there in its analysis of whether governmental

immunity applied to the defendants. Following the reasoning set forth in Williams,

-26- the court of appeals focused upon the actual remedy that was sought by the plaintiff,

rather than the fact that the writ of mandamus was couched in terms of injunctive

relief. Id. The court realized that the cases that had allowed mandamus relief in the

form of monetary compensation through back pay and benefits were all done before

the Texas Supreme Court’s ruling in Williams: “However, the opinions of the Texas

courts of appeals allowing mandamus relief against a governmental unit that included

an award of back pay and benefits, pre-date the recent per curiam opinion in Williams,

where the Texas Supreme Court implicitly held that claims for monetary damages are

barred by immunity unless the legislature expressly waived immunity from suit in

clear and unambiguous language.” Id. citing Williams, 216 S.W.3d at 829. In

adhering to Williams, the court of appeals held that even when dealing with a

governmental entity’s exercise of a clearly ministerial act under the Local

Government Code, mandamus is not appropriate where the mandamus seeks relief in

the form of money damages. “However, the portion of Lytle's petition for mandamus

that seeks back pay is a claim for money damages and is barred by governmental

immunity. Further, to the extent Lytle's request for mandamus seeks a money

judgment for the unspecified, back benefits, that claim is also barred by governmental

immunity.” Id.

The court of appeals in Hinojosa v. Tarrant County also dealt with a situation

-27- in which mandamus relief was sought for the action of the county and a county

official in the performance of a nondiscretionary act. 355 S.W. 3d 812, 814 (Tex.

App—Amarillo 2011, no pet.). Plaintiff worked for the district clerk and based upon

a budget reorganization, his position was terminated. Id. Rules promulgated by

Tarrant County for reductions of force stated that when certain types of employees

are considered for layoff, layoff ratings are calculated and the employee with the

lowest rating is laid off. Id. Despite this rule, it was determined that no layoff rating

needed to be calculated before the termination of Hinojosa. Id. In response, Hinojosa

filed a grievance with the civil service commission who determined that such layoff

ratings should have been calculated and ordered that back pay be given to Hinojosa.

Id. Hinojosa petitioned the district court for mandamus in order to force the county

and district clerk to follow the civil service commission’s order. Id. The trial court

held that the clerk and the county were entitled to immunity from the requested

mandamus relief sought by Hinojosa. Hinojosa appealed the trial court’s decision.

Id. In analyzing the issue of whether or not immunity applied to the county and the

clerk, the court cited to the case that Appellants rely heavily upon in their brief,

Vondy v. Commissioners Court, for the proposition that “a writ of mandamus may

issue in a proper case to correct a clear abuse of discretion by a public official.” Id.

at 816 citing Vondy v. Commissioners Court, 620 S.W.2d 104, 109 (Tex.1981).

-28- However, the court of appeals also cited to Lytle for the fact that “mandamus will not

issue to compel payment by the State of money damages.” Id. citing Lytle, 227

S.W.3d at 411. Just like the court in Lytle, the court of appeals in Hinojosa turned to

the Texas Supreme Court’s ruling in Williams when dealing with a petition for

mandamus seeking monetary relief. “Of relevance here, the court in Williams noted,

“[t]he only injury the [the claimants] allege has already occurred, leaving them with

only one plausible remedy—an award of money damages.” Id. citing Williams 216

S.W.3d at 829. Even though the county and it’s officials were faced with an order

to pay benefits to the plaintiff, not following such order still did not warrant

mandamus, because “[n]otwithstanding the nature of the remedy employed, this was

simply a claim for payment of money damages asserted against a governmental entity

and its officer.” Id. at 817. As such, the court concluded that the county and the clerk

were entitled to immunity and denied plaintiff the requested mandamus relief. Id. at

818.

In no case is the issue of immunity from mandamus relief more applicable to

the matter before this court, than the case of Kaufman County v. Combs, 393 S.W.3d

336 (Tex. App.—Dallas 2012, pet. denied). This matter originally arose from a

guardianship proceeding in which the plaintiff, Combs, was appointed as an attorney

ad-litem and guardian of the estate for an adult who was incapacitated. Id. at 339.

-29- In connection with these services, Combs filed an application for fees and expenses

stemming from her service as an ad litem and guardian with the guardianship court.

Id. The guardianship court issued a written order that Combs be paid $143,168.95

in expenses for her services as an ad litem and guardian. Id. at 339-40. Combs

submitted the invoice to the county auditor for approval. Id. at 340. The auditor did

not present the invoice to the commissioners court, because she did not receive

backup documentation from Combs. Id.

Combs filed suit against the County judge, commissioners, and Auditor in their

official capacities and also sought mandamus relief requiring that the county pay the

expenses she incurred as an ad litem and guardian. Id. Comb’s basis for such

mandamus relief requiring the commissioners court to pay for the expenses was

Section 669 of the Texas Probate Code. Id. This section entitled “Costs Against

Guardianship” provides that the cost of the proceeding, including the cost of the

guardian ad litem or court visitor, “shall be paid out of the guardianship estate, or, if

the estate is insufficient to pay for the cost of the proceeding, the cost of the

proceeding shall be paid out of the county treasury.” TEX. PROB.CODE ANN. § 669(a)

(West 2003). The trial court originally dismissed the claims based upon the argument

that the court lacked subject matter jurisdiction to enforce the fee order, because the

guardianship court never obtained subject matter jurisdiction over the underlying

-30- guardianship. Combs, 393 S.W.3d at 340. The court of appeals reversed the decision

of the trial court and remanded the case to the trial court. Id. At the trial court level,

Combs raised several issue all based upon the mandatory “shall” language in 669(a)

of the Probate Code. Combs filed, “Plaintiff's Third Amended Petition For

Declaratory Judgment, Injunction, and Writ of Mandamus.” Id. at 340 (n.5). Count

one of her petition was entitled, “Violation of the 1996 Order, the Fee Order and

Texas Probate Code § 669(a).” Id. Under count one, Combs alleged violations of the

fee order and section 669(a) of the probate code. Id. (emphasis added). Count two,

entitled “Declaratory Relief,” requested a declaratory judgment “that the Fee Order

(a) is binding upon Kaufman County without further review, consideration, decision,

action or vote by the Auditor and/or the Commissioners Court, and (b) must be paid

by Kaufman County pursuant to [section 669] and/or otherwise...” Id. (emphasis

added). Count seven, entitled “Writ of Mandamus,” sought a writ of mandamus

compelling appellants “to do the ministerial act required by...Tex. Probate Code §

669(a)...” Id. (emphasis added). Based upon these arguments pertaining to the

“shall” language in section 669(a), the trial court rendered a judgment in favor of

Combs in the amount of $143,168.95 which was the full amount of the expenses

occurred plus interest and attorney’s fees. Id. at 341. Subsequent to this ruling, the

County and the county officials who were sued in their official capacities appealed

-31- this decision arguing that they were entitled to governmental immunity. Id. at 342.

The fact that the code section stated “shall pay out of the county treasury” was of no

importance to the court of appeals. Rather the Dallas Court of Appeals started its

analysis just like every other court faced with mandamus relief in the form of

monetary damages, brought against a county and county officials, by turning to the

Texas Supreme Court’s ruling in Williams: “Governmental immunity is not waived

for lawsuits seeking retrospective monetary relief and private parties cannot

circumvent the government entity's immunity by artfully characterizing a suit for

money damages as a declaratory judgment claim.” Id. at 343 citing Heinrich, 284

S.W.3d at 368-71; Williams, 216 S.W.3d at 828–29. Combs argued, in the exact same

manner as Appellant in this case, that the county and its agents were not entitled to

immunity because her suit and request for mandamus relief was based upon “seeking

relief against government actors who allegedly violated section 669(a) by failing to

perform the purely ministerial act of paying the fee order without any additional

review, action, or vote by the county auditor or commissioners court.” Id. The court

turned to Heinrich in approaching this particular argument made by Combs, which

is the exact same argument made by Appellants in the matter now before this Court:

By her lawsuit, Combs asserts section 669(a) of the probate code requires the County to pay the 2002 fee order. Notwithstanding her requests for declaratory and mandamus relief, Combs's claim is simply

-32- for payment of money damages asserted against a governmental entity and its agents. The only injury that Combs has alleged, failure of the County to pay the full amount of the fee order without further review, has already occurred, leaving her with only one plausible remedy-an award of money damages... Heinrich makes clear that only prospective and not retrospective relief is available for such a claim....Specifically, Combs is not seeking a right to payments from the County in the future but payment from the County for fees that she was awarded in 2002 when the fee order was rendered...Because Combs sought no prospective relief, her declaratory judgment claims as well as her request for a writ of mandamus are barred by governmental immunity...

Id. Appellants’ Brief leaves absolutely no doubt that the Appellants are asking for

retrospective monetary relief in the form of payments for services rendered in the

past:

The relief sought. This Court should reverse and remand, with instructions that the district court: (1)calculate what the Appellants are owed, in accordance with the invoices submitted to the County Auditor by the 321st District Court; and (2) issue a writ of mandamus compelling the Smith County Commissioner’s Court and its members to direct payment to appellants for the amount owed.

Appellants’ Brief at 4. The relief sought by Appellants is the very essence of

retrospective monetary relief; the very relief that is not allowed under the doctrine of

governmental immunity as explained by the Texas Supreme Court and various court

of appeals, and Combs in particular. Just like Combs, Appellants performed a service

as an attorney and asked for compensation from the court. Just like Combs, a court

issued an order authorizing payment for Appellants for the services rendered as

-33- attorneys. Just like Combs, Appellants rely upon a statute which states that the

services “shall” be paid from county funds as the basis for their writ of mandamus.

Jut like Combs, Appellants argue that this was a ministerial act for which the county

commissioners were not entitled to governmental immunity. And most importantly,

just like Combs, Appellants are asking for retrospective monetary relief. Considering

the analogous facts between Combs and the case now before this Court, Appellees

urge this court to follow the line of reasoning in Combs and all the cases upon which

that reasoning relies, and deny Appellants writ of mandamus which seeks nothing

more than retrospective money damages.

CONCLUSION AND PRAYER

Appellants’ claims against the Commissioners are moot because they require

the Commissioners Court to perform an action not allowed under the Texas

Constitution or the Texas Local Government Code by asking them to amend the

expired 2013 budget in order to compensate Appellants for expenses they incurred

during the 2013 fiscal year. Even if this Court determines that Appellants’ claims are

ripe, a petition for writ of mandamus is not the proper procedure to bring forth such

claims. Appellants’ claims focus on the Commissioners’ discretionary actions in

budgetary decisions; and thus, such decisions are not ministerial in nature. In

addition, due to the nature of Appellants’ claims, Appellants have a adequate remedy

-34- at law by bringing suit in a district court. Finally, Appellants’ Petition for Writ of

Mandamus is barred by absolute legislative immunity, because the Commissioners’

actions pertaining to setting fiscal policy is considered a legislative act. Even if the

Commissioners are not entitled to absolute legislative immunity, they are most

certainly entitled to governmental immunity, since Appellants seek retrospective

monetary damages.

Respectfully submitted,

FLOWERS DAVIS, P.L.L.C. 1021 ESE Loop 323, Suite 200 Tyler, Texas 75701 (903) 534-8063 (903) 534-1650 Facsimile

ROBERT S. DAVIS State Bar No. 05544200 rsd@flowersdavis.com

ATTORNEYS FOR APPELLEES SMITH COUNTY COMMISSIONERS COURT; JOEL P. BAKER; CARY NIX; JEFF WARR; JOANN HAMPTON; AND TERRY PHILLIPS

-35- CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4, I certify that this brief

contains no more than 7,560 words.

_____________________________ Robert S. Davis

CERTIFICATE OF SERVICE

I hereby certify that the above and foregoing instrument was served upon all

counsel of record in the above entitled and numbered cause on March 2, 2015, in the

following manner:

X Via CM/RRR: 7013 3020 0001 2074 4226

_____________________________ Robert S. Davis

-36-