Guerra v. McClellan

243 S.W.2d 715, 1951 Tex. App. LEXIS 1744

• Court: Court of Appeals of Texas
• Decided: October 24, 1951
• Docket: 12359
• Status: Published

Opinions

NORVELL, Justice.

This is an appeal from an order denying a temporary injunction. It is the primary contention of appellant, plaintiff below, that certain expenditures of county funds are being made in contravention of the Uniform Budget Law, Articles 689a-9— 689a-12, Vernon’s Ann.Civ.Stats.

In the order appealed from, it was recited as a basis for the court’s action, that “plaintiff’s petition states no cause of action 'entitling him to the temporary injunctive relief therein prayed for and fails to show any irreparable injury, loss, or damage that will be suffered by plaintiff should the temporary injunction prayed for be denied.”

While the court’s action is apparently predicated upon the pleadings, it appears that evidence was adduced at the hearing upon plaintiff’s application for injunction. From both the pleadings and the evidence it appears that plaintiff was .a taxpayer of Starr County. As such, he could maintain a suit to restrain the paying out of county funds in violation of the budget law. This Court so held in Dancey v. Davidson, Tex.Civ.App., 183 S.W.2d 195, wr. ref.; and Hatley v. Bexar County, Tex.Civ.App., 144 S.W.2d 695, rev. on other grounds; Bexar County v. Hatley, 136 Tex. 354, 150 S.W.2d 980.

As this is not an appeal from a final judgment, it seems that many of the matters discussed in the briefs are unnecessary to a disposition of this appeal, although they might become material upon a final trial of the case. A showing that the expenditures were not being made in accordance with the 1951 budget would authorize the issuance of a temporary injunction. Such showing was made upon the hearing below and the. trial court erred in refusing to grant the temporary relief prayed for.

It is undisputed that on January 25, 1951, the Commissioners’ Court of Starr County entered an order raising the salaries of various county officers. By way of example, although admittedly incomplete, the 'following schedule shows the difference between the amounts designated in the 1951 budget adopted September 11, 1950, compared with those set forth in the order of January 25, .1951.

Sept. 11, 1950 Jan. 25, 1951

Tax Collector & Assessor’s salary. $ 3,750. $ 4,500.

Tax Collector & Assessor’s Regular Deputy’s salary.. $ 2,850. $ 6,000.

District Clerk’s salary. $ 2,400. $ 3,000.

District Clerk’s assistants’ and deputies’ salaries. $ 1,080. $ 2,580.

County Clerk's salary. $ 3,600. $ 4,500.

County Clerk’s deputies’ and assistants’ salaries. $ 3,400. $ 6,240.

Sheriff,—deputies’, assistants’, and other employees’ salaries . $15,500. $16,924.

It is asserted by appellees that this order raising salaries, together with an order adopted by the Commissioners’ Court on January 11, 1951, served to effect a valid amendment of the 1951 budget. The order of January 11th contains no recitations or findings as to the existence of an emergency or a state of facts which would authorize a budget amendment, nor does it relate in any way to salaries or the other items in dispute here. It is our conclusion that no valid amendment of the budget was effected by said order. Article 689a-11; Bexar County v. Hatley, 136 Tex. 354, 150 S.W.2d 980.

By means of a motion to dismiss, it is shown that on August 16, 1951, the Commissioners’ Court of Starr County adopted an amendment to the 1951 budget (adopted on September 11, 1950). This order refers to and seeks to amplify the order of January 11, 1951. According to the recitations appearing in the order appealed from, it appears that this cause went to trial on July 25, 1951, and that the order refusing the temporary injunction was signed on August 15, 1951. The amended budget was therefore not a part of the record passed upon by the trial court. It is asserted by appellees, however, that said budget amendment of August 16, 1951, renders this appeal moot. Undoubtedly, in determining our jurisdiction, we may inquire into matters outside the record in the case. We have no jurisdiction to decide moot causes and it may be shown by affidavit or otherwise that a judgment has been paid off and discharged, although an appeal was perfected therefrom. Rule 406, Texas Rules of Civil Procedure; Travis County v. Matthews, Tex.Civ.App., 221 S.W.2d 347. In the present case, the appellant ha's filed a reply to the motion to dismiss in which he traverses the allegations of fact set out therein and questions the legality of the purported amendment of August 16, 1951. In view of this situation we cannot declare the cause moot and dismiss the cause.

Other considerations are advanced by appellant as bases for the temporary injunction, which we need not discuss in view of the disposition made of this appeal.

The order appealed from is reversed and this cause remanded to the district court with instructions to issue a temporary injunction restraining appellees from paying out sums of money not provided for by the 1951 budget of Starr County adopted on September 11, 1950. This order will be entered without prejudice to the right of appellees to urge the legality of tile August 16, 1951, order amending the budget as the basis of a motion to dissolve the temporary injunction or urge the same as a defense to appellant’s suit upon a trial of the merits.

Reversed and remanded with directions.