Third Court of Appeals dismisses interlocutory appeal of temporary injunction after entry of final order granting permanent injunction.
Walter Lee Hall, Jr.; KWI Legal Defense Fund; and KWI Communications LLC d/b/a KWI Hold,
No.03-07-00465-CV (Tex.App.- Austin, Dec. 13, 2007)(Opinion by Justice Puryear )(temporary injuction interlocutory appeal) (Before Justices Patterson, Puryear and Pemberton)
Appeal from 53rd District Court of Travis County
Disposition: Dismissed for want of jurisdiction (DWOJ)
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-07-001548, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellants filed an appeal from the trial court's granting of a temporary injunction in favor of appellee. Appellee has since filed a motion to dismiss the appeal, attaching a copy of a final judgment signed by the trial court on September 14, 2007, imposing a permanent injunction against appellants and terminating the temporary injunction at issue in this appeal. The supreme court has held that "[i]f, while on the appeal of the granting or denying of the temporary injunction, the trial court renders final judgment, the case on appeal becomes moot. When a case becomes moot on appeal, all previous orders pertaining to the temporary injunction are set aside by the appellate court and the case is dismissed." Isuani v. Manske-Sheffield, 802 SW2d 235, 236 (Tex. 1991) (citations omitted).
We therefore dismiss the appeal for want of jurisdiction. Tex. R. App. P. 42.3(a).
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Dismissed for Want of Jurisdiction
Filed: December 13, 2007
Thursday, December 13, 2007
Tuesday, December 11, 2007
Save Our Springs Alliance v. City of Dripping Springs (Tex.App. Austin 2007)
Save Our Springs Alliance v. City of Dripping Springs; Todd Purcell, in his Official Capacity as Mayor of the City of Dripping Springs; and Mak Foster Ranch, L.P., No. 03-04-00683-CV (Tex.App.- Austin, Dec. 7, 2007)(Opinion by Chief Justice Law ) (bankruptcy abatement) (Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 207th District Court of Hays County
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 02-1748, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Save Our Springs Alliance (SOS) has moved to abate the proceedings in this appeal. Although SOS filed for bankruptcy protection, this appeal proceeded under a lift of the automatic stay by the bankruptcy court (In re Save Our Springs Alliance, Inc., No. 07010642-FM, United States Bankruptcy Court, Western District of Texas, Austin Division, Chapter 11). That court has now approved a settlement agreement between SOS and Mak Foster Ranch, L.P. Part of that agreement requires an abatement of this case for the parties to complete certain conditions precedent before a dismissal of SOS's claims against Mak Foster Ranch. We grant the motion to abate. SOS should file a status report thirty days after the date of this opinion informing the Court about the progress made toward fulfilling the conditions precedent. At that time, SOS should also inform us concerning the effect, if any, of the bankruptcy settlements (1) on SOS's claims against the City of Dripping Springs and Todd Purcell in his capacity as mayor. (2)
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Abated
Filed: December 7, 2007
1. SOS has dismissed its claims against Cypress-Hays, L.P., who is no longer a party to this case. See Save Our Springs Alliance v. City of Dripping Springs, No. 03-04-683-CV, slip. op., (Tex. App.--Austin Dec. 7, 2007) (order).
2. SOS has also filed a motion to expedite our ruling on the motion to abate. Inasmuch as the certificate of conference on the motion to abate noted that counsel for the City of Dripping Springs and Todd Purcell did not agree to the motion to abate, we waited until the expiration of the ten-day response period. See Tex. R. App. P. 10.3(a). No response indicating a reason for opposition has been filed. As we are now ruling on the motion to abate, the motion to expedite is dismissed as moot.
Appeal from 207th District Court of Hays County
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 02-1748, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Save Our Springs Alliance (SOS) has moved to abate the proceedings in this appeal. Although SOS filed for bankruptcy protection, this appeal proceeded under a lift of the automatic stay by the bankruptcy court (In re Save Our Springs Alliance, Inc., No. 07010642-FM, United States Bankruptcy Court, Western District of Texas, Austin Division, Chapter 11). That court has now approved a settlement agreement between SOS and Mak Foster Ranch, L.P. Part of that agreement requires an abatement of this case for the parties to complete certain conditions precedent before a dismissal of SOS's claims against Mak Foster Ranch. We grant the motion to abate. SOS should file a status report thirty days after the date of this opinion informing the Court about the progress made toward fulfilling the conditions precedent. At that time, SOS should also inform us concerning the effect, if any, of the bankruptcy settlements (1) on SOS's claims against the City of Dripping Springs and Todd Purcell in his capacity as mayor. (2)
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Abated
Filed: December 7, 2007
1. SOS has dismissed its claims against Cypress-Hays, L.P., who is no longer a party to this case. See Save Our Springs Alliance v. City of Dripping Springs, No. 03-04-683-CV, slip. op., (Tex. App.--Austin Dec. 7, 2007) (order).
2. SOS has also filed a motion to expedite our ruling on the motion to abate. Inasmuch as the certificate of conference on the motion to abate noted that counsel for the City of Dripping Springs and Todd Purcell did not agree to the motion to abate, we waited until the expiration of the ten-day response period. See Tex. R. App. P. 10.3(a). No response indicating a reason for opposition has been filed. As we are now ruling on the motion to abate, the motion to expedite is dismissed as moot.
Covert v. Williamson Central Appraisal District (Tex.App.- Austin 2007)
Rox Covert, Duke Covert and Danay Covert v. Williamson Central Appraisal District, No. 03-06-00218-CV (Tex. App. - Austin, Nov. 30, 2007) (Opinion by Justice Henson)(property tax protests, cases, appeals) (Before Chief Justice Law, Justices Puryear and Henson)
Appeal from 277th District Court of Williamson County
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 01-466-C277, HONORABLE KEN ANDERSON, JUDGE PRESIDING
O P I N I O N
In this appeal, we decide whether a taxpayer is entitled under section 42.26 of the tax code to challenge only the land component of an ad valorem property tax appraisal of improved land, without claiming that the total appraised value of the property is unequal. See Tex. Tax Code Ann. § 42.26(a)(3) (West Supp. 2007). (1) Appellants Rox Covert, Duke Covert and Danay Covert sued Williamson Central Appraisal District ("WCAD") (2) in district court, challenging WCAD's appraisal of five separate tracts of land, three of which are improved with car dealerships, on the grounds that they were not appraised equally and uniformly. See Tex. Const. art. VIII, § 20; Tex. Tax Code Ann. § 42.26(d) (West 2001). WCAD filed a special exception, contending that the Coverts' pleadings failed to state a cause of action with respect to the three improved properties because the Coverts had alleged that only the land components, and not the entire properties, had been appraised unequally. The trial court granted WCAD's special exception and ordered the Coverts to replead. The Coverts refused, and their case was dismissed. The sole issue on appeal is whether the trial court erred in granting WCAD's special exception and in dismissing the claims after ruling that the Coverts had omitted an element of their cause of action, namely that their property was appraised unequally under section 42.26 of the tax code. Holding that the trial court did not err because the statute requires a taxpayer to challenge the appraised valuation of the entire improved property and not merely its component values, we affirm.
* * *
We therefore hold that a taxpayer challenging the equal and uniform assessment of an improved property under section 42.26 must allege that the overall appraised value of the property is unequal. While he is not prevented from bringing evidence that only the land or only the improvement was unequally assessed, the taxpayer must allege that the value of the improved property was appraised unequally in order to state a cause of action under section 42.26.
CONCLUSION
Because the trial court did not err in granting the dismissal, we affirm.
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: November 30, 2007
Appeal from 277th District Court of Williamson County
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 01-466-C277, HONORABLE KEN ANDERSON, JUDGE PRESIDING
O P I N I O N
In this appeal, we decide whether a taxpayer is entitled under section 42.26 of the tax code to challenge only the land component of an ad valorem property tax appraisal of improved land, without claiming that the total appraised value of the property is unequal. See Tex. Tax Code Ann. § 42.26(a)(3) (West Supp. 2007). (1) Appellants Rox Covert, Duke Covert and Danay Covert sued Williamson Central Appraisal District ("WCAD") (2) in district court, challenging WCAD's appraisal of five separate tracts of land, three of which are improved with car dealerships, on the grounds that they were not appraised equally and uniformly. See Tex. Const. art. VIII, § 20; Tex. Tax Code Ann. § 42.26(d) (West 2001). WCAD filed a special exception, contending that the Coverts' pleadings failed to state a cause of action with respect to the three improved properties because the Coverts had alleged that only the land components, and not the entire properties, had been appraised unequally. The trial court granted WCAD's special exception and ordered the Coverts to replead. The Coverts refused, and their case was dismissed. The sole issue on appeal is whether the trial court erred in granting WCAD's special exception and in dismissing the claims after ruling that the Coverts had omitted an element of their cause of action, namely that their property was appraised unequally under section 42.26 of the tax code. Holding that the trial court did not err because the statute requires a taxpayer to challenge the appraised valuation of the entire improved property and not merely its component values, we affirm.
* * *
We therefore hold that a taxpayer challenging the equal and uniform assessment of an improved property under section 42.26 must allege that the overall appraised value of the property is unequal. While he is not prevented from bringing evidence that only the land or only the improvement was unequally assessed, the taxpayer must allege that the value of the improved property was appraised unequally in order to state a cause of action under section 42.26.
CONCLUSION
Because the trial court did not err in granting the dismissal, we affirm.
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: November 30, 2007
Lake Travis ISD v. Lovelace (Tex.App. - Austin 2007)
School District's suit to shut down as nuisance prolific requests under the Open Records Act fails.
Appellant, Lake Travis Independent School District// Cross-Appellants, David Lovelace and Melissa Lovelace v. Appellees, David Lovelace and Melissa Lovelace// Cross-Appellee, Lake Travis Independent School District, No. 03-06-00742-CV (Tex.App.- Austin, Nov. 29, 2007)
(Opinion by Justice Henson )(Open Records Act, Public Information Act, nuisance theory)(Before Chief Justice Law, Justices Waldrop and Henson)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-06-003726, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
O P I N I O N
Lake Travis Independent School District ("District") appeals an order dismissing for lack of jurisdiction its suit against David and Melissa Lovelace alleging common-law claims for public nuisance and abuse of governmental process.
The District sought (1) temporary and permanent injunctions against the Lovelaces to prevent them from submitting requests for public information under the Texas Public Information Act ("PIA") (1) or, in the alternative, a court-ordered procedure applicable to all requests submitted by the Lovelaces modifying the form that their requests would take under the PIA; (2) declarations that the Lovelaces had abused and misused the PIA, that all future requests by the Lovelaces for information pursuant to the PIA shall be governed by a modified, court-ordered process, and that the District would not be in violation of the PIA by complying with the modified process; and (3) actual monetary damages, attorney's fees, and costs. The trial court ruled that the District's suit was barred by section 552.324 of the PIA, and the District appeals. See Tex. Gov't Code Ann. § 552.324 (West 2004). The Lovelaces bring a cross-appeal from the trial court's order denying them attorney's fees. For the reasons that follow, we affirm.
* * *
CONCLUSION
Because we find that the legislature specifically precluded suits against requestors of public information and that the appropriate remedy for abuses related to the PIA must be provided by the legislature within the statutory framework, we affirm the trial court's dismissal. We further hold that the denial of sanctions to the Lovelaces was not an abuse of discretion.
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: November 29, 2007
1. Tex. Gov't Code Ann. §§ 552.001-.353 (West 2004).
2. The SBEC is the agency responsible for the licensing and discipline of certified educators in Texas.
3. Although the Lovelaces complain of the court's failure to award attorney's fees, they essentially contest the trial court's refusal to find that the District's suit was groundless, frivolous, and brought in bad faith or for an improper purpose. Therefore, we refer to the Lovelaces' issue on cross-appeal as the trial court's failure to impose sanctions on the District.
4. From the time the PIA became effective, the legislature has allowed governmental bodies to charge reasonable fees when disclosing information "in an effort to ensure that the governmental body was not overly burdened." See Tex. H.B. 1718, 74th Leg., R.S. (1995) (concerning the revision of open records law). See also Tex. Gov't Code Ann. §§ 552.230 (West Supp. 2006) (providing that a governmental body may promulgate reasonable rules of procedure under which public information may be inspected), .232 (providing procedures for responding to repetitious or redundant requests), .263 (providing that an officer for public information may require a deposit or bond for payment of anticipated costs for the preparation of a copy of public information).
5. Section 552.353 sets forth the consequences for a public information officer's failure to provide access to public information and is not relevant to this discussion. See Tex. Gov't Code Ann. § 553.353 (West Supp. 2006).
6. The suit would be barred even if the District were to withdraw its request for injunctive relief and seek only a modified, court-ordered procedure to apply to the Lovelaces' requests. The effect under that scheme would be to remove the Lovelaces from the system created by the PIA, withholding information specifically from them that would ordinarily be made available under the statute.
7. We also note that the legislature has already begun to implement additional safeguards under the PIA in apparent response to the concerns of this sort of misuse voiced by governmental bodies. See, e.g., the "36-hour rule," Act of May 27, 2007, 80th Leg., R.S., H.B. 2564, § 1 (to be codified at Tex. Gov't Code Ann. § 552.275) (effective Sept. 1, 2007) (allowing governmental bodies to establish reasonable time limits on the amount of personnel time spent producing or providing copies of public information, not less than 36 hours in a 12-month period).
8. Our holding precludes both of the District's common-law causes of action. Apparently subsumed within its general allegation that the Lovelaces' conduct is a common-law public nuisance and an abuse of governmental process, however, is the District's claim that the Lovelaces misused the District's and the SBEC's complaint procedures. In its brief, the District states, "the District's position was that the Lovelaces' overall approach to requesting documents - the massive number of often simultaneous requests . . . and the internal and external complaints filed under and related to the TPIA - was all part of a concerted effort to harass the District and its employees" (emphasis added). The District did not brief the "misuse of complaint procedures" issue as though it offers a separate basis for subject-matter jurisdiction. Any argument that the District has a common-law claim for public nuisance or abuse of governmental process because of the Lovelaces' misuse of the complaint procedures (unrelated to the PIA) is therefore waived. See Tex. R. App. Proc. 38.1(h); see also GSC Enters., Inc. v. Rylander, 85 S.W.3d 469, 474 (Tex. App.--Austin 2002, no pet.).
9. See Thompson v. Kimbrough, 23 Tex. Civ. App. 350, 57 S.W. 328 (Dallas 1900, writ ref'd). In that case, a school district successfully sued the county for common-law public nuisance to prevent the establishment of a smallpox "pesthouse" near a school building. Id. at 329.
10. Amicus Eanes Independent School District filed a brief in support of the District, discussing similar abuses and costs incurred in that district stemming from requests for public information pursuant to the PIA.
11. The Lovelaces offer no support for their allegation that the District's suit was a strategic lawsuit against public participation, commonly known as a "SLAPP" suit. Black defines a SLAPP suit as "a suit brought by a developer, corporate executive, or elected official to stifle those who protest against some type of high-dollar initiative or who take an adverse position on a public-interest issue." Black's Law Dictionary 1393 (7th ed. 1999). The District contends that it has fully complied with each of the 2,274 requests for public information made by the Lovelaces, and the Lovelaces have not pointed us to any evidence to the contrary. Nor does the record contain any indication that the District intended to stifle the Lovelaces because of the position the Lovelaces have taken with respect to the "issue" of open government.
Appellant, Lake Travis Independent School District// Cross-Appellants, David Lovelace and Melissa Lovelace v. Appellees, David Lovelace and Melissa Lovelace// Cross-Appellee, Lake Travis Independent School District, No. 03-06-00742-CV (Tex.App.- Austin, Nov. 29, 2007)
(Opinion by Justice Henson )(Open Records Act, Public Information Act, nuisance theory)(Before Chief Justice Law, Justices Waldrop and Henson)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-06-003726, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
O P I N I O N
Lake Travis Independent School District ("District") appeals an order dismissing for lack of jurisdiction its suit against David and Melissa Lovelace alleging common-law claims for public nuisance and abuse of governmental process.
The District sought (1) temporary and permanent injunctions against the Lovelaces to prevent them from submitting requests for public information under the Texas Public Information Act ("PIA") (1) or, in the alternative, a court-ordered procedure applicable to all requests submitted by the Lovelaces modifying the form that their requests would take under the PIA; (2) declarations that the Lovelaces had abused and misused the PIA, that all future requests by the Lovelaces for information pursuant to the PIA shall be governed by a modified, court-ordered process, and that the District would not be in violation of the PIA by complying with the modified process; and (3) actual monetary damages, attorney's fees, and costs. The trial court ruled that the District's suit was barred by section 552.324 of the PIA, and the District appeals. See Tex. Gov't Code Ann. § 552.324 (West 2004). The Lovelaces bring a cross-appeal from the trial court's order denying them attorney's fees. For the reasons that follow, we affirm.
* * *
CONCLUSION
Because we find that the legislature specifically precluded suits against requestors of public information and that the appropriate remedy for abuses related to the PIA must be provided by the legislature within the statutory framework, we affirm the trial court's dismissal. We further hold that the denial of sanctions to the Lovelaces was not an abuse of discretion.
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: November 29, 2007
1. Tex. Gov't Code Ann. §§ 552.001-.353 (West 2004).
2. The SBEC is the agency responsible for the licensing and discipline of certified educators in Texas.
3. Although the Lovelaces complain of the court's failure to award attorney's fees, they essentially contest the trial court's refusal to find that the District's suit was groundless, frivolous, and brought in bad faith or for an improper purpose. Therefore, we refer to the Lovelaces' issue on cross-appeal as the trial court's failure to impose sanctions on the District.
4. From the time the PIA became effective, the legislature has allowed governmental bodies to charge reasonable fees when disclosing information "in an effort to ensure that the governmental body was not overly burdened." See Tex. H.B. 1718, 74th Leg., R.S. (1995) (concerning the revision of open records law). See also Tex. Gov't Code Ann. §§ 552.230 (West Supp. 2006) (providing that a governmental body may promulgate reasonable rules of procedure under which public information may be inspected), .232 (providing procedures for responding to repetitious or redundant requests), .263 (providing that an officer for public information may require a deposit or bond for payment of anticipated costs for the preparation of a copy of public information).
5. Section 552.353 sets forth the consequences for a public information officer's failure to provide access to public information and is not relevant to this discussion. See Tex. Gov't Code Ann. § 553.353 (West Supp. 2006).
6. The suit would be barred even if the District were to withdraw its request for injunctive relief and seek only a modified, court-ordered procedure to apply to the Lovelaces' requests. The effect under that scheme would be to remove the Lovelaces from the system created by the PIA, withholding information specifically from them that would ordinarily be made available under the statute.
7. We also note that the legislature has already begun to implement additional safeguards under the PIA in apparent response to the concerns of this sort of misuse voiced by governmental bodies. See, e.g., the "36-hour rule," Act of May 27, 2007, 80th Leg., R.S., H.B. 2564, § 1 (to be codified at Tex. Gov't Code Ann. § 552.275) (effective Sept. 1, 2007) (allowing governmental bodies to establish reasonable time limits on the amount of personnel time spent producing or providing copies of public information, not less than 36 hours in a 12-month period).
8. Our holding precludes both of the District's common-law causes of action. Apparently subsumed within its general allegation that the Lovelaces' conduct is a common-law public nuisance and an abuse of governmental process, however, is the District's claim that the Lovelaces misused the District's and the SBEC's complaint procedures. In its brief, the District states, "the District's position was that the Lovelaces' overall approach to requesting documents - the massive number of often simultaneous requests . . . and the internal and external complaints filed under and related to the TPIA - was all part of a concerted effort to harass the District and its employees" (emphasis added). The District did not brief the "misuse of complaint procedures" issue as though it offers a separate basis for subject-matter jurisdiction. Any argument that the District has a common-law claim for public nuisance or abuse of governmental process because of the Lovelaces' misuse of the complaint procedures (unrelated to the PIA) is therefore waived. See Tex. R. App. Proc. 38.1(h); see also GSC Enters., Inc. v. Rylander, 85 S.W.3d 469, 474 (Tex. App.--Austin 2002, no pet.).
9. See Thompson v. Kimbrough, 23 Tex. Civ. App. 350, 57 S.W. 328 (Dallas 1900, writ ref'd). In that case, a school district successfully sued the county for common-law public nuisance to prevent the establishment of a smallpox "pesthouse" near a school building. Id. at 329.
10. Amicus Eanes Independent School District filed a brief in support of the District, discussing similar abuses and costs incurred in that district stemming from requests for public information pursuant to the PIA.
11. The Lovelaces offer no support for their allegation that the District's suit was a strategic lawsuit against public participation, commonly known as a "SLAPP" suit. Black defines a SLAPP suit as "a suit brought by a developer, corporate executive, or elected official to stifle those who protest against some type of high-dollar initiative or who take an adverse position on a public-interest issue." Black's Law Dictionary 1393 (7th ed. 1999). The District contends that it has fully complied with each of the 2,274 requests for public information made by the Lovelaces, and the Lovelaces have not pointed us to any evidence to the contrary. Nor does the record contain any indication that the District intended to stifle the Lovelaces because of the position the Lovelaces have taken with respect to the "issue" of open government.
Appraisal District loses appeal in tax protest case
Williamson Central Appraisal District v. Research Park Property Trust, No. 03-06-00746-CV (Tex.App.- Austin, Nov. 28, 2007)(Opinion by Justice Patterson )(ad valorem tax protest, unequal appraisal, commercial property, judicial review suit, motion to exclude expert, waiver) (Before Justices Patterson, Puryear and Pemberton)
Appeal from 26th District Court of Williamson County
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
NO. 04-1106-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Williamson Central Appraisal District appeals the trial court's judgment in favor of Research Park Property Trust in a property tax appraisal case involving alleged unequal taxation of commercial property. The District contends in three issues that the trial court erroneously excluded the testimony of its expert and improperly admitted the testimony of Research Park's expert. Because we conclude that any error in excluding the District's expert was not reversible error and that the trial court did not err in admitting the testimony of Research Park's expert, we affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Research Park in 2004 owned two unimproved tracts of land in Williamson County, tracts R405451 and R405452. (1) The District's 2004 appraised value for tract R405451 was $1,100,415, and for tract R405452, it was $477,635. Research Park brought suit against the District contending that the District, for 2004 tax purposes, unequally appraised the value of the two tracts. By its suit, Research Park sought a reduction in the tracts' appraised values because the values "exceed[ed] the median appraised value[s] of a reasonable number of comparable properties appropriately adjusted." See Tex. Tax Code Ann. § 42.26(a)(3) (West Supp. 2007). (2)
The case was set for trial on April 4, 2006, and the parties conducted discovery under an agreed scheduling order. Both parties timely designated an expert to testify concerning valuation and equality of taxation. The District designated Patrick Brown, a District employee, and Research Park designated James Nuckles. After the discovery period ended, the parties filed motions to exclude the other party's expert. The District contended in its motion that Nuckles did not meet the standards of Texas Rule of Evidence 702 because he was not qualified--he was not a licensed real estate appraiser or designated as a member of the Appraisal Institute--and his opinions were not relevant or reliable. See Tex. R. Evid. 702.
Research Park, similarly relying on Rule 702, contended that Brown's opinions were not reliable because of his employment position with the District and errors in his report. (3) In response to the competing motions and the District's motion to continue the April trial setting, the trial court reset the trial to May 23, 2006, and, after a hearing in April, granted both parties' motions to exclude without stating its grounds in the order. (4)
A few days after the trial court's ruling on the motions to exclude, Research Park filed a motion for leave to designate expert and for the approval of an amended scheduling order or, alternatively, motion for continuance. Research Park also designated Edward Thomas as its expert on the issues of valuation and equality. The District, in response, filed a motion to strike Thomas, contending he was untimely designated under the parties' agreed scheduling order. The trial court held a hearing in May on the parties' competing motions concerning Thomas's designation and discovery deadlines. At the hearing, the trial court ruled that it would allow both sides the time that they needed to conduct discovery, retain new experts, and prepare for trial, including extending the trial setting if necessary:
The Court: The Court's inclined to get this case to trial, and so--and I want both parties armed with experts and [to] be able to prepare a complete presentation to the jury and let the best argument prevail. And so I'm inclined to give you all whatever time you need to do the discovery that you need to do. If that's impossible to do by the May 23rd trial date, then we need to get another trial date and enter a scheduling order that's appropriate for that trial date which will allow both sides to be ready. The law does not favor the death penalty, and I don't favor it, personally. I think that the interests of equity and justice in a general way are served when both sides have an opportunity to present fully the argument that they have to the jury and let them decide the disputed facts.
[District's counsel]: Your Honor, I can tell you that May 23rd won't be sufficient time for the parties to designate new expert, undertake depositions, and be ready for trial on that day.
The Court: Is it trial before the Court?
[District's Counsel]: Yes, sir.
The Court: Then interpose the Court for the comments I made about the jury. So if it is trial before the Court, that means that we're a lot more flexible than we would be if it were a jury trial. You all want to confer about a date, confer with Ms. Wilburn for available dates, and then prepare a scheduling order?
[District's Counsel]: Yes, sir.
The parties ultimately agreed to a first amended scheduling order that the trial court entered in July. The scheduling order specified revised deadlines for designating experts and reset the trial to September. The District thereafter designated David Daniell, another District employee, as its expert on the issues of valuation and equality.
At trial, the parties' experts presented conflicting evidence on the appraised median values of comparable properties adjusted for the tracts. Thomas testified that tract R405451 was unequally appraised as it was a "greenbelt, support, easement tract" and that it was "never meant to be built on" but to support the other tracts in a business park. As a "support" tract, he testified that it should be nominally valued and that the median appraised value of comparable properties with adjustments was $6,297. He testified that the tract ran along the edge of the business park, provided water and drainage runoff and utility easements for nearby tracts, and had a road running through it. Thomas also testified that tract R405452 was unequally appraised and that the median appraised value of comparable properties with adjustments was $286,578. In contrast, Daniell testified that tract R405451 was not a support tract, that it could be developed commercially, and that the median appraised value of comparable properties adjusted for the tract was $1,360,898. As to tract R405452, Daniell testified that the median appraised value of comparable properties with adjustments was $402,169.
The trial court found the District's 2004 values for the tracts exceeded the District's median appraised values of a reasonable number of comparable properties appropriately adjusted. Thus, the trial court found the tracts were unequally appraised. The trial court ordered the District to revise the 2004 appraisal roll to reflect the appraised values Thomas suggested--$6,297 for tract R405451 and $286,578 for tract R405452. The court also awarded attorney's fees to Research Park. The District's appeal followed.
ANALYSIS
The District challenges the trial court's evidentiary rulings on the admission and exclusion of expert testimony. In its first and second issues, the District contends that the trial court erred in excluding the District's expert Brown. In its third issue, the District urges that the trial court improperly admitted the testimony of Research Park's expert Thomas.
Standard of Review
The admission or exclusion of expert evidence is a matter within the trial court's discretion. Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006). A trial court abuses its discretion when it acts without regard to any guiding rules or principles. Id.; City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). To reverse a judgment based on an error in the admission or exclusion of evidence, we must conclude that the error probably resulted in an improper judgment. See Tex. R. App. P. 44.1(a)(1); Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). To make this determination, we review the entire record and usually require the complaining party to demonstrate that the judgment turns on the particular evidence admitted or excluded. Interstate Northborough, 66 S.W.3d at 220; Alvarado, 897 S.W.2d at 753-54. We ordinarily will not reverse a judgment for an erroneous ruling if the evidence in question is cumulative. Interstate Northborough, 66 S.W.3d at 220; Southwestern Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 473-74 (Tex. 1998).
Exclusion of the District's expert
In its first two issues, the District contends that section 6.035 of the tax code does not prohibit a deputy chief appraiser from testifying in a property tax appraisal case and that the trial court erred in granting Research Park's motion to exclude Brown. See Tex. Tax Code Ann. § 6.035(d) (West 2001). Because the District fails to demonstrate that Brown's exclusion probably resulted in an improper judgment, we do not reach section 6.035's applicability to Brown or the propriety of the trial court's ruling granting Research Park's motion to exclude Brown. See Tex. R. App. P. 44.1(a)(1).
The District contends that Brown's exclusion probably resulted in an improper judgment because it affected the District's ability to prepare its case for trial and to present its case fully. The District asserts that it "had to obtain a new expert on the eve of trial" and that its expert Daniell was not as "equipped" as Brown to rebut Research Park's "untimely-designated expert evidence" as Daniell had "fewer credentials and about ten years' less experience appraising and testifying than Brown." The District, however, has waived this claim. See Tex. R. App. P. 33.1(a).
The trial court, at the hearing on the parties' competing motions concerning Research Park's designation of Thomas and the amendment of the scheduling order, expressly advised the parties that they could have as much time as they needed to conduct discovery and prepare for trial. Research Park also stated at the hearing that it would not oppose a continuance if the District requested one. The District thereafter chose to enter into the first amended scheduling order with revised discovery and designation deadlines and to proceed to trial in September without seeking a continuance and without notifying the trial court that it was unable to prepare fully for the September trial.
By its choice, we conclude the District has waived any claim that the trial court's exclusion of Brown prevented it from fully preparing for trial.
Similarly, we conclude the District's assertion that Brown's "additional experience could have made a substantial difference in the trial and its outcome" does not demonstrate reversible error. The District does not point this Court to particular evidence that it was prevented from presenting through Daniell. See Interstate Northborough, 66 S.W.3d at 220; Alvarado, 897 S.W.2d at 753-54. The District has failed to demonstrate that the judgment turned on any particular evidence that was excluded. See Interstate Northborough, 66 S.W.3d at 220; Alvarado, 897 S.W.2d at 753-54.
Moreover, Brown's testimony was cumulative of Daniell's testimony. See Interstate Northborough, 66 S.W.3d at 220; Burlington, 966 S.W.2d at 473-74. Both Brown and Daniell were District employees. Brown was more senior as the Deputy Chief Appraiser and Director of Appraisal, but their opinions and analysis supporting their opinions were similar. Daniell testified that he "bounced" ideas off of Brown and that they assisted each other in the preparation of their respective reports. They both assumed tract R405451 was not a support tract, that only .947 acres of the tract was required for drainage, and that the tract's remainder was available for commercial development. They both assumed that the road on the tract could be moved and reduced the tract's value by twenty cents per foot to allow for road realignment costs. They also used overlapping comparable properties in reaching their ultimate conclusions for both tracts. The District failed to demonstrate that the trial court's exclusion of Brown's testimony probably resulted in an improper judgment. See Tex. R. App. P. 44(a)(1).
Admission of Research Park's expert
In its third issue, the District contends that the trial court erred in admitting the testimony of Research Park's expert Thomas because he was not timely designated under the parties' initial agreed scheduling order. (5) The District does not challenge the parties' first amended scheduling order that was entered in July or that Thomas was timely designated under the amended order. The District's complaint is that the trial court's ruling in May allowed Research Park to designate an expert outside the parties' initial agreed discovery deadlines. Because Research Park did not have a timely designated expert at the time and any subsequent designation would have been outside the agreed deadline, the District argues it was entitled to judgment as a matter of law at that point. We conclude, however, that the trial court was well within its discretion to extend the discovery deadlines and to allow the parties additional time to designate experts after it excluded both parties' valuation and equality expert. See Tex. R. Civ. P. 190.5 (court may modify discovery control plan at any time and must do so when interest of justice requires), 191.1 (court may modify discovery procedure and limitations for "good cause"); In re Van Waters & Rogers, Inc., 62 S.W.3d 197, 200-01 (Tex. 2001) (trial court "given latitude in managing discovery and preparing a case for trial"). As the trial court recognized at the May hearing, denying Research Park's extension to designate an expert after striking both parties' experts would have amounted to the "death penalty." The trial court did not abuse its discretion in extending the deadlines under the circumstances. We conclude that the trial court was within its discretion in allowing Research Park to designate Thomas. (6)
CONCLUSION
Because we conclude that any error by the trial court in excluding the testimony of the District's expert was not reversible error and that the trial court did not err in admitting the testimony of Research Park's expert, we affirm the trial court's judgment.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: November 28, 2007
1. We refer to the tracts by the District's identification number.
2. In an unequal appraisal challenge, the fact finder does not determine the market value of the property, but determines instead whether the district's appraised value of the property in question is equal to the district's appraised value of other comparable properties. See Tex. Tax Code Ann. § 42.26(a)(3) (West Supp. 2007).
3. In its motion, Research Park asserted that Brown's testimony violated rule 3.04(b) of the Texas Disciplinary Rules, the Uniform Standards of Professional Appraisal Practices ("USPAP"), and section 6.035(d) of the tax code. See Tex. Disciplinary R. Prof'l Conduct 3.04(b), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (West 2005) (Tex. State Bar art. 10, § 9); 22 Tex. Admin. Code § 535.17(c) (2005) (Texas Real Estate Commission) (licensed appraiser must perform appraisal in accordance with USPAP); Tex. Tax Code Ann. § 6.035(d) (West 2001). Section 6.035(d) of the tax code prohibits a party from introducing into evidence, in a challenge under chapter 42, an "appraisal performed by a chief appraiser in a private capacity" or by an individual related to a chief appraiser within a certain degree. Tex. Tax Code Ann. § 6.035(d). Brown's title on his resume was Deputy Chief Appraiser & Director of Appraisal.
4. In its order denying the District's subsequent motion to reconsider Brown's exclusion, the trial court stated that it excluded Brown on the ground that "Mr. Brown is Deputy Chief Appraiser and Director of Appraisal for the District."
5. The District also raises substantive complaints about the admission of Thomas's report and opinions. The District did not object to Thomas's report or opinions at trial and, therefore, has not preserved this issue on appeal. See Tex. R. App. P. 33.1(a).
6. Research Park contends that the District's third issue is frivolous and requests that this Court award sanctions against the District. See Tex. R. App. P. 45. Although the District was not successful in its appeal, after reviewing the record and briefs, we conclude the appeal was not frivolous and decline to impose sanctions against the District.
Appeal from 26th District Court of Williamson County
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
NO. 04-1106-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Williamson Central Appraisal District appeals the trial court's judgment in favor of Research Park Property Trust in a property tax appraisal case involving alleged unequal taxation of commercial property. The District contends in three issues that the trial court erroneously excluded the testimony of its expert and improperly admitted the testimony of Research Park's expert. Because we conclude that any error in excluding the District's expert was not reversible error and that the trial court did not err in admitting the testimony of Research Park's expert, we affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Research Park in 2004 owned two unimproved tracts of land in Williamson County, tracts R405451 and R405452. (1) The District's 2004 appraised value for tract R405451 was $1,100,415, and for tract R405452, it was $477,635. Research Park brought suit against the District contending that the District, for 2004 tax purposes, unequally appraised the value of the two tracts. By its suit, Research Park sought a reduction in the tracts' appraised values because the values "exceed[ed] the median appraised value[s] of a reasonable number of comparable properties appropriately adjusted." See Tex. Tax Code Ann. § 42.26(a)(3) (West Supp. 2007). (2)
The case was set for trial on April 4, 2006, and the parties conducted discovery under an agreed scheduling order. Both parties timely designated an expert to testify concerning valuation and equality of taxation. The District designated Patrick Brown, a District employee, and Research Park designated James Nuckles. After the discovery period ended, the parties filed motions to exclude the other party's expert. The District contended in its motion that Nuckles did not meet the standards of Texas Rule of Evidence 702 because he was not qualified--he was not a licensed real estate appraiser or designated as a member of the Appraisal Institute--and his opinions were not relevant or reliable. See Tex. R. Evid. 702.
Research Park, similarly relying on Rule 702, contended that Brown's opinions were not reliable because of his employment position with the District and errors in his report. (3) In response to the competing motions and the District's motion to continue the April trial setting, the trial court reset the trial to May 23, 2006, and, after a hearing in April, granted both parties' motions to exclude without stating its grounds in the order. (4)
A few days after the trial court's ruling on the motions to exclude, Research Park filed a motion for leave to designate expert and for the approval of an amended scheduling order or, alternatively, motion for continuance. Research Park also designated Edward Thomas as its expert on the issues of valuation and equality. The District, in response, filed a motion to strike Thomas, contending he was untimely designated under the parties' agreed scheduling order. The trial court held a hearing in May on the parties' competing motions concerning Thomas's designation and discovery deadlines. At the hearing, the trial court ruled that it would allow both sides the time that they needed to conduct discovery, retain new experts, and prepare for trial, including extending the trial setting if necessary:
The Court: The Court's inclined to get this case to trial, and so--and I want both parties armed with experts and [to] be able to prepare a complete presentation to the jury and let the best argument prevail. And so I'm inclined to give you all whatever time you need to do the discovery that you need to do. If that's impossible to do by the May 23rd trial date, then we need to get another trial date and enter a scheduling order that's appropriate for that trial date which will allow both sides to be ready. The law does not favor the death penalty, and I don't favor it, personally. I think that the interests of equity and justice in a general way are served when both sides have an opportunity to present fully the argument that they have to the jury and let them decide the disputed facts.
[District's counsel]: Your Honor, I can tell you that May 23rd won't be sufficient time for the parties to designate new expert, undertake depositions, and be ready for trial on that day.
The Court: Is it trial before the Court?
[District's Counsel]: Yes, sir.
The Court: Then interpose the Court for the comments I made about the jury. So if it is trial before the Court, that means that we're a lot more flexible than we would be if it were a jury trial. You all want to confer about a date, confer with Ms. Wilburn for available dates, and then prepare a scheduling order?
[District's Counsel]: Yes, sir.
The parties ultimately agreed to a first amended scheduling order that the trial court entered in July. The scheduling order specified revised deadlines for designating experts and reset the trial to September. The District thereafter designated David Daniell, another District employee, as its expert on the issues of valuation and equality.
At trial, the parties' experts presented conflicting evidence on the appraised median values of comparable properties adjusted for the tracts. Thomas testified that tract R405451 was unequally appraised as it was a "greenbelt, support, easement tract" and that it was "never meant to be built on" but to support the other tracts in a business park. As a "support" tract, he testified that it should be nominally valued and that the median appraised value of comparable properties with adjustments was $6,297. He testified that the tract ran along the edge of the business park, provided water and drainage runoff and utility easements for nearby tracts, and had a road running through it. Thomas also testified that tract R405452 was unequally appraised and that the median appraised value of comparable properties with adjustments was $286,578. In contrast, Daniell testified that tract R405451 was not a support tract, that it could be developed commercially, and that the median appraised value of comparable properties adjusted for the tract was $1,360,898. As to tract R405452, Daniell testified that the median appraised value of comparable properties with adjustments was $402,169.
The trial court found the District's 2004 values for the tracts exceeded the District's median appraised values of a reasonable number of comparable properties appropriately adjusted. Thus, the trial court found the tracts were unequally appraised. The trial court ordered the District to revise the 2004 appraisal roll to reflect the appraised values Thomas suggested--$6,297 for tract R405451 and $286,578 for tract R405452. The court also awarded attorney's fees to Research Park. The District's appeal followed.
ANALYSIS
The District challenges the trial court's evidentiary rulings on the admission and exclusion of expert testimony. In its first and second issues, the District contends that the trial court erred in excluding the District's expert Brown. In its third issue, the District urges that the trial court improperly admitted the testimony of Research Park's expert Thomas.
Standard of Review
The admission or exclusion of expert evidence is a matter within the trial court's discretion. Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006). A trial court abuses its discretion when it acts without regard to any guiding rules or principles. Id.; City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). To reverse a judgment based on an error in the admission or exclusion of evidence, we must conclude that the error probably resulted in an improper judgment. See Tex. R. App. P. 44.1(a)(1); Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). To make this determination, we review the entire record and usually require the complaining party to demonstrate that the judgment turns on the particular evidence admitted or excluded. Interstate Northborough, 66 S.W.3d at 220; Alvarado, 897 S.W.2d at 753-54. We ordinarily will not reverse a judgment for an erroneous ruling if the evidence in question is cumulative. Interstate Northborough, 66 S.W.3d at 220; Southwestern Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 473-74 (Tex. 1998).
Exclusion of the District's expert
In its first two issues, the District contends that section 6.035 of the tax code does not prohibit a deputy chief appraiser from testifying in a property tax appraisal case and that the trial court erred in granting Research Park's motion to exclude Brown. See Tex. Tax Code Ann. § 6.035(d) (West 2001). Because the District fails to demonstrate that Brown's exclusion probably resulted in an improper judgment, we do not reach section 6.035's applicability to Brown or the propriety of the trial court's ruling granting Research Park's motion to exclude Brown. See Tex. R. App. P. 44.1(a)(1).
The District contends that Brown's exclusion probably resulted in an improper judgment because it affected the District's ability to prepare its case for trial and to present its case fully. The District asserts that it "had to obtain a new expert on the eve of trial" and that its expert Daniell was not as "equipped" as Brown to rebut Research Park's "untimely-designated expert evidence" as Daniell had "fewer credentials and about ten years' less experience appraising and testifying than Brown." The District, however, has waived this claim. See Tex. R. App. P. 33.1(a).
The trial court, at the hearing on the parties' competing motions concerning Research Park's designation of Thomas and the amendment of the scheduling order, expressly advised the parties that they could have as much time as they needed to conduct discovery and prepare for trial. Research Park also stated at the hearing that it would not oppose a continuance if the District requested one. The District thereafter chose to enter into the first amended scheduling order with revised discovery and designation deadlines and to proceed to trial in September without seeking a continuance and without notifying the trial court that it was unable to prepare fully for the September trial.
By its choice, we conclude the District has waived any claim that the trial court's exclusion of Brown prevented it from fully preparing for trial.
Similarly, we conclude the District's assertion that Brown's "additional experience could have made a substantial difference in the trial and its outcome" does not demonstrate reversible error. The District does not point this Court to particular evidence that it was prevented from presenting through Daniell. See Interstate Northborough, 66 S.W.3d at 220; Alvarado, 897 S.W.2d at 753-54. The District has failed to demonstrate that the judgment turned on any particular evidence that was excluded. See Interstate Northborough, 66 S.W.3d at 220; Alvarado, 897 S.W.2d at 753-54.
Moreover, Brown's testimony was cumulative of Daniell's testimony. See Interstate Northborough, 66 S.W.3d at 220; Burlington, 966 S.W.2d at 473-74. Both Brown and Daniell were District employees. Brown was more senior as the Deputy Chief Appraiser and Director of Appraisal, but their opinions and analysis supporting their opinions were similar. Daniell testified that he "bounced" ideas off of Brown and that they assisted each other in the preparation of their respective reports. They both assumed tract R405451 was not a support tract, that only .947 acres of the tract was required for drainage, and that the tract's remainder was available for commercial development. They both assumed that the road on the tract could be moved and reduced the tract's value by twenty cents per foot to allow for road realignment costs. They also used overlapping comparable properties in reaching their ultimate conclusions for both tracts. The District failed to demonstrate that the trial court's exclusion of Brown's testimony probably resulted in an improper judgment. See Tex. R. App. P. 44(a)(1).
Admission of Research Park's expert
In its third issue, the District contends that the trial court erred in admitting the testimony of Research Park's expert Thomas because he was not timely designated under the parties' initial agreed scheduling order. (5) The District does not challenge the parties' first amended scheduling order that was entered in July or that Thomas was timely designated under the amended order. The District's complaint is that the trial court's ruling in May allowed Research Park to designate an expert outside the parties' initial agreed discovery deadlines. Because Research Park did not have a timely designated expert at the time and any subsequent designation would have been outside the agreed deadline, the District argues it was entitled to judgment as a matter of law at that point. We conclude, however, that the trial court was well within its discretion to extend the discovery deadlines and to allow the parties additional time to designate experts after it excluded both parties' valuation and equality expert. See Tex. R. Civ. P. 190.5 (court may modify discovery control plan at any time and must do so when interest of justice requires), 191.1 (court may modify discovery procedure and limitations for "good cause"); In re Van Waters & Rogers, Inc., 62 S.W.3d 197, 200-01 (Tex. 2001) (trial court "given latitude in managing discovery and preparing a case for trial"). As the trial court recognized at the May hearing, denying Research Park's extension to designate an expert after striking both parties' experts would have amounted to the "death penalty." The trial court did not abuse its discretion in extending the deadlines under the circumstances. We conclude that the trial court was within its discretion in allowing Research Park to designate Thomas. (6)
CONCLUSION
Because we conclude that any error by the trial court in excluding the testimony of the District's expert was not reversible error and that the trial court did not err in admitting the testimony of Research Park's expert, we affirm the trial court's judgment.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: November 28, 2007
1. We refer to the tracts by the District's identification number.
2. In an unequal appraisal challenge, the fact finder does not determine the market value of the property, but determines instead whether the district's appraised value of the property in question is equal to the district's appraised value of other comparable properties. See Tex. Tax Code Ann. § 42.26(a)(3) (West Supp. 2007).
3. In its motion, Research Park asserted that Brown's testimony violated rule 3.04(b) of the Texas Disciplinary Rules, the Uniform Standards of Professional Appraisal Practices ("USPAP"), and section 6.035(d) of the tax code. See Tex. Disciplinary R. Prof'l Conduct 3.04(b), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (West 2005) (Tex. State Bar art. 10, § 9); 22 Tex. Admin. Code § 535.17(c) (2005) (Texas Real Estate Commission) (licensed appraiser must perform appraisal in accordance with USPAP); Tex. Tax Code Ann. § 6.035(d) (West 2001). Section 6.035(d) of the tax code prohibits a party from introducing into evidence, in a challenge under chapter 42, an "appraisal performed by a chief appraiser in a private capacity" or by an individual related to a chief appraiser within a certain degree. Tex. Tax Code Ann. § 6.035(d). Brown's title on his resume was Deputy Chief Appraiser & Director of Appraisal.
4. In its order denying the District's subsequent motion to reconsider Brown's exclusion, the trial court stated that it excluded Brown on the ground that "Mr. Brown is Deputy Chief Appraiser and Director of Appraisal for the District."
5. The District also raises substantive complaints about the admission of Thomas's report and opinions. The District did not object to Thomas's report or opinions at trial and, therefore, has not preserved this issue on appeal. See Tex. R. App. P. 33.1(a).
6. Research Park contends that the District's third issue is frivolous and requests that this Court award sanctions against the District. See Tex. R. App. P. 45. Although the District was not successful in its appeal, after reviewing the record and briefs, we conclude the appeal was not frivolous and decline to impose sanctions against the District.
Griffin v. Birkman (Tex.App.- Austin, 2007)
Government entity law, Declaratory Judgment Act
Constable Gary Griffin, Williamson County Precinct 1 v. Lisa Birkman, County Commissioner Precinct 1; Cynthia Long, County Commissioner Precinct 2; Valerie Covey, County Commissioner Precinct 3; Ron Morrison, County Commissioner Precinct 4; and Dan A. Gattis, County Judge, No. 03-06-00412-CV (Tex.App.- Nov. 28, 2007) (UDJA) (Opinion by Chief Justice Law)
Appeal from 368th District Court of Williamson Countyge
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 05-1039-C368, HONORABLE JAMES F. CLAWSON JR., JUDGE PRESIDING
O P I N I O N
Constable Gary Griffin appeals from the trial court's judgment against him in his suit for declaratory judgment asking that the court find that appellees (collectively "the County Commissioners Court" (2)) lacked authority to transfer funding for the Williamson County Mental Health Unit from his office to that of the Williamson County Sheriff.
We will affirm the trial court's judgment.
Factual and Procedural Background
Williamson County has a "Mental Health Unit," a team of law enforcement officers who have specialized training in responding to mental health emergencies. This unit had been under the direction of the constable for Precinct One for eight years. In October 2005, however, the County Commissioners Court formed a committee to study the issue of the best placement for the Mental Health Unit. For the budget year 2005-06, the unit remained in Precinct One, with funding for six mental health deputies and two mental health supervisors. Griffin and four deputy constable positions were also funded. (3)
The current litigation was precipitated by events that occurred on October 19, 2005. Griffin ordered all Precinct One deputies to stop responding to mental health calls. His chief deputy contacted the Williamson County 911 dispatcher and all local law enforcement officials and notified them that Griffin's office would no longer respond to mental health emergencies or transport the mentally ill and mentally disabled. The County Commissioners Court convened an emergency meeting on October 20, 2005, and decided to transfer funding for the Mental Health Unit from the Precinct One Constable's budget to the Sheriff's office. The Sheriff had authorized, but unfilled, positions available that he offered to the mental health deputies. The funding and ancillary resources, such as cars, for these positions were transferred from the Precinct One Constable's budget to the Sheriff's budget.
Griffin filed suit for declaratory judgment with ancillary injunctive relief requested. The temporary injunction was denied. The County Commissioners Court moved for both a traditional and a no-evidence summary judgment; the trial court granted a general summary judgment.
In four issues on appeal, Griffin contends that the trial court erred in granting summary judgment because: (1) once the County Commissioners Court adopts the annual budget, the Commissioners lack authority to amend that budget for the purposes of interfering with or countermanding the decision of a constable as to how to deploy his deputies during that fiscal year; (2) local government code section 111.104(b) could not serve as authority for the Williamson County Commissioners Court to cut Constable Griffin's original annual budget because that section only gives authority to a Commissioners Court to make an emergency "expenditure" that increases the county's original budget; (3) even if section 111.041(b) could be read to authorize a budget cut, summary judgment was inappropriate given the genuine fact issue of whether a "grave public necessity" existed when Constable Griffin temporarily deployed his deputies to serve criminal warrants and civil papers while deciding on a case-by-case basis whether to take mental health calls or let the Sheriff's office handle them, and no admissible evidence was introduced that a single mental health call went unanswered or that such calls would go unanswered in the future; and (4) local government code section 111.041(c) does not give the Williamson County Commissioners Court authority to "transfer" budgeted amounts to budget items that were created by the "transfer" order that did not exist in the original annual budget. We will hold that the County Commissioners Court had the authority to make the budget transfer, overruling issue four, and hold that the transfer did not improperly interfere with Griffin's "sphere of authority," overruling issue one. (4) Before reaching the merits of the case, we will discuss the County Commissioners Court's motion to dismiss the appeal.
Discussion
Mootness
The County Commissioners Court moved to dismiss this appeal for mootness because Griffin's complaint is about a budget transfer that occurred in fiscal year 2006 and the county is now operating under a new budget for fiscal year 2007. The mootness doctrine limits courts to deciding cases in which an actual controversy exists. Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988). A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings, including the appeal. In re Kellogg Brown & Root, 166 S.W.3d 732, 737 (Tex. 2005). A dispute over attorneys' fees is a live controversy. McElroy v. City of Temple, 208 S.W.3d 471, 474 (Tex. App.--Austin 2006, pet. denied) (citing Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005)). Griffin sued for a declaratory judgment, injunctive relief, and attorneys' fees. Although the fiscal year at issue has ended, a decision that the County Commissioners Court acted improperly, thus reversing the trial court's judgment, would necessitate a remand to the trial court to consider whether an award of attorneys' fees to Griffin would be appropriate. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997). Therefore, we overrule the County Commissioners Court's motion to dismiss and consider the merits of Griffin's claims on appeal.
Standard of Review
This Court reviews the granting of a motion for summary judgment under a de novo standard of review. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under this standard, the Court exercises its own judgment and redetermines each issue of fact and law. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). No deference is given to the original tribunal's decision. Id. If a trial court's order does not specify the ground or grounds relied on for its ruling, then summary judgment will be affirmed on appeal if any theory advanced is meritorious. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). The appellate court may review and affirm on any ground the movant presented to the court in its motion for summary judgment, regardless whether the trial court identified the ground relied on to grant the summary judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). Appellants moved for both a no-evidence and a traditional summary judgment on the ground that as a matter of law, the County Commissioners Court did not violate Texas law by moving the responsibility for the Mental Health Unit to the Sheriff's Office. See Young Ref. Corp. v. Pennzoil, 46 S.W.3d 380, 385-86 (Tex. App.--Houston [1st Dist.] 2001, pet. denied).
The budget transfer order made by the County Commissioners Court is reviewed for an abuse of discretion. See Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 79-80 (Tex. 1997) (citing Ector County v. Stringer, 843 S.W.2d 477, 479 (Tex. 1992)). Once the County Commissioners Court exercises its discretion, the district court may review the order only for abuse of discretion, and is limited to a review of whether the Court, by its order, acted illegally, unreasonably, or arbitrarily. See Agan, 940 S.W.2d at 980. In reviewing a Commissioners Court order for abuse of discretion, the court has no right to substitute its judgment and discretion for that of the Commissioners Court. Id.
County Commissioners Court
The Texas Constitution provides that the County Commissioners Court "shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed." Tex. Const. art. V, § 18. Thus, the Texas Constitution established the Commissioners Court as the county's principal governing body. Agan, 940 S.W.2d at 79. The powers and duties of the Commissioners Court include aspects of legislative, executive, administrative, and judicial functions. Id. (citing Avery v. Midland County, 390 U.S. 474, 482 (1968); Ector County v. Stringer, 843 S.W.2d 477, 478 (Tex. 1992)). In the exercise of its powers and jurisdiction over county business, the County Commissioners Court has implied authority to exercise broad discretion to accomplish the purposes intended. See Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Cosby v. County Comm'rs of Randall County, 712 S.W.2d 246, 248 (Tex. App.--Amarillo 1986, writ ref'd n.r.e.). Constitutional and statutory provisions conferring authority upon the Commissioners Court should be broadly and liberally construed to ascertain the scope of the authority granted either expressly or by necessary implication. Canales, 214 S.W.2d at 453; Cosby, 712 S.W.2d at 248.
The County Commissioners Court has extensive authority over the county's budget, including the power to determine the number and compensation of employees, deputies, assistants, and clerks to be given to a particular department. See Abbott v. Pollack, 946 S.W.2d 513, 517 (Tex. App.--Austin 1997, writ denied). The County Commissioners Court has the statutory authority to amend the budget by: authorizing emergency expenditures in the case of a grave public necessity; transferring an amount budgeted for one item to another budgeted item; and changing the budget for county purposes. Tex. Loc. Gov't Code Ann. §§ 111.041, 111.0415 (West 2006).
The County Commissioners Court, however, does not have unlimited powers over county government. Each elected county official has a delegated sphere of authority that cannot be invaded. See Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961). This sphere of authority covers only those duties that the Texas Constitution and statutes specifically delegate to the officer. Id. The protected "sphere of authority" does not protect discretionary duties that are outside the "core duties" of the elected official. Agan, 940 S.W.2d at 79.
The Texas Constitution creates the constable's office. Art. V, § 18. The general powers and duties of a constable are specified in the local government code:
(a) A constable shall execute and return as provided by law each process, warrant, and precept that is directed to the constable and is delivered by a lawful officer. Notices required by Section 24.005, Property Code, relating to eviction actions are process for purposes of this section that may be executed by a constable.
[(b), (c), (d); geographic authorizations and restraints]
(e) The constable shall attend each justice court held in the precinct.
Tex. Loc. Gov't Code Ann. § 86.021 (West 2006). The operation of a mental health unit is not contained within the list of "core duties" as set out by the legislature. (5)
The shift of duties and funding from one county office to another in this case appears to fall within the ambit of Agan. In Agan, the County Commissioners Court of Titus County transferred payroll preparation responsibilities from the County Treasurer to the County Auditor. 940 S.W.2d at 78. From 1987 until 1994 a payroll clerk working for the Treasury prepared the county payroll. In 1994, the Commissioners Court amended the budget to combine administrative duties involving county payroll, the insurance program, personnel, and receiving purchase orders and their payment into one full-time position assigned to the County Auditor. Id. at 79. These duties had previously been divided between the payroll clerk and a part-time employee in the Auditor's office, who had recently resigned. Id. The Treasury employee transferred to the Auditor's office to fill this position. Id. After enumerating various core functions of the Treasurer's office, the court noted that payroll preparation responsibilities had not been assigned to any county official in particular and thus were not a core function of the Treasurer. Id. at 81-82. Therefore, acting in its legislative capacity, the Commissioners Court was able to delegate the responsibilities to an appropriate county official and had the power to transfer the payroll duties to the Auditor. Id. The court then noted that the Treasurer was given the exclusive power to disburse funds, and the Commissioners could not transfer functions involving fund disbursement to the auditor. Id. The court concluded: "If the Legislature does not specifically assign a duty to the County Treasurer, that duty is not one of the county Treasurer's core functions. The Commissioners Court may, within its discretion, assign those non-core functions to other county officials the legislature authorizes to perform those functions." Id. at 82.
In the current case, the County Commissioners Court transferred funding for a number of jobs from the constable to the sheriff. These officers were not performing a core function of the constable's office. Accordingly, under Agan, the County Commissioners Court had the discretion to assign these non-core functions to another official authorized to perform those duties. Although Agan did not expressly discuss the timing of the transfer in that case, because the opinion referred to "amending" the budget, it appears comparable to the budget amendment at issue in this case as an event that occurred after the start of the fiscal year. We note that Agan did not address the budget transfer authority under Texas Local Government Code section 111.041(c). We now discuss this section as another basis for the County Commissioners Court's authority to transfer these funds.
Section 111.041(c) Transfer Authority
The Texas Local Government Code gives budgetary transfer authority to the Commissioners Court: "The Commissioners' Court by order may amend the budget to transfer an amount budgeted for one item to another budgeted item without authorizing an emergency expenditure." Tex. Loc. Gov't Code Ann. § 111.041(c) (West 1999). In this case, the Sheriff had open positions. He used those positions to offer employment to the mental health deputies. The funding for these deputies was transferred from the budget item for the Precinct One Constable to the Sheriff. Such a transfer in the form of a "rehire" of employees by one precinct from another precinct, with the funds originally budgeted for the first precinct of employment following the employees to their new precinct, was approved in an attorney general opinion. See Op. Tex. Att'y Gen. No. DM-158 at 5 (1992).
Griffin asserts that transfer must be a line-item to line-item transfer; in other words, because the Sheriff did not have a line item for each transferred position labeled "mental health deputy," no transfer could occur. A previous version of the transfer authority under section 111.041 did contain a limitation that a "budget surplus" could be transferred to a budget item of "similar kind and fund" as long as the total budget was not increased. See Hooten v. Enriquez, 863 S.W.2d 522, 529-30 (Tex. App.--El Paso 1993, no writ) (dealing with propriety of mechanism used to create "surplus" to transfer money from County Clerk to Record Office). However, the 75th legislature amended this section to the current version quoted above, removing the "like kind" and "surplus" restrictions. See Act of June 1, 1997, 75th Leg., R.S., ch. 1197, § 3, 1997 Tex. Gen. Laws 4612. We decline to read into the statute a new restriction not supported by its plain language.
Further, the Williamson County budget does not show individual salaries as separate line items; each department's budget simply shows a total for salaries, FICA, and other categories of expenditures. For example, the Commissioner's budget for Precinct One simply shows an "object code" of 001100 for "salaries" with a total of $139,815 allocated for salaries. The Precinct Two budget, under the same object code and label, shows a total of $145,285 allocated for salaries. Similarly, each of these two precincts shows an "object code" of 002010 for "FICA" with totals of $10,920 and $11,115, respectively, allocated for this item. The order authorizing the budget transfer contains a chart labeled, "Line Item Transfers for Transfer of Mental Health Unit from Dept. 551 [Constable, Precinct One] to Dept. 560 [Sheriff]." Under "Line Item" 1100, "Salaries," it shows the Precinct One current budget allocating a lump sum of $509,370.00, with a transfer to the Sheriff of a lump sum $229,363.49. The transfer budget tracks the format of the county budget with a lump-sum line item for FICA, retirement, and other categories of expenses. Although the County Auditor maintains a budget showing each salary as a separate line item for accounting control purposes, that is not the adopted budget of Williamson County as approved by the County Commissioners Court that was subject to amendment. See Tex. Loc. Gov't Ann. § 111.008 (West Supp. 2007) (adoption of budget), 111.009 (approved budget filed with county clerk and posted on county website).
Conclusion
We have concluded that the budget transfer was authorized by the local government code and did not improperly intrude into Constable Griffin's sphere of authority. Accordingly, the Willliamson County Commissioners Court was entitled to summary judgment in its favor. We affirm the trial court's judgment.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: November 28, 2007
1. This suit was originally brought against Lisa Birkman, Greg Boatright, S. Thomas McDaniel, Frankie Limmer, and John Doerfler. Other than Lisa Birkman, the successors-in-office have been substituted. See Tex. R. App. P. 7.2(a) (automatic substitution of public officer when officer is party in official capacity).
2. The language in the Texas Constitution establishing the "County Commissioners Court" does not use an apostrophe in "Commissioners." See Tex. Const. art. V, § 18; 35 David B. Brooks, Texas Practice: County and Special District Law § 5.2 & n.1 (2d ed. 2002). We will use the spelling as it appears in the Texas Constitution.
3. Ordinarily, a Williamson County constable would only have two deputy constables and an administrative staff member.
4. Because of our disposition of the case, it is not necessary to discuss issues two and three concerning the existence of an emergency. See Tex. R. App. P. 47.1 (opinion to be as brief as practicable, but address every issue raised and necessary to final disposition of appeal).
5. We note that, in his brief, Griffin refers to handling mental health calls "in addition to their 'core' Constable duties serving criminal warrants, civil papers, and providing a bailiff to the JP Court." In other words, Griffin acknowledges that handling mental health calls was not a core function of the office.
Constable Gary Griffin, Williamson County Precinct 1 v. Lisa Birkman, County Commissioner Precinct 1; Cynthia Long, County Commissioner Precinct 2; Valerie Covey, County Commissioner Precinct 3; Ron Morrison, County Commissioner Precinct 4; and Dan A. Gattis, County Judge, No. 03-06-00412-CV (Tex.App.- Nov. 28, 2007) (UDJA) (Opinion by Chief Justice Law)
Appeal from 368th District Court of Williamson Countyge
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 05-1039-C368, HONORABLE JAMES F. CLAWSON JR., JUDGE PRESIDING
O P I N I O N
Constable Gary Griffin appeals from the trial court's judgment against him in his suit for declaratory judgment asking that the court find that appellees (collectively "the County Commissioners Court" (2)) lacked authority to transfer funding for the Williamson County Mental Health Unit from his office to that of the Williamson County Sheriff.
We will affirm the trial court's judgment.
Factual and Procedural Background
Williamson County has a "Mental Health Unit," a team of law enforcement officers who have specialized training in responding to mental health emergencies. This unit had been under the direction of the constable for Precinct One for eight years. In October 2005, however, the County Commissioners Court formed a committee to study the issue of the best placement for the Mental Health Unit. For the budget year 2005-06, the unit remained in Precinct One, with funding for six mental health deputies and two mental health supervisors. Griffin and four deputy constable positions were also funded. (3)
The current litigation was precipitated by events that occurred on October 19, 2005. Griffin ordered all Precinct One deputies to stop responding to mental health calls. His chief deputy contacted the Williamson County 911 dispatcher and all local law enforcement officials and notified them that Griffin's office would no longer respond to mental health emergencies or transport the mentally ill and mentally disabled. The County Commissioners Court convened an emergency meeting on October 20, 2005, and decided to transfer funding for the Mental Health Unit from the Precinct One Constable's budget to the Sheriff's office. The Sheriff had authorized, but unfilled, positions available that he offered to the mental health deputies. The funding and ancillary resources, such as cars, for these positions were transferred from the Precinct One Constable's budget to the Sheriff's budget.
Griffin filed suit for declaratory judgment with ancillary injunctive relief requested. The temporary injunction was denied. The County Commissioners Court moved for both a traditional and a no-evidence summary judgment; the trial court granted a general summary judgment.
In four issues on appeal, Griffin contends that the trial court erred in granting summary judgment because: (1) once the County Commissioners Court adopts the annual budget, the Commissioners lack authority to amend that budget for the purposes of interfering with or countermanding the decision of a constable as to how to deploy his deputies during that fiscal year; (2) local government code section 111.104(b) could not serve as authority for the Williamson County Commissioners Court to cut Constable Griffin's original annual budget because that section only gives authority to a Commissioners Court to make an emergency "expenditure" that increases the county's original budget; (3) even if section 111.041(b) could be read to authorize a budget cut, summary judgment was inappropriate given the genuine fact issue of whether a "grave public necessity" existed when Constable Griffin temporarily deployed his deputies to serve criminal warrants and civil papers while deciding on a case-by-case basis whether to take mental health calls or let the Sheriff's office handle them, and no admissible evidence was introduced that a single mental health call went unanswered or that such calls would go unanswered in the future; and (4) local government code section 111.041(c) does not give the Williamson County Commissioners Court authority to "transfer" budgeted amounts to budget items that were created by the "transfer" order that did not exist in the original annual budget. We will hold that the County Commissioners Court had the authority to make the budget transfer, overruling issue four, and hold that the transfer did not improperly interfere with Griffin's "sphere of authority," overruling issue one. (4) Before reaching the merits of the case, we will discuss the County Commissioners Court's motion to dismiss the appeal.
Discussion
Mootness
The County Commissioners Court moved to dismiss this appeal for mootness because Griffin's complaint is about a budget transfer that occurred in fiscal year 2006 and the county is now operating under a new budget for fiscal year 2007. The mootness doctrine limits courts to deciding cases in which an actual controversy exists. Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988). A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings, including the appeal. In re Kellogg Brown & Root, 166 S.W.3d 732, 737 (Tex. 2005). A dispute over attorneys' fees is a live controversy. McElroy v. City of Temple, 208 S.W.3d 471, 474 (Tex. App.--Austin 2006, pet. denied) (citing Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005)). Griffin sued for a declaratory judgment, injunctive relief, and attorneys' fees. Although the fiscal year at issue has ended, a decision that the County Commissioners Court acted improperly, thus reversing the trial court's judgment, would necessitate a remand to the trial court to consider whether an award of attorneys' fees to Griffin would be appropriate. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997). Therefore, we overrule the County Commissioners Court's motion to dismiss and consider the merits of Griffin's claims on appeal.
Standard of Review
This Court reviews the granting of a motion for summary judgment under a de novo standard of review. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under this standard, the Court exercises its own judgment and redetermines each issue of fact and law. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). No deference is given to the original tribunal's decision. Id. If a trial court's order does not specify the ground or grounds relied on for its ruling, then summary judgment will be affirmed on appeal if any theory advanced is meritorious. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). The appellate court may review and affirm on any ground the movant presented to the court in its motion for summary judgment, regardless whether the trial court identified the ground relied on to grant the summary judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). Appellants moved for both a no-evidence and a traditional summary judgment on the ground that as a matter of law, the County Commissioners Court did not violate Texas law by moving the responsibility for the Mental Health Unit to the Sheriff's Office. See Young Ref. Corp. v. Pennzoil, 46 S.W.3d 380, 385-86 (Tex. App.--Houston [1st Dist.] 2001, pet. denied).
The budget transfer order made by the County Commissioners Court is reviewed for an abuse of discretion. See Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 79-80 (Tex. 1997) (citing Ector County v. Stringer, 843 S.W.2d 477, 479 (Tex. 1992)). Once the County Commissioners Court exercises its discretion, the district court may review the order only for abuse of discretion, and is limited to a review of whether the Court, by its order, acted illegally, unreasonably, or arbitrarily. See Agan, 940 S.W.2d at 980. In reviewing a Commissioners Court order for abuse of discretion, the court has no right to substitute its judgment and discretion for that of the Commissioners Court. Id.
County Commissioners Court
The Texas Constitution provides that the County Commissioners Court "shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed." Tex. Const. art. V, § 18. Thus, the Texas Constitution established the Commissioners Court as the county's principal governing body. Agan, 940 S.W.2d at 79. The powers and duties of the Commissioners Court include aspects of legislative, executive, administrative, and judicial functions. Id. (citing Avery v. Midland County, 390 U.S. 474, 482 (1968); Ector County v. Stringer, 843 S.W.2d 477, 478 (Tex. 1992)). In the exercise of its powers and jurisdiction over county business, the County Commissioners Court has implied authority to exercise broad discretion to accomplish the purposes intended. See Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Cosby v. County Comm'rs of Randall County, 712 S.W.2d 246, 248 (Tex. App.--Amarillo 1986, writ ref'd n.r.e.). Constitutional and statutory provisions conferring authority upon the Commissioners Court should be broadly and liberally construed to ascertain the scope of the authority granted either expressly or by necessary implication. Canales, 214 S.W.2d at 453; Cosby, 712 S.W.2d at 248.
The County Commissioners Court has extensive authority over the county's budget, including the power to determine the number and compensation of employees, deputies, assistants, and clerks to be given to a particular department. See Abbott v. Pollack, 946 S.W.2d 513, 517 (Tex. App.--Austin 1997, writ denied). The County Commissioners Court has the statutory authority to amend the budget by: authorizing emergency expenditures in the case of a grave public necessity; transferring an amount budgeted for one item to another budgeted item; and changing the budget for county purposes. Tex. Loc. Gov't Code Ann. §§ 111.041, 111.0415 (West 2006).
The County Commissioners Court, however, does not have unlimited powers over county government. Each elected county official has a delegated sphere of authority that cannot be invaded. See Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961). This sphere of authority covers only those duties that the Texas Constitution and statutes specifically delegate to the officer. Id. The protected "sphere of authority" does not protect discretionary duties that are outside the "core duties" of the elected official. Agan, 940 S.W.2d at 79.
The Texas Constitution creates the constable's office. Art. V, § 18. The general powers and duties of a constable are specified in the local government code:
(a) A constable shall execute and return as provided by law each process, warrant, and precept that is directed to the constable and is delivered by a lawful officer. Notices required by Section 24.005, Property Code, relating to eviction actions are process for purposes of this section that may be executed by a constable.
[(b), (c), (d); geographic authorizations and restraints]
(e) The constable shall attend each justice court held in the precinct.
Tex. Loc. Gov't Code Ann. § 86.021 (West 2006). The operation of a mental health unit is not contained within the list of "core duties" as set out by the legislature. (5)
The shift of duties and funding from one county office to another in this case appears to fall within the ambit of Agan. In Agan, the County Commissioners Court of Titus County transferred payroll preparation responsibilities from the County Treasurer to the County Auditor. 940 S.W.2d at 78. From 1987 until 1994 a payroll clerk working for the Treasury prepared the county payroll. In 1994, the Commissioners Court amended the budget to combine administrative duties involving county payroll, the insurance program, personnel, and receiving purchase orders and their payment into one full-time position assigned to the County Auditor. Id. at 79. These duties had previously been divided between the payroll clerk and a part-time employee in the Auditor's office, who had recently resigned. Id. The Treasury employee transferred to the Auditor's office to fill this position. Id. After enumerating various core functions of the Treasurer's office, the court noted that payroll preparation responsibilities had not been assigned to any county official in particular and thus were not a core function of the Treasurer. Id. at 81-82. Therefore, acting in its legislative capacity, the Commissioners Court was able to delegate the responsibilities to an appropriate county official and had the power to transfer the payroll duties to the Auditor. Id. The court then noted that the Treasurer was given the exclusive power to disburse funds, and the Commissioners could not transfer functions involving fund disbursement to the auditor. Id. The court concluded: "If the Legislature does not specifically assign a duty to the County Treasurer, that duty is not one of the county Treasurer's core functions. The Commissioners Court may, within its discretion, assign those non-core functions to other county officials the legislature authorizes to perform those functions." Id. at 82.
In the current case, the County Commissioners Court transferred funding for a number of jobs from the constable to the sheriff. These officers were not performing a core function of the constable's office. Accordingly, under Agan, the County Commissioners Court had the discretion to assign these non-core functions to another official authorized to perform those duties. Although Agan did not expressly discuss the timing of the transfer in that case, because the opinion referred to "amending" the budget, it appears comparable to the budget amendment at issue in this case as an event that occurred after the start of the fiscal year. We note that Agan did not address the budget transfer authority under Texas Local Government Code section 111.041(c). We now discuss this section as another basis for the County Commissioners Court's authority to transfer these funds.
Section 111.041(c) Transfer Authority
The Texas Local Government Code gives budgetary transfer authority to the Commissioners Court: "The Commissioners' Court by order may amend the budget to transfer an amount budgeted for one item to another budgeted item without authorizing an emergency expenditure." Tex. Loc. Gov't Code Ann. § 111.041(c) (West 1999). In this case, the Sheriff had open positions. He used those positions to offer employment to the mental health deputies. The funding for these deputies was transferred from the budget item for the Precinct One Constable to the Sheriff. Such a transfer in the form of a "rehire" of employees by one precinct from another precinct, with the funds originally budgeted for the first precinct of employment following the employees to their new precinct, was approved in an attorney general opinion. See Op. Tex. Att'y Gen. No. DM-158 at 5 (1992).
Griffin asserts that transfer must be a line-item to line-item transfer; in other words, because the Sheriff did not have a line item for each transferred position labeled "mental health deputy," no transfer could occur. A previous version of the transfer authority under section 111.041 did contain a limitation that a "budget surplus" could be transferred to a budget item of "similar kind and fund" as long as the total budget was not increased. See Hooten v. Enriquez, 863 S.W.2d 522, 529-30 (Tex. App.--El Paso 1993, no writ) (dealing with propriety of mechanism used to create "surplus" to transfer money from County Clerk to Record Office). However, the 75th legislature amended this section to the current version quoted above, removing the "like kind" and "surplus" restrictions. See Act of June 1, 1997, 75th Leg., R.S., ch. 1197, § 3, 1997 Tex. Gen. Laws 4612. We decline to read into the statute a new restriction not supported by its plain language.
Further, the Williamson County budget does not show individual salaries as separate line items; each department's budget simply shows a total for salaries, FICA, and other categories of expenditures. For example, the Commissioner's budget for Precinct One simply shows an "object code" of 001100 for "salaries" with a total of $139,815 allocated for salaries. The Precinct Two budget, under the same object code and label, shows a total of $145,285 allocated for salaries. Similarly, each of these two precincts shows an "object code" of 002010 for "FICA" with totals of $10,920 and $11,115, respectively, allocated for this item. The order authorizing the budget transfer contains a chart labeled, "Line Item Transfers for Transfer of Mental Health Unit from Dept. 551 [Constable, Precinct One] to Dept. 560 [Sheriff]." Under "Line Item" 1100, "Salaries," it shows the Precinct One current budget allocating a lump sum of $509,370.00, with a transfer to the Sheriff of a lump sum $229,363.49. The transfer budget tracks the format of the county budget with a lump-sum line item for FICA, retirement, and other categories of expenses. Although the County Auditor maintains a budget showing each salary as a separate line item for accounting control purposes, that is not the adopted budget of Williamson County as approved by the County Commissioners Court that was subject to amendment. See Tex. Loc. Gov't Ann. § 111.008 (West Supp. 2007) (adoption of budget), 111.009 (approved budget filed with county clerk and posted on county website).
Conclusion
We have concluded that the budget transfer was authorized by the local government code and did not improperly intrude into Constable Griffin's sphere of authority. Accordingly, the Willliamson County Commissioners Court was entitled to summary judgment in its favor. We affirm the trial court's judgment.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: November 28, 2007
1. This suit was originally brought against Lisa Birkman, Greg Boatright, S. Thomas McDaniel, Frankie Limmer, and John Doerfler. Other than Lisa Birkman, the successors-in-office have been substituted. See Tex. R. App. P. 7.2(a) (automatic substitution of public officer when officer is party in official capacity).
2. The language in the Texas Constitution establishing the "County Commissioners Court" does not use an apostrophe in "Commissioners." See Tex. Const. art. V, § 18; 35 David B. Brooks, Texas Practice: County and Special District Law § 5.2 & n.1 (2d ed. 2002). We will use the spelling as it appears in the Texas Constitution.
3. Ordinarily, a Williamson County constable would only have two deputy constables and an administrative staff member.
4. Because of our disposition of the case, it is not necessary to discuss issues two and three concerning the existence of an emergency. See Tex. R. App. P. 47.1 (opinion to be as brief as practicable, but address every issue raised and necessary to final disposition of appeal).
5. We note that, in his brief, Griffin refers to handling mental health calls "in addition to their 'core' Constable duties serving criminal warrants, civil papers, and providing a bailiff to the JP Court." In other words, Griffin acknowledges that handling mental health calls was not a core function of the office.
In re Ciro Rivera (Tex.App.. - Austin, Nov. 27, 2007)(No. 03-07-00656-CV (Tex.App.- Austin, Nov. 27, 2007)(Opinion by Justice Waldrop ((Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 22nd District Court of Comal County
ORIGINAL PROCEEDING FROM CALDWELL COUNTY
M E M O R A N D U M O P I N I O N
Relator Ciro Rivera's Motion for Temporary Relief and his Petition for Writ of Mandamus are denied.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: November 27, 2007
Appeal from 22nd District Court of Comal County
ORIGINAL PROCEEDING FROM CALDWELL COUNTY
M E M O R A N D U M O P I N I O N
Relator Ciro Rivera's Motion for Temporary Relief and his Petition for Writ of Mandamus are denied.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: November 27, 2007
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