Holbrook v. Guynes, 1

• Decision Date: 12 March 1992
• Docket Number: No. 4,No. 01-91-00113-CV,No. 2,No. 1,1,2,4,01-91-00113-CV
• Citation: 827 S.W.2d 487
• Parties: Ray HOLBROOK, as County Judge for Galveston County; Eddie Barr, as Galveston County Commissioner for Precinct; Frank Carmona, as Galveston County Commissioner for Precinct; Billy Jack Pegues, as Galveston County Commissioner for Precinct; Galveston County; the Galveston County Commissioners Court; Michael J. Guarino, as the Galveston County District Attorney, Appellants, v. Ben M. GUYNES, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 487

827 S.W.2d 487

Ray HOLBROOK, as County Judge for Galveston County; Eddie Barr, as Galveston County Commissioner for Precinct No. 1 Frank Carmona, as Galveston County Commissioner for Precinct No. 2; Billy Jack Pegues, as Galveston County Commissioner for Precinct No. 4; Galveston County; the Galveston County Commissioners Court; Michael J. Guarino, as the Galveston County District Attorney, Appellants, v. Ben M. GUYNES, Appellee.

No. 01-91-00113-CV.

Court of Appeals of Texas Houston (1st Dist.).

March 12, 1992.

Rehearing Denied April 9, 1992.

Scott Lyford, Houston, for appellants.

Anthony P. Griffin, Houston, for appellee.

Before WILSON, SAM BASS and O'CONNOR, JJ.

OPINION

WILSON, Justice.

In the trial court, appellee challenged the legality of the means taken by the Galveston County Commissioners Court to handle its civil legal affairs. Both sides asserted questions of law were determinative of the issues, and filed cross-motions for summary judgment. This appeal arises from the trial court's order that granted appellee's motion for summary judgment, entered a permanent injunction, and denied appellants' cross-motion. We reverse and render judgment for appellants.

The legal staff of an entity known as the Galveston County Legal Department (Department), headed by Harvey Bazaman (Bazaman), handles Galveston County's (County) civil legal business as some portion of its responsibilities. The Galveston County Criminal District Attorney (District Attorney), Michael Guarino (Guarino), represents the County in criminal matters.

Appellee sued appellants requesting, among other things, appellants be permanently enjoined from funding the Department, the entire Department be declared an illegal entity, and the Department be enjoined from holding itself out as the legal representative of the County.

On September 14, 1990, a hearing on appellee's request for temporary injunction was held. ¹ On October 29, 1990, appellants filed a motion for summary judgment seeking dismissal of appellee's entire claim against appellants. On November 12, 1990, appellee answered appellants' summary judgment motion and filed a counter-motion for summary judgment requesting permanent injunctive relief. On January 3, 1991, the judge signed an order granting appellee's summary judgment and denying appellants'.

Appellee did not controvert any of the factual assertions contained in appellants' summary judgment evidence. The only summary judgment evidence before the court from appellants were the affidavits of Bazaman and Guarino. Appellee attached to his motion a Commissioners Court resolution, and a letter signed by Guarino written to Commissioners Court. We find no objections in the record where either side attacked the admissibility of the other's evidence. In fact, appellee supported his position by relying on a portion of one of the summary judgment affidavits filed by appellants.

The Standard of Review

In his brief, appellee refers this Court to oral testimony and exhibits that were admitted into evidence at the temporary injunction hearing. We find no reference in appellee's motion for summary judgment to the hearing on application for temporary injunction. This Court may only consider the record as it appeared when the trial court ruled on the summary judgment motions. City v. Clear Creek Basin Auth., 589 S.W.2d 671, 675-77 (Tex.1979); Velde v. Swanson, 679 S.W.2d 627, 630 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); TEX.R.CIV.P. 166a(c). The record in a summary judgment proceeding consists of the written motion, answer, or other response on file at the time of the summary judgment hearing, and issues not expressly presented to the trial court by written motion, answer or other response cannot be considered on appeal as grounds for reversal. Clear Creek Basin Auth., 589 S.W.2d at 675-77; Velde, 679 S.W.2d at 630; TEX.R.CIV.P. 166a(c). A trial court may not consider evidence, or other matters, in connection with a summary judgment motion not referenced or incorporated into the motion. Gensheimer v. Kneisley, 778 S.W.2d 138, 140 (Tex.App.--Texarkana 1989, no writ); Stewart v. U.S. Leasing Corp., 702 S.W.2d 288, 290 (Tex.App.--Houston [1st Dist.] 1985, no writ); TEX.R.CIV.P. 166a(c).

The statement of facts and exhibits from the temporary injunction hearing are before this Court, but could not be, and apparently were not considered by the judge in ruling on appellee's motion for summary judgment. Only those papers on file at the time of the summary judgment hearing, and only those issues and/or evidence expressly presented to the trial court in writing are properly before this Court. TEX.R.CIV.P. 166a(c). We do not find the trial judge considered any evidence from the temporary injunction hearing and decline to consider any matters from the hearing on application for temporary injunction as within the summary judgment record.

This case involves an appeal from an order granting appellee's motion for summary judgment, and denying appellants' motion for summary judgment. When both parties move for summary judgment, each party must carry their own burden of proof as movant. James v. Hitchcock Indep. School Dist., 742 S.W.2d 701, 703 (Tex.App.--Houston [1st Dist.] 1987, writ denied). The trial court may consider all the summary judgment evidence in deciding whether to grant either motion. Dallas Co. Appraisal Dist. v. Institute for Aerobics Research, 766 S.W.2d 318, 319 (Tex.App.--Dallas 1989, writ denied). The trial court can also rely on one party's evidence to supply missing proof in the other party's motion. Seaman v. Seaman, 686 S.W.2d 206, 210 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).

When both parties move for summary judgment and one motion is granted, but the other motion is denied, this Court should determine all questions presented, and may reverse the trial court's judgment and render such judgment the trial court should have rendered, including rendering judgment for the other movant. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988, orig. proceeding).

This Court reviews the record of a summary judgment in accordance with the following standards: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Powers of the District Attorney and the Commissioner's Court

(a) The criminal district attorney of Galveston County.... shall exclusively represent the state in all criminal matters before those courts. He shall represent Galveston County in any court in which the county has pending business.

(b) The criminal district attorney has all the power, duties and privileges in Galveston County that are conferred by law on county and district attorneys in various counties and districts.

TEX. GOV'T CODE ANN. § 44.184(a) & (b) (Vernon 1988) (emphasis added).

(b) The County Commissioners so chosen ... 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(b).

Claims by the Parties in the Trial Court

Appellee, a taxpayer and resident of Galveston County, claimed the District Attorney has a statutory duty under article 44.184(a) to represent the County in all of its civil matters. Appellee claimed that the Department is an illegal entity, because it performs nondelegable functions exclusively imposed by law on the District Attorney. For these reasons, appellee claimed any attempts by appellants to fund the Department should be prohibited, and the Department should be enjoined from handling the County's civil matters, or holding itself out as the legal representative of Galveston County.

Nowhere does appellee argue that the actions of the Commissioners Court and the District Attorney were not taken in good faith. Appellee's legal position precludes good faith as an issue, simply stating the County can not do by statute what it is in fact doing.

Appellants claimed it is permissible for the Department to assist the District Attorney in the discharge of his statutory duties as long as the Department does not usurp the District Attorney's power to perform those duties, and the District Attorney does not delegate his statutory duties to the Department.

The Summary Judgment Proof

Appellants filed two affidavits in support of their summary judgment motion. Harvey Bazaman's affidavit stated:

1) He (Bazaman) had been head of the Department since 1985;

2) He was an original member of the Department when it was established in 1978;

3) Department has four attorneys and two secretaries as of October 29, 1990;

4) Department conducts litigation, both defense and prosecution, for the County (Galveston), and other governmental entities related to the County, such as the Beach Parks Board, Mainland Center Hospital, (debt collection, e.g.), and the Galveston County Health District (enforcement of rules and regulations, e.g.);

5) Department represents officers and employees sued in course and scope of their official duties;

6) Department represents County in negotiations, often prior to any legal action being filed, with people who file claims against the County for alleged wrongdoing;

7) Department administers the County's workers compensation program, and represents County before Industrial Accident Board;

8) Department provides legal advice and other noncourt related legal services to the County, its officials, and its employees virtually on a daily basis;

9) Representing the County in court is probably less than 10% of what the...