Krier v. Navarro, 04-96-00485-CV

• Decision Date: 02 July 1997
• Docket Number: No. 04-96-00485-CV,04-96-00485-CV
• Citation: 952 S.W.2d 25
• Parties: Honorable Cyndi KRIER, Roy Barrera, Jr., Gerry Rickhoff, Rudy A. Garza and Leo Pacheco in their Official Capacities, and Bexar County, Appellants, v. Eduardo D. NAVARRO, Appellee.
• Court: Texas Court of Appeals

Page 25

952 S.W.2d 25

Honorable Cyndi KRIER, Roy Barrera, Jr., Gerry Rickhoff Rudy A. Garza and Leo Pacheco in their Official Capacities, and Bexar County, Appellants, v. Eduardo D. NAVARRO, Appellee.

No. 04-96-00485-CV.

Court of Appeals of Texas San Antonio.

July 2, 1997.

Rehearing Overruled Sept. 10, 1997.

Leslie J.A. Sachanowicz, Jennifer S. Badger, Magda L. DeSalme, Assistant Criminal District Attorney, Civil Section, San Antonio, for appellant.

Mayo J. Galindo, San Antonio, for appellee.

Before STONE, GREEN and DUNCAN, JJ.

STONE, Justice.

This appeal presents the issue of whether an elections administrator appointed pursuant to section 31.032 of the Texas Election Code is a public officer or a public employee. Eduardo Navarro, the former Bexar County elections administrator, claims he served in that capacity as an employee and that he could be terminated only for cause within the statutory framework detailed in the Texas Election Code. Appellants, Bexar County and the individual members of the Bexar County Elections Commission, claim Navarro served as a public officer within the meaning of article XVI, section 30(a) of the Texas Constitution, which limits public officers' employment to renewable two-year terms. For the reasons stated herein, we hold that an elections administrator is an employee.

PROCEDURAL AND FACTUAL BACKGROUND

Eduardo Navarro was appointed Bexar County elections administrator on September 8, 1993. On December 1, 1995, the Bexar County Elections Commission unsuccessfully attempted to remove Navarro from this position. Proceeding under section 31.037 of the Election Code, which provides for dismissal of the elections administrator for good cause by four-fifths vote, the Commission lacked the necessary votes for removal. The Commission then voted to accept an opinion from the Bexar County District Attorney stating that an elections administrator is a public officer within the meaning of article XVI, section 30(a) of the Texas Constitution, and is limited to a two-year term. Since Navarro had already served two years and a majority of the Commission did not want to renew his term, the Commission declared the office vacant and passed a motion to advertise and solicit applicants for the position of elections administrator.

On December 6, 1995, Navarro filed suit against Bexar County and the individual members of the Elections Commission (collectively "the county") to enjoin his removal and obtain a declaratory judgment to determine whether an elections administrator is a public official and thus subject to the constitutionally-mandated term limit. The trial court ruled that an elections administrator is an employee rather than a public official, and permanently enjoined the county from removing Navarro unless (1) at least four members of the Elections Commission voted to dismiss Navarro for good cause pursuant to section 31.037 of the Election Code, or (2) Commissioners Court abolished the position of elections administrator. The trial court also awarded Navarro attorney's fees.

On appeal, the county challenges the trial court's jurisdiction, the court's characterization of an election administrator as an employee rather than a public officer, and the attorney's fees award. ¹

JURISDICTION

A. Presentment

The county contends the trial court lacked jurisdiction because Navarro did not present his claim to Commissioners Court before he filed suit, which the county asserts is a jurisdictional requirement imposed by the Local Government Code. The county also claims the trial court lacked jurisdiction because no justiciable controversy existed. Thus, the county claims the court erred in failing to dismiss the case and in granting Navarro's injunction. We reject both contentions.

Section 81.041 of the Local Government Code provides:

(a) A person may not sue on a claim against a county unless the person has presented the claim to the commissioners court and the commissioners court has neglected or refused to pay all or part of the claim.

(b) If the plaintiff in a suit against a county does not recover more than the commissioners court offered to pay on presentation of the claim, the plaintiff shall pay the costs of the suit.

TEX. LOC. GOV'T CODE ANN. § 81.041 (Vernon 1988). It is undisputed that Navarro did not present his claim to Commissioners Court before filing his suit. This omission, however, has no bearing upon the trial court's jurisdiction.

By its very terms, section 81.041 controls when the suit involves a claim in which the plaintiff seeks payment of money from a county. The statute refers to claims that the county has "neglected or refused to pay," and provides for payment of costs of suit depending on how much the county "offered to pay " on a claim. Id. (emphasis added). In short, the statute applies to suits against a county seeking money damages, and thus was not triggered when Navarro sought declaratory and injunctive relief. See Dallam County v. S.H. Supply Co., 176 S.W. 798, 804 (Tex.Civ.App.--Galveston 1915, writ ref'd) (holding under predecessor statute that plaintiff not required to present claim to Commissioners Court in suit to bind county to title); Comanche County v. Burks, 166 S.W. 470, 474 (Tex.Civ.App.--Fort Worth 1914, writ ref'd) (holding under predecessor statute that action to enforce trust requiring county to hold school lands and proceeds from lands in trust for public schools did not seek recovery of a debt or damages and did not require presentment of claim before suit is filed). Since Navarro did not present a monetary demand, he was not bound by the provisions of section 81.041.

B. Justiciable Controversy

Alternatively, the county argues the trial court lacked jurisdiction because no justiciable controversy existed. The county claims that there must be an arguable violation of the statute for a genuine controversy concerning the construction or validity of a statute to exist. See Laborers' Int'l Union of North America, Const. & Mun. Workers Local Union No. 1253 v. Blackwell, 482 S.W.2d 327, 329-30 (Tex.Civ.App.--Amarillo 1972, no writ). The county claims that because Navarro maintained his position as the elections administrator. At the time of trial, no statute had been violated.

The actions of the Elections Commission provided Navarro with a basis to invoke the jurisdiction of the court. A threatened wrong is a sufficient basis for granting injunctive relief, see Godley v. Duval County, 361 S.W.2d 629, 630 (Tex.Civ.App.--San Antonio 1962, no writ), and a threatened ouster or threatened claim is sufficient to invoke declaratory judgment proceedings. Ainsworth v. Oil City Brass Works, 271 S.W.2d 754, 761-62 (Tex.Civ.App.--Beaumont 1954, no writ). Further, section 37.004 of the Texas Civil Practice and Remedies Code specifically authorizes a suit to construe a statute when an individual's rights, status, or other legal relations are affected by the statute. The facts of the instant case fall squarely within these named categories. Following the Election Commission's unsuccessful attempt to remove Navarro, it passed two motions which bear upon the issue of the trial court's jurisdiction. The first motion reflected the Commission's intent to accept an opinion from the District Attorney stating that the elections administrator holds a public office within the meaning of article XVI, section 30 of the Texas Constitution, and that Navarro, having already served two years, was in a holdover status. The second motion stated that the Commission would solicit applications for Navarro's vacancy. These actions clearly threatened Navarro's position and provided a sufficient basis for injunctive relief and a declaratory judgment. Because we hold the trial court had jurisdiction to hear Navarro's claim, we overrule point of error number one.

CHARACTERIZATION OF ELECTIONS ADMINISTRATOR

The county's second point of error challenges the trial court's determination that an elections administrator is not a public officer. In its third point of error, the county challenges the trial court's determination that the Legislature intended to shield an elections administrator from removal except upon compliance with the safeguards set forth in the Election Code. The county's fifth point of error challenges the trial court's injunction, which was based on its finding that Navarro was not an officer subject to a two year term of office.

A. Sovereign Function of Government

In support of its argument that an elections administrator is a public officer, the county relies on Aldine Independent School District v. Standley, in which the Texas Supreme Court defined a public officer as one upon whom "[a]ny sovereign function of the government has been conferred ... to be exercised by him for the benefit of the public largely independent of the control of others." Aldine Indep. Sch. Dist. v. Standley, 154 Tex. 547, 280 S.W.2d 578, 583 (1955) (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex.Civ.App.--Galveston 1949, writ ref'd)). In Aldine the supreme court held that a tax assessor-collector for a school district was an employee rather than a public officer as defined by the Constitution. In reaching this conclusion the court made the following observation:

It is claimed by respondent that the assessing and collecting of taxes is a part of the sovereign power of the State. That is correct, but a reading of the statutes relative to the assessment and collection of taxes, as above set forth, shows that this power is lodged by the Legislature and Constitution in the school board, and not in the office of the assessor-collector. He is but an agent or employee of the Board to discharge the clerical duties necessary to carry out the school Board's powers of taxation.

Id. In line with Dunbar, the county argues the elections administrator performs a sovereign function of the government and therefore the first prong of the Aldine definition of "public officer" is...