Mays v. Fifth Court of Appeals

• Decision Date: 22 June 1988
• Docket Number: No. C-7342,C-7342
• Citation: 755 S.W.2d 78
• Parties: The Honorable Richard MAYS, Judge, et al., Relators, v. The FIFTH COURT OF APPEALS, Respondent.
• Court: Texas Supreme Court

Page 78

755 S.W.2d 78

The Honorable Richard MAYS, Judge, et al., Relators, v. The FIFTH COURT OF APPEALS, Respondent.

No. C-7342.

Supreme Court of Texas.

June 22, 1988.

Rehearing Denied Sept. 14, 1988.

Kerry W. Young, Dallas County Criminal Dist. Courts, Dallas, for relators.

Earl Luna and Mary Milford, Law Offices of Earl Luna, Dallas, for respondent.

OPINION

RAY, Justice.

This case, involving a salary increase for court reporters, is governed by TEX.GOV'T CODE ANN. § 52.051 (Vernon 1988). Some of the District Judges of Dallas County ordered a 5% salary increase for their court reporters pursuant to that statutory authority. However, the Dallas County Commissioners Court passed an order instituting only a 3% pay increase for the court reporters, but ordered an additional 2% increase to be paid effective October 1, 1987, if a court should determine that § 52.051 is constitutional. The Commissioners Court then filed in the district court a petition for declaratory judgment asserting that § 52.051 unconstitutionally circumscribes the authority of the Commissioners Court to set the tax rate for the county. See TEX.CONST. art. VIII, §§ 1-A, 9.

When the Commissioners Court refused to fund the 5% raise, the Judges ordered them to direct the County Treasurer to issue payroll checks to the court reporters reflecting the 5% salary increase. ("The October orders"). The Commissioners Court did not comply and the Judges issued show cause orders. The Commissioners Court then filed for mandamus relief with the Dallas Court of Appeals which found that: (1) the orders actually direct action and, therefore, were essentially writs of mandamus orders made without notice and hearing to the Commissioners Court; (2) the Judges contravened TEX.R.CIV.P. 694 because a mandamus cannot issue ex parte; (3) the Commissioners Court was entitled to notice and a hearing on the October orders; and (4) it appeared at oral argument that the Judges would not vacate the orders on motion as required by TEX.R.CIV.P. 694. Accordingly, the court of appeals ordered the Judges to vacate their October orders. 747 S.W.2d 842, 847 (1988).

This case is controlled by TEX.GOV'T CODE ANN. § 52.051 (Vernon 1988) which provides:

(a) An official district court reporter shall be paid a salary set by the order of the judge of the court. This salary is in addition to transcript fees, fees for a statement of facts, and other necessary expenses authorized by law.

* * *

(c) An order increasing the salary of an official district court reporter must be submitted to the commissioners court of each county in the judicial district not later than September 1 immediately before the adoption of the county budget for the next year. A commissioners court may allow an extension of this time limit.

The District Judges complied with § 52.051(a) and (c) in that they ordered a 5% pay raise within the time period prescribed by the statute.

We hold that the pay increase, which was less than the 10% increase authorized by § 52.051(d), was a ministerial act to be performed by the Commissioners Court and an act in which the Legislature left no discretion. The Commissioners Court acted in violation of the statute in not setting the salaries prescribed by the District Judges pursuant to § 52.051. The court of appeals erred in granting mandamus relief in favor of the Commissioners Court against the District Judges since the granting of the pay raise was a nondiscretionary ministerial act. See Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104, 109 (Tex.1981). The performance of a clear statutory duty which is ministerial and nondiscretionary may be directed by the District Court without notice and hearing in the absence of a statutory requirement to the contrary. Section 52.051 does not require the District Judges to provide notice and hearing.

The Texas Constitution has invested the Legislature with the authority to provide for and compensate the district court reporters. TEX.CONST. art. III, § 44. The Legislature has in turn delegated to the District Judges the responsibility for setting the salaries of the district court reporters paid from county funds. TEX.GOV'T CODE ANN. § 52.051 (Vernon 1988). By virtue of its express constitutional and statutory authority, the District Judges' actions have a presumption of validity and are subject to being abrogated by the Commissioners Court only upon proof that the judiciary's actions are extravagant, arbitrary, or unwarranted. See District Judges of the 188th Judicial District v. County Judge and Commissioners Court for Gregg County, 657 S.W.2d 908, 910 (Tex.App.--Texarkana 1983, writ ref'd n.r.e.). We are confident that the court of appeals will vacate its order issuing writ of mandamus. We note that the Commissioners Court has filed a petition for declaratory judgment that § 52.051 is unconstitutional. The issues in that lawsuit are not before us and we express no opinion regarding the statute's constitutionality.

SPEARS, J., concurs and WALLACE, ROBERTSON, KILGARLIN and MAUZY, JJ., join.

SPEARS, Justice, concurring.

I concur in the court's opinion authored by Justice Ray. I would go further and hold that, even in the absence of a statutory provision, a court has the inherent power to compel the expenditure of those public funds which are reasonably necessary for the court to efficiently fulfill its constitutional function. Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104, 109-110 (Tex.1981); see also Eichelberger v. Eichelberger, 582 S.W.2d 395, 398-399 (Tex.1979). On this basis alone, a district judge may set a reasonable salary for a court reporter.

Like the power to punish for contempt, a court's inherent power to compel funding flows from the law of self-preservation. No legislative authority, state or local, can so tighten the purse strings of the judiciary's budget that it fails to provide the funds reasonably necessary for the court's efficient and effective operation. To adhere to any contrary view would effectively concede to the legislature the power to render inoperative the judicial branch of government. It could force the judiciary into the role of a subordinate and supplicant governmental service--in effect, a mere agency. ¹ The judiciary is not an agency, but is a constitutionally established separate, equal and independent branch of government. See LeCroy v. Hanlon, 713 S.W.2d 335 (Tex.1986).

The courts of Texas derive their judicial power directly from the constitution. Tex. Const. art. V, § 1. This inherent power of the courts to preserve their efficient functioning thus derives from the very creation of the judiciary as a separate branch of government. Indeed, the Texas Constitution not only mandates that the courts shall exercise the judicial power of the state but also expressly mandates a separation of governmental powers into three distinct branches. ² Tex. Const. art. II, § 1. The purpose behind the separation of governmental powers was to avoid the concentration of political power in the hands of a few--i.e. to avoid tyranny. See 1 Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 89 (1977), citing The Federalist No. 47 (J. Madison).

Thus, this inherent power of the courts is necessary not only to preserve the judicial branch of government, but also to preserve for the people their security and freedom. The judicial power provides a check on the abuse of authority by other governmental branches. If the courts are to provide that check, they cannot be subservient to the other branches of government but must ferociously shield their ability to judge independently and fairly. This is the essence of our very existence; we owe the people of Texas no less than our unflinching insistence on a true tripartite government. It is the responsibility of this court to preserve this constitutional framework.

The inherent power of the courts to compel funding thus arises out of principles and doctrines that are so thoroughly embedded as to form the very foundation of our governmental structure. The judiciary may often be denominated as the "third" branch of government, but that does not mean it is third in importance; it is in reality one of three equal branches. ³ As such, the judiciary is an integral part of our government and cannot be impeded in its function by legislative intransigence in funding.

The proposition that courts possess the inherent power to compel the expenditure of public funds for their own operation is not a recent innovation. Nationwide, courts have used their inherent powers to compel funding for a wide variety of essentials. As far back as 1874, the Wisconsin Supreme Court declared that its janitor was a skilled, confidential employee and held:

It is a power inherent in every court of record, and especially courts of last resort, to appoint such assistants; and the court itself is to judge of the necessity.

In re Janitor of Supreme Court, 35 Wis. 410, 419 (1874). In 1902, the Nevada Supreme Court requested chairs and carpet from the Board of Commissioners which, by statute, controlled the expenditure of all appropriations for furnishing, maintaining and repairing the capitol buildings and grounds. When the Board refused the request, the court itself made the purchase and then ordered the Board to pay the bill. The court stated:

If this Board has the absolute control, as claimed, then, by refusing to furnish the courtroom with a stove or other means of heating, could it obstruct the court in its jurisdiction during a greater part of each year. By refusing tables it could prevent the court making records required by law. To assume that the legislature did confer any such absolute power upon the Board is to assume that the legislature possesses unlimited power of legislation in that matter,--that it could by hostile legislation destroy the judicial department of the government of this state.

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