District Judge Amado Abascal issues Order against Maverick County Commissioners Court for stopping County Auditors salary
By: Jose G. Landa, Copyright 2014, Eagle Pass Business Journal, Inc.
365th Judicial District Judge Amado J. Abascal, III, issued an Order Vacating Maverick County Commissioners’ Court Action on Friday, November 21, 2014, at 3:50 P.M., vacating, setting aside, and declaring null and void the action taken on November 17, 2014 by the Maverick County Commissioners Court, comprised of County Judge David R. Saucedo and Commissioners Roberto Ruiz, Asalia Casares, Jose Luis Rosales, and Gerardo “Jerry” Morales, to stop the salary payment of Maverick County Auditor Fidencio Ortiz.
District Judge Abascal further orders that “Maverick County Auditor Fidencio Ortiz shall continue to be paid his full salary and fringe benefits which he was receiving prior to the action taken by the Commissioners’ Court at the meeting of November 17, 2014, which action purported to stop payment of the Auditor’s salary.”
District Judge Abascal found that Maverick County Commissioners Court action on November 17th of stopping the salary payment of County Auditor Ortiz violates Article II, Section 1, of the Texas Constitution, and Article XVI, Section 17, of the Texas Constitution, and Sections 84.002 and 84.009 of the Texas Local Government Code, and Texas legal precedent in the case of McGuire v. City of Dallas, 170 S.W. 2d 722 and Morrison v. City of Fort Worth, 155 S.W. 2d 098.
Judge Abascal found that the Maverick County Commissioners Court action of November 17th stopping the salary payment of the County Auditor “has the direct effect of causing Maverick County Auditor Fidencio Ortiz to perform all of his constitutional and statutory duties without compensation, which not even he can agree to do,…and certainly not be compelled to do by the Maverick County Commissioners’ Court. Said action also has the potential effect of causing an officeholder to resign as County Auditor due to an expectation of not being compensated even though compensation is an incident to his title to office. This was nothing less than an end around to force a desired result which the Commissioners’ Court has no authority to create. The Court finds that such resolution and action taken by the Commissioners’ Court are in contravention of the Constitution and statutory mandates above cited and in direct violation of the Commissioners’ and County Judge’s official oaths of office to uphold the Constitution and laws of the State of Texas.”
Judge Abascal further found that “the Commissioners’ Court of Maverick Count has exceeded its authority by usurping powers not belonging to it, and therefore, said act of purporting to stop the payment of the County Auditor’s salary by said Commissioners’ Court is a nullity and is not binding whatsoever.”
Judge Abascal notes that pursuant to the Texas Constitution, Section 84.001 et seq of the Texas Local Government Code, and legal case precedent clearly provides that a County Auditor’s salary can only be stopped or terminated by the District Judges of the County whom appointed him as County Auditor.
Judge Abascal noted that “the auditor is not appointed by any elected body or officer who administers or determines county policy and is to be left entirely free from the control of these officers’,…therefore, the County does not have the requisite right of control over the County Auditor, and the County Auditor is not subject to the orders of the Commissioners’ Court.”
Judge Abascal noted that Maverick County Auditor Fidencio Ortiz was appointed on September 19, 2012, by the district judges of Maverick County and that the auditor be compensated. County Auditor Ortiz’s two-year term appointment expired on September 24, 2014. Judge Abascal notes that “at a special meeting of the district judges of Maverick County held on October 10, 2014, for the purpose of appointing a County Auditor only [Judge Abascal] announced an appointee for County Auditor for the new term. The district judges, therefore, failed to satisfy the requirements of Section 84.003, Texas Local Government Code, that the auditor be appointed by a majority of the district judges. Consequently, Mr. Ortiz was not re-appointed, but neither was his successor. Accordingly, Mr. Ortiz is a public officer and holds a civil office of emolument…within this state, and has neither resigned his office or been removed by a majority of the district judges,…he shall continue to perform the duties of County Auditor until his successor shall be duly qualified.”
Judge Abascal pointed out that “the pronouncement that the County Auditor would continue to serve in such capacity was made by [Judge Abascal] at the special meeting of the district judges on October 10, 2014. This Court will take judicial notice that at least one member of the Commissioners’ Court, that being Commissioner Roberto Ruiz, was a public member who was present as such meeting. And, further, the minutes of the Commissioners’ Court accepted a purported transcript of the district judges’ special meeting of October 10, 2014, in order to base themselves on their decisions. The Commissioners’ Court, therefore, knew or should have known that Mr. Ortiz would be continuing to serve as Maverick County Auditor until his successor was qualified. Mr. Ortiz, as County Auditor, is entitled to his compensation as an incident to his office. The fact that the Auditor was entitled to be compensated was a matter of record by prior district judges(s)’ Orders and which Orders the Commissioners’ Court was directed to observe.”
Judge Abascal orders Maverick County Commissioners Court
“to immediately and lawfully convene to act upon these Orders or Show Cause Orders will issue to compel compliance with the Orders of this Court.”
Thus, Maverick County Commissioners’ Court action taken on November 17th of stopping payment of County Auditor Fidencio Ortiz’s salary was unconstitutional, unlawful, and null and void. Now they will have to convene and act to rescind their unlawful action taken on November 17th against County Auditor Ortiz.
Since District Judges Abascal and Cynthia Muniz split on the appointment of a County Auditor at their October 10th special meeting, Section 84.003 of the Texas Local Government Code requires that they write a letter to Governor Rick Perry to appoint a third district judge to act and vote with the district judges of Maverick County to select a County Auditor. Judge Abascal wrote a letter to Governor Perry on November 19, 2014 requesting the appointment of a third district judge.
