Maverick County Commissioners Court approve Order to District Judges they Investigate and Remove County Auditor

By: Jose G. Landa, Copyright 2015, Eagle Pass Business Journal, Inc.

Maverick County Commissioners Court approved to issue an Order to State District Judges Amado J. Abascal, III, and Cynthia Muniz that they investigate and remove County Auditor Fidencio Ortiz for alleged non-performance of his duties and incompetence and authorizing special legal counsel Luis R. Vera, Jr. to represent Commissioners Court in the event of any Show Cause Orders and to seek Mandamus Relief to the Texas Fourth Court of Appeals at a special meeting held on Thursday, January 29, 2015, at Commissioners Courtroom in Eagle Pass, Texas.

Under agenda item No. 31 calling for the discussion and possible action to withhold Maverick County Auditors salary as a result of non-compliance as previously discussed in Commissioners Court, Maverick County Judge David R. Saucedo requested that the item be taken into Executive Session to further discuss with Special Legal Counsel Luis R. Vera, Jr.

Once back in Open Session, Judge Saucedo asked if any Commissioner had any specific motion to make concerning agenda item No.31.

County Commissioner of Precinct 4 Roberto Ruiz said that he would like to make a motion.

“ I motion that Maverick County Commissioners Court issue an Order requesting that the appropriate District Court Judges investigate and remove the Maverick County Auditor Fidencio Ortiz effective immediately because of demonstrated un-remediated lack of competence in public business details and a lack of competence in faithfully discharging the duties of County Auditor, including, but not limited, to: official misconduct defined as a corrupt failure, refusal or neglect to perform his duties as imposed by law. Furthermore, the Maverick County Commissioners Court directs Legal Counsel to take all appropriate legal actions to protect the County’s legal interest, including, but not limited, to: responding to potential Show Cause Orders issued by the District Judges and seeking Mandamus Relief where appropriate,” moved Commissioner Ruiz. Commissioner Jose Luis Rosales seconded the motion.

During discussion, Commissioner Gerardo “Jerry” Morales raised his hand and asked Judge Saucedo that he had a question for Special Legal Counsel Luis R. Vera, Jr. if Commissioners Court could take such action as moved by Commissioner Ruiz given the language stated in Agenda Item No. 31, which expressly stated: “Discussion and possible action to withhold Maverick County Auditor’s salary as a result of noncompliance as previously discussed in Commissioners Court.”

Commissioner Morales asked the million dollar question: “The way the item is written can we take action on the motion the way was read by Ruiz based on how the item is written?”

Special Legal Counsel Vera quickly answered Commissioner Morales’ important legal question by stating: ” In our legal opinion, yes, you can. You have posted for the public’s knowledge to know that your discussion today would be about the County Auditor and that you would be discussing removal of the County Auditor and how that could be accomplished. You could be discussing any issues having to do with his salary again that would be part of the removal. So what you were doing is what the legislature has given you the power to do, and that is to begin taking steps to order the only people who have the power to appoint them, that is the County Judges (sic) and instructing them to their job….The law says that the legislature in the State of Texas gave the District Judges and only the District Judges the power to appoint the County Auditors, so it gave the judges the power to remove. They set their salaries. The Legislature gave you the power to protect the taxpayers of your County and make sure there is sufficient funds there to pay those debts and those duties you owe to the taxpayer. Now, Maverick County has run into a dilemma where you have a County Auditor is not allowing you to do your job. Because you can’t do your job, you are now demanding that the District Judges do their job. And that is, get rid of this Auditor. If you are not going to make him do his job, get rid of him, and you get us a County Auditor that is going to do their job. The legislature then says that if the district judges refuse to do their job, that is, get you a competent Auditor, then your next step in protecting the taxpayers of Maverick County is to seek Mandamus, that is, you go to a higher court which is the Fourth Court of Appeals asking them to order the District Judges to do their job.”

Special Counsel Vera added: “It is your job mandated by the legislature to protect your taxpayers and your taxpayers only, and that is what you are doing. It is appropriate what you are doing, the way that it has been posted. It all has to do with the Auditor, his job, job performance, salary and his removal.”

Judge Saucedo asked if there were any other questions and there were none.

Judge Saucedo called for a vote of Commissioner Ruiz’s motion. Commissioners Court approved the motion with County Judge Saucedo and Commissioners Ruiz, Rosales, and Morales voting in favor while Commissioner Rosy Cantu abstained.

Special Legal Counsel Vera was joined at the meeting by two legal associates who accompanied him from San Antonio.

County Judge Saucedo stated that Commissioners Court will now go forward.

Texas law is quite clear that Commissioners Court do not have the legal authority to appoint, terminate, or remove a County Auditor. Rather, only the District Judges of a County are legally authorized to appoint, terminate, or remove a County Auditor.

Commissioners Court action in issuing an Order against District Judges Abascal and Muniz to do their job to investigate and remove County Auditor Ortiz places them in an adverse and confrontational situation with the District Judges, which may result in possible Show Cause Orders against the Commissioners who voted in favor of the motion to Order the District Judges what to do. Furthermore, Commissioners Court may just get their wish for a Mandamus action before the Texas Fourth Court of Appeals in San Antonio.   If further legal action results from this matter, Maverick County taxpayers will have to foot the additional legal fees, court costs, and expenses of Special Legal Counsel Vera while Maverick County is already paying for a General Counsel on a monthly basis.

District Judges Abascal and Muniz appointed County Auditor Ortiz in September 24, 2012 to a two year term. On October 10, 2014, Judges Abascal and Muniz split on re-appointing Ortiz as County Auditor with Abascal in favor and Muniz against. Judges Abascal and Muniz’s split has caused former Texas Governor Rick Perry to appoint 38th Judicial District Judge Camile Dubose of Uvalde County, Texas, as the third District Judge to meet with Judges Abascal and Muniz to determine who should be appointed County Auditor. However, due to an illness of one of the District Judges, this three-judge meeting has been unable to be scheduled. A three-judge meeting should be scheduled in the immediate future to resolve this issue.