As I have established the Council of Judges was created as a result of a defect in the judiciary in El Paso. Its function is to enforce the original mandate to provide legal representation to indigent defendants in court. It is unique to El Paso. Because the Council of Judges was established through stop-gap appropriations at the local level and then the state level somehow, it is unclear how, it seems to have gained superior authority over the elected officials and has steadily attempted to increase its control. The latest power struggle is between Veronica Escobar and her side-kick Vince Perez versus the Council of Judges.
The prize is the County’s budget. Remember the County has no authority to create law and therefore its power lies squarely on the ability to manage the budget. It is also important to remember that the county’s budget is really many budgets each under the direction of an elected official. Therefore the county commissioners ultimately wield authority over many elected departments by their ability to control the county’s budget.
Until recently the county’s budget was a shared authority, tenuous at best yet shared by the fact that the Council of Judges supervised the County’s auditor. First Veronica Escobar attempted to create a centralized county authority under the auspices of a county manager. Her goal, in my opinion, was to centralize power under her authority. When that attempt failed, Vince Perez moved to take control of the finances by challenging the notion that the Council of Judges should not have oversight over the county’s auditor.
In response, the Council of Judges flexed their inherent authority by showing their control over the budget by unilaterally raising fees for indigent representation.
This is not the first time they have attempted to take control of the budget as they have attempted this before.
In 2001 and early 2002 county commissioners commissioned a study to analyze the county’s space allocation over the next two decades. The study was commissioned as a result of $65 million in certificates of obligations the court had authorized for the expansion of the courthouse and parking garage.
In March 2003, county commissioners voted to expand the county courthouse by building in front of the existing structure. Two competing commissions were created; one led by Dan Haggerty and another by the Council of Judges that included Patricia Macias, Linda Chew, Sam Medrano, Javier Alvarez and Luis Aguilar, all judges at the time.
On December 21, 2004, the judicial-based commission adopted a resolution stating that El Paso County needed additional courtroom space. The resolution requested that the County Commissioners “immediately proceed with building the annex” consistent with their December 16, 2004 plan that called for the expansion to be built in front of the existing structure.
In 2005, Haggerty’s commission met with the Council of Judges in an attempt to get them to agree to build the annex across the street from the downtown jail. Unable to convince Haggerty’s commission to build the expansion in front of the existing building, the Council of Judges used its supervisory powers over the Commissioners Court by filing a judicial order styled; “El Paso County Commissioners Court and Courthouse Expansion” through a district court. The order was issued by Gonzalo Garcia.
It is important to note that the order was filed in court without a lawsuit having been filed. In other words, and as best as I can understand it, a judge, in this case Garcia, issued a court order without having a lawsuit filed first.
It is also important to point out that the “factual basis” of the order was derived from an affidavit produced by County Auditor Edward Dion. The court order details that the county commissioners issued about $21 million in debt to expand the courthouse, commissioned a study for the expansion that determined the most cost effective expansion was in front of the existing structure and that the commissioners were spending the funds on other projects unrelated to the court expansion.
Basically the court order wanted to stop the county commissioners from spending money it had allocated on the courthouse expansion on other projects, without the Garcia’s authority. On March 14, 2005, the commissioner’s court charged that Gonzalo Garcia was not impartial and moved to recuse him. On March 23, 2005, Stephen Ables, judge of the Sixth Administrative Judicial Region of Texas refused to recuse Garcia from the case.
Following that, Gonzalo Garcia held a status conference where he stated that “El Paso County Commissioners would be considered ‘witnesses’…and subpoenas would be issued.” He also informed everyone that he would be participating in the examination of witnesses.
As a layperson it clearly reads to me as a Star Chamber type of proceeding.
The Eighth Court of Appeals issued an opinion as a Mandamus on May 18, 2005.
Lucky for me, the Mandamus helpfully explains the proceeding and how the court came to be involved. Obviously the county commissioners filed the writ as a response to the Council of Judges attempt to control the county’s budget.
According to the Mandamus, a Mandamus is issued to “correct a clear abuse of discretion”. It goes on to state the “appellate court will deny mandamus relief if another remedy” is “available and adequate”. The Mandamus goes on to explain that the district courts have supervisory authority over commissioners’ court when the elected officials act “beyond” their jurisdiction or “clearly” abuse their authority. In response to this, the appeal court ruled that the order could not be issued because no suit had been filed.
In addressing the issue of under what circumstances does a district court have authority over the commissioners’ court, the Mandamus points out another attempt in 1989 by the Council of Judges to intervene in the county’s budget. That matter also involved the county courthouse. The appeals court found that Gonzalo Garcia’s court proceeding exceeded his authority because there was no basis from which to issue his order and because he overreached the “inherent authority” doctrine and because in so doing the county commissioners were left without an opportunity to appeal his judicial rulings.
As far as I understand it a Mandamus is issued only under extreme circumstances and even acknowledging that Gonzalo Garcia was overstepping his authority the appeals court gave him an opportunity to avoid the Mandamus by ordering him to repeal his order and stop his court proceedings. They threatened to impose the Mandamus if he did not stop immediately.
The appeals court stopped an attempted takeover of the elected body of the county by the Council of Judges. However the power struggle is far from over. Tomorrow we’ll look into the latest volley in this continued power struggle.