fl 5 '- H. T. Vondy WWSUHHEWECQURT Appellant (fifjgnaw pH Vs. No. 5467—-Appeal from Uvalde County QUIEZ 5 AQENU Commissioners Court of Uvalde County, Texas et al Gammaom N‘JflfiflKUEflflHfiIEWV my N n r U A _ .

Appellees «~«wvwfls,~_wxfle_,uuwwiv H. T. Vondy sought a writ of mandamus against the Commissioners Court of Uvalde County, Texas and only four of its five members, County Judge J. R. White, Commissioners Gene Ilse, Gilbert Torres, and Norment Foley, to compel them to set a reasonable salary for the office of Constable, Precinct #6 of Uvalde County, Texas. CommiSSioner Woodrow Head was not named as a party. The trial court entered judgment denying any relief. Vondy appeals. We vacate the Judgment and dismiss the cause.

Vondy was duly elected to the office of Constable, Precinct #6, Uvalde County, Texas on November 7, l978, at the general election. He took the oath of office on January 1, 1979, and entered upon his duties as Constable. Vondy appeared before the Commissioners Court on more than one occasion requesting a reasonable salary be set for his office. The named defendant members of the court all voted not to set a salary for the office. Vondy contends that the CommiSSioners Court and its members are mandated to fix a salary pursuant to the provisions of TEX.REV.CIV.STAT.ANN. art. 38831 S l (l966).

We Will not consider the merits of this case because Woodrow Head, one of the duly elected members of the CommiSSioners Court of Uvalde County, was not made a party in the instant cause. In the early case of Gaal v. Townsend, l4 S.W 365 (Tex.l890), an action was brought to procure a writ of mandamus to compel the county judge to permit the appellant to perform his duties as a county commissioner. The other members of the Commissioners Court were not made parties to the suit. The court said We think it is a general rule that, when the performance of a duty is sought to be compelled by the writ of mandamus, all persons charged with the performance of that duty must be made parties defendant in the writ....

In a proceeding by mandamus to compel a body of persons to perform an act, all whose duty and privilege it may be to participate in the performance of that act must be made parties defendant.

All the commissioners were charged with the performance of the duty of determining the salary to be paid to Vondy. Woodrow Head's absence is fundamentally ,5 ¥ | r - erroneous and is noted by this court on its own motion. Petroleum Anchor Equipment v. Tyra, 406 S.w.2d 891 (Tex.l966). We believe this to be true even though the court in Cooper v. Texas Gulf Industries, Inc., 513 S.w.2d 200 (Tex.l974) said: Under the provisions of our present Rule 39 it would be rare indeed ii there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined.

We hold the absence of Head in the cause at bar is one of those rare instances which deprives the court of jurisdiction.

The judgment of the trial court is vacated, and the cause is dismissed.

RALE 'H BROWIN ASSOCIATE JUSTICE June 26, l980 THE STATE OF TEXAS X COUNTY OF EASTLAND X I, OLETA MOSELEY, CLERK of the Court of Civil Appeals, Eleventh Supreme Judicial District of Texas, do hereby certify that the above and foregoing opinion is a true and correct copy as entered in the above cause, as the same appears.now of record in my said office.

GIVEN under my hand and seal of office this the 20th day of August , 19 80 .

3 A OLETA MOSELEY, CLERK : \‘\\ \ b, $ ”\x o \ v a /; /V\;T‘ ,: x x a J ~ . / BY: M b /¢‘\\\ ‘ l \/ \x f flfr "J ’ if; V00” m. ’5'" ‘//f W2? .H. T. Vondy, I_ From the 38th District Court of Uvalde County.

Vs. No. 5467 1 June 26, l980 Commissioners Court of Uvalde County, Texas at al, l_ Opinion by Brown, A J.

This cause came on to be heard on the record and the same being inspected, it is the opinion of the Court that there was error in the judgment. It is therefore order- ed, adJudged and decreed that the Judgment of the trial court be, and the same is hereby, vacated and the cause dismissed, in accordance with this Court's opinion.

It is further ordered that the costs incurred by reason of this appeal be, and the same are hereby, taxed against appellant, H. T. Vondy, principal, and Merchants

Mutual Bondi any, surety on his appeal bond, for which let execution issue, and that this decision be certified below for observance. {gfiflugigg TN$UPREWE©©URT (fir? ‘4??pr :«zkfi QU8253QXL H. T. Vondy, i July l7, l980 GARQQN Ea JNEKE’ON, @t ERIK Vs No. 5467 I H Breztfiieee;fieesixfircppoourr Commissioners Court of Uvalde I .

County, Texas et al, l This day came on to be heard Appellant s motion for rehearing and the same, having been duly considered, is hereby overruled. ———_—————————-—______ 5467 THE STATE OF TEXAS 1 COUNTY OF EASTLAND T I, OLETA MOSELEY, CLERK of the Court of Civ1l Appeals, Eleventh Supreme Judicial District of Texas, do hereby certify that the above and foregoing is a true and correct copy of all orders and judgments entered in the above cause, as the same appear now of record in my said office I further certify that the $25.00 deposit for costs in the Court of Civil Appeals was aid by appellants IN THE SAN ANTONIO COURT OF CIVIL APP ALS. -en-the ------ --day-of ---------------- -:-i€r- . I also certify that the bill of costs in the Transcript shows that the Transcript is UNPAID and the Statement of Facts NONE , GIVEN under my hand and seal of office this the let day of .August , 19 80 .

B??E as x //7 l ::/ OLETA MOSELEY, CLERK 4/’ ; No .5. 4. .67 H. T. VONDY VS‘ COMMISSIONERS COURT OF UVALDE COUNTY, TEXAS ET AL TRANSCRIPT OF PROCEEDINGS In Court of Civil Appeals Eleventh District AUSTIN MC CLOUD CHIEF JUSTICE RALEIGH BROWN ASSOCIATE JUSTICE BOB DICKENSON ASSOCIATE JUSTICE 972? (flourt nf Glinil Appeals ZEIwmth Supreme Zjuhicial Email-int Mr. Garson R. Jackson, CTerk Supreme Court of Texas CapitoT Station Austin, Texas 78711 Dear Sir: PO BOX 271 EASTLAND. TEXAS 76448 August 22, 1980 Re: H. T. Vondy v. No. 5467 OLETA MOSELEY CLERK SHERRY WILLIAMSON DEPUTY CLERK TELEPHONE an 629 2638 Commissioners Court of UvaTde County, Texas et a1 EncTosed herewith is appTication for writ of error (12 copies) together with check or $10 filing fee from Mr. Harry A. Nass, Jr. and the following fiTed pap s: TTees

0m EncTs.

XCI Mr. Harry A. Nass, Jr. Mr. James M. Parker Mr. David R. White, Jr. é¢yr§:script peTTant's brief~ (4 copies) e brief: (4 copies) ‘ Tant's motion for rehearing fied copy of opinion of CCA fied copy of orders and judgment of CCA Yours truly, (9L2; OTeta MoseTey, CTerk