Maria De Jesus Garza, Guillermo Torres, and Joe E. Vega, in Their Individual Capacities v. Juan Jose "JJ" Zamora, Sr. and Martin C. Cantu

ACCEPTED
13-15-00218-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/3/2015 4:10:40 PM
CECILE FOY GSANGER
CLERK
NO. 13-15-00218-CV
FILED IN
IN THE COURT OF APPEALS 13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH DISTRICT OF7/6/2015
TEXAS 8:00:00 AM
AT CORPUS CHRISTI - EDINBURGCECILE FOY GSANGER
Clerk
CITY OF PORT ISABEL, TEXAS, MARIA DE JESUS GARZA,
GUILLERMO TORRES AND JOE E. VEGA
Appellants,
VS.
JUAN JOSE “JJ” ZAMORA, SR., AND MARTIN C. CANTU
Appellees.
From Cause Number 2015-DCL-02342
th
In the 444 Judicial District Court of Cameron County, Texas
APPELLANT CITY OF PORT ISABEL’S BRIEF
Robert L. Collins
Texas Bar No. 04618100
Audrey Guthrie
Texas Bar No. 24083116
P.O. Box 7726
Houston, Texas 77270-7726
(713) 467-8884
(713) 467-8883 Facsimile
houstonlaw2@aol.com
ATTORNEYS FOR CITY OF
PORT ISABEL
i
IDENTITY OF PARTIES AND COUNSEL
Appellants Counsel for Appellants
City of Port Isabel Robert L. Collins
Texas Bar No. 04618100
Audrey Guthrie
Texas Bar No. 24083116
P.O. Box 7726
Houston, Texas 77270-7726
(713) 467-8884
(713) 467-8883 Facsimile
houstonlaw2@aol.com
Maria de Jesus Garza Michael R. Cowen
Joe Vega Texas Bar No. 00795306
62 E. Price Road
Brownsville, TX 78521
(956) 541-4981
(956) 504-3674 Facsimile
michael@cowenlaw.com
Guillermo Torres Frank E. Perez
Texas Bar No. 15776540
300 Mexico Boulevard
Brownsville, TX 78520
(956) 504-5403
(956) 504-5991 Facsimile
fperez@feperezandassociates.com
Appellees Counsel for Appellees
Juan Jose “JJ” Zamora Gilbert Hinojosa
Martin C. Cantu 622 East St. Charles St.
Brownsville, Texas 78520
956-544-4218
Fax: 956-544-1335
ghinojosa@ghinojosalaw.net
ii
TABLE OF CONTENTS
Identity of Parties and Counsel ............................................................................... ii
Index of Authorities ................................................................................................ v
Statement of the Case............................................................................................ vii
Statement of Oral Argument ................................................................................. vii
Issue Presented: ..................................................................................................... vii
Whether this Court should reverse the Order of April 24, 2015
denying Appellants’ Plea to the Jurisdiction and remand the case to
the trial court to proceed on the limited issue of the constitutionality
of the City Charter provision prohibiting City Commissioners
(Appellees) from personally profiting from City contracts or business
arrangements with the City.
Statement of Facts ................................................................................................... 1
Summary of the Argument...................................................................................... 2
Argument and Authorities....................................................................................... 3
A. There is no subject matter jurisdiction for all but one of
Appellees’ claims against the City of Port Isabel. ......................... 3
B. Appellees have no standing to bring suit against the City of
Port Isabel because, with a sole exception as to
constitutionality of the City Charter, their claims are based
on a governmental function with no applicable waiver of
municipal sovereign immunity. ....................................................... 3
Conclusion and Prayer ............................................................................................ 7
Certificate of Service .............................................................................................. 9
Certificate of Compliance ..................................................................................... 10
iii
Certification .......................................................................................................... 11
iv
INDEX OF AUTHORITIES
CASES PAGE(S)
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) ................................. 3
City of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002) ........................................ 4
City of Cockrell Hill v. Johnson, 48 S.W.3d 887 (Tex. App. Fort Worth
2001) ................................................................................................................... 6, 7
City of LaPorte v Barfield, 898 S.W.2d 288 (Tex. 1995) ....................................... 6
City of San Antonio v. Polanco & Co., L.L.C., 2007 Tex. App. LEXIS 8634
(Tex. App. San Antonio Oct. 31, 2007) ................................................................. 5
Gates v Dallas, 704 S.W.2d 737, 738-739 (Tex. 1986) ......................................... 5
Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)................................ 2, 4
State v. City of Galveston, 175 S.W.3d 1, 5 (Tex. App. Houston 1st Dist.
2004) ....................................................................................................................... 5
Temple v. City of Houston, 189 S.W.3d 816 (Tex. App. Houston 1st Dist.
2006) ....................................................................................................................... 6
Tex. Ass’n of Sch. Bds. Risk Mgmt. Fund v. Benavides Indep. Sch. Dist.,
221 S.W.3d 732, 737 (Tex. App. San Antonio 2007) ............................................ 5
Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) ........... 4
Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)......................... 2, 4
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004) ..... 4
Tooke v. City of Mexia, 197 S.W. 325 (Tex. 2006) ................................................ 5
v
STATUTES & CONSTITUTIONS PAGE(S)
City of Port Isabel City Charter, Section 2.02 .................................................... 2, 6
Tex. Civ. Prac. & Rem. Code § 101.021-0215 ............................................... 4, 6, 7
Tex. Civ. Prac. & Rem. Code § 37.006 .............................................................. 3, 4
Tex. R. App. P. 6.3.......................................................................................................9
Tex. R. App. P. 9.4(e) ............................................................................................... 10
Tex. R. App. P. 9.4(i) ................................................................................................ 10
Tex. R. App. P. 9.4(i)(1) ........................................................................................... 10
Tex. R. App. P. 9.5 (b)(d) and (e) ................................................................................9
vi
STATEMENT OF THE CASE
Nature of underlying proceeding Appellees, Juan Zamora and Martin Cantu
were removed from their offices as City
Commissioners for violations of the Port
Isabel City Charter. Appellees filed suit
against Relators, the City of Port Isabel,
two City Commissioners, and the Mayor in
their personal and official capacities
claiming that Appellees should not have
been removed from office and seeking an
injunction to undue the vote and reinstate
them into their offices.
Action complained of: On April 24, 2015, a hearing was held on
Appellants Plea to Jurisdiction and
Appellee’s Temporary Injunction. The
Temporary Injunction was erroneously
granted on April 24, 2015.
STATEMENT REGARDING ORAL ARGUMENT
There is sufficient applicable and well-established law to decide this issue
without oral arguments. However, if Appellees are granted oral arguments, then
Appellants request an equal opportunity to be heard and present argument.
ISSUES PRESENTED
Whether this Court should reverse the Order of April 24, 2015 denying
Appellants’ Plea to the Jurisdiction and remand the case to the trial court to
proceed on the limited issue of the constitutionality of the City Charter provision at
issue.
vii
STATEMENT OF FACTS
During a properly noticed public meeting, and pursuant to a provision of the
Port Isabel City Charter, a City Commission vote was held and by majority vote
duly recorded, Appellees were removed from their offices as City Commissioners
due to violations of the City Charter which prohibited certain types of business
relationships between City Commissioners and the City. Port Isabel City Charter
provides in Section 2.02 for disqualification of office holders and candidates for
City elected office for, among other things, doing business with the City.
Appellees filed suit against Appellants in their individual and official capacity for
their actions in voting to remove Appellees from their positions on the City
Commission for violation of Section 2.02 of the City Charter by each Appellee.
Appellees contend by their petition that they should not have been removed or, in
the alternative, that Appellant Torres should also be removed. Appellees sought
and obtained a temporary injunction requiring reinstatement of Appellees as
voting members of the Port Isabel City Commission. Appellant City timely filed a
properly-pled plea to the jurisdiction along with their answer subject thereto.
CR23. That plea to the jurisdiction is based on municipal sovereign immunity
which bars all claims brought by Appellants, except for a challenge to the
constitutionality of the City Charter provision at issue, which was provided in a
limited waiver under the Texas Torts Claims Act. CR23-25. Appellant conceded
1
this point at the Temporary Injunction hearing and requested that all other claims
be dismissed as there is no jurisdiction for any other claim against the City.
Transcript of Hearing on Temporary Injunction and Plea to Jurisdiction, p. 7, ln.
13-20; RR:1 Appellant’s Plea to the Jurisdiction was denied in whole. CR101.
Appellants then filed this Appeal of the denial of the City’s timely filed and
properly pled Plea to the Jurisdiction. CR102.
SUMMARY OF THE ARGUMENT
Appellees made claims against Appellant City of Port Isabel regarding the
City Commission’s properly-noticed vote to remove Appellees from their
positions on the City Commission due to their violation of the City Charter,
specifically Section 2.02, which prohibits Commissioners from conducting
business with the City. The Trial Court does not have subject matter jurisdiction
over Appellees’ claim due to Municipal Sovereign Immunity provided pursuant to
Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (Sovereign
Immunity beats subject matter jurisdiction unless suit is expressly consented to)
and Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (Sovereign
Immunity extends to municipalities)
Appellees also made claims against Appellant City of Port Isabel seeking a
declaration that Section 2.02 of the City Charter is unconstitutional. The trial court
has subject matter jurisdiction over this claim due to an express waiver for
2
declaratory challenges to the constitutionality of a statute or ordinance. Tex. Civ.
Prac. & Rem. Code Sec. 37.006(b).
Appellees pray this Court will reverse the part of the Trial Court’s order
denying the Plea to Jurisdiction and remand the case to the Trial Court to proceed
on the constitutionality issue only.
ARGUMENT AND AUTHORITIES
A. There is no subject matter jurisdiction for all but one of the
Appellees’ claims against the City of Port Isabel
Against City of Port ¶12(b) of The removal of commissioners is a
Isabel for Appellees’ Appellees’ governmental function to which
removal from office Amended governmental immunity applies.
Petition There is no waiver of immunity for
governmental functions.1
Against City of Port ¶12(c) of Survives under the waiver of
Isabel that City Charter Appellees’ immunity in Tex. Civ. Prac. & Rem.
§ 2.02 is Amended Code § 37.006.
unconstitutional Petition
B. The court does not have subject matter jurisdiction, because their
cause is based in a governmental function with no applicable waiver of
municipal sovereign immunity.
A plea to the jurisdiction is a dilatory plea by which a party challenges a
court's authority to determine the subject matter of the action. Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The party suing the governmental
1
Id.
3
entity bears the burden of affirmatively showing that the trial court has jurisdiction
to hear the cause. Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587
(Tex. 2001).
Sovereign immunity from suit defeats a trial court's subject matter
jurisdiction unless the State expressly consents to a suit. Tex. Dep't of Transp. v.
Jones, 8 S.W.3d 636, 638 (Tex. 1999). Governmental immunity operates like
sovereign immunity and affords a similar protection to subdivisions of the State,
including counties and cities. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.
2004). The Texas Tort Claims Act (“TTCA”) provides a limited waiver of
immunity, allowing suits to be brought against governmental units in certain,
narrowly-defined circumstances. Miller, 51 S.W.3d at 587; Tex. Civ. Prac. & Rem.
Code 101.021. The TTCA expressly waives sovereign immunity in three areas:
“use of publicly owned automobiles, premises defects, and injuries arising out of
conditions or use of property.” Tex. Dep't of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 225 (Tex. 2004) (quoting City of Cameron v. Brown, 80 S.W.3d 549,
554 (Tex. 2002)); Tex. Civ. Prac. & Rem. Code 101.021. The TTCA also provides
a waiver or immunity for declaratory challenges to the constitutionality of a statute
or ordinance. Tex. Civ. Prac. & Rem. Code Sec. 37.006(b). While Appellees had
failed to comply with the specific requirements of Sec. 37.006 when their lawsuit
was filed and when the City filed its Plea to the Jurisdiction, Appellees claimed to
4
have cured that defect by the time of the Hearing, and as a result, the City
conceded jurisdiction on this single point – the constitutionality of the City Charter
provision at issue. For all other claims of Appellees, the City has always and does
hereby assert governmental immunity and that there is no jurisdiction for any other
claim that Appellee’s assert.
Sovereign Immunity extends to municipalities. State v. City of Galveston,
175 S.W.3d 1, 5 (Tex. App. Houston 1st Dist. 2004). Municipalities have immunity
from suit by private persons and other governmental agencies when performing
governmental functions. City of Galveston, 175 S.W.3d at 5; Tex. Ass’n of Sch.
Bds. Risk Mgmt. Fund v. Benavides Indep. Sch. Dist., 221 S.W.3d 732, 737 (Tex.
App. San Antonio 2007).
Governmental functions, for which Municipalities do have immunity from
suit, “are those in the performance of purely governmental matters solely for the
public benefit.” City of San Antonio v. Polanco & Co., L.L.C., 2007 Tex. App.
LEXIS 8634 (Tex. App. San Antonio Oct. 31, 2007) quoting Tooke v. City of
Mexia, 197 S.W. 325 (Tex. 2006). The governmental functions of a municipal
corporation have been defined as those acts which are public in nature and
performed by the municipality “as the agent of the State in furtherance of general
law for the interest of the public at large.” Gates v Dallas, 704 S.W.2d 737, 738-
739 (Tex. 1986). Governmental functions include actions such as tax collection,
5
building codes and inspections, zoning, community development activities, and the
hiring and firing of city employees. Tex. Civ. Prac. & Rem. Code 101.0215;
Temple v. City of Houston, 189 S.W.3d 816, 819 (Tex. App. Houston 1 st Dist.
2006) (notes hiring and firing of city employees is a governmental function); City
of LaPorte v Barfield, 898 S.W.2d 288, 291 (Tex. 1995) (hiring and firing of city
employees is a governmental function); City of Cockrell Hill v. Johnson, 48
S.W.3d 887 (Tex. App. Fort Worth 2001) (hiring and firing of city employees is a
governmental function).
Appellees’ cause of action is based on the enforcement of a provision of the
Port Isabel City Charter by a vote of the Port Isabel City Commission, which is an
integral part of the city government. The City Charter provides:
The Mayor, Commissioners, and other officers and employees… and
shall not be interested in the profits or emoluments or any contract,
job, work or service for the City of Port Isabel, or interested in the sale
or lease to or by the City of any property, real or personal… Any
officer or employee of the City who shall cease to possess any of the
qualifications herein required shall forthwith forfeit his or her office..
Port Isabel City Charter Section 2.02
By entertaining a duly posted agenda item at a properly and duly-noticed
public meeting and carrying out the City Charter mandate by considering and
voting on the item the Port Isabel City Commission was not performing a role that
could be performed by a private citizen. The City Commission was not performing
an act that was solely beneficial to the city government and employees of the city
6
government. The City Commission was acting as a part of the City of Port Isabel
government, on behalf of the welfare of the general public in performing duties
related to the enforcement of city law, the City Charter, with respect to public
officials of the City. See City of Cockrell, Supra, where the court found that the
hiring and firing of city employees was a governmental function that provides the
municipality with immunity from suit. The actions of the Port Isabel City
Commission in voting to remove one or more commissioners pursuant to specific
provisions and procedures set forth in the duly-adopted Port Isabel City Charter is
a governmental function and as such, the City is immune from suit under the Texas
Tort Claims Act. Tex. Civ. Prac. & Rem. Code 101.021-0215.
CONCLUSION AND PRAYER
Appellant City’s Plea to the Jurisdiction was properly pled and founded in
well-established law regarding sovereign immunity. Appellees sue for the
government function of hiring and firing city employees. There is no case or
controversy to create subject matter jurisdiction over Appellant City, and likewise,
no bar or exception to municipal sovereign immunity to allow suit against the City.
The only cause of action that should be remanded is the Appellee’s challenge to
the constitutionality of the specific Charter provision.
Therefore, Appellant City of Port Isabel prays this court will reverse the
order denying Appellants’ Plea to Jurisdiction, and remand this cause with
7
instructions for the trial court to proceed on the limited claim of the
constitutionality of the Charter Provision, and to dismiss all other claims against
the City.
Respectfully submitted,
___________________
Robert L. Collins
Texas Bar No. 04618100
Audrey Guthrie
Texas Bar No. 24083116
P.O. Box 7726
Houston, Texas 77270-7726
(713) 467-8884
(713) 467-8883 Facsimile
houstonlaw2@aol.com
ATTORNEYS FOR CITY OF
PORT ISABEL
8
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that I have served this document on all other parties, on this 26th day of
June, 2015 and July 3, 2015:
Counsel for Appellees
Gilbert Hinojosa
622 East St. Charles St.
Brownsville, Texas 78520
Fax: 1-956-544-1335
ghinojosa@ghinojosalaw.net
Michael R. Cowen
THE COWEN LAW GROUP
62 E. Price Road
Brownsville, TX 78521
(956) 504-3674 Facsimile
michael@cowenlaw.com
Frank E. Perez
FRANK E. PEREZ & ASSOCIATES, PC
300 Mexico Boulevard
Brownsville, TX 78520
(956) 504-5991 Facsimile
fperez@feperezandassociates.com
Robert L. Collins
9
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App.
P. 9.4(e) because it has been prepared in a conventional typeface no smaller than
14-point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
1,884 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
____________________________
Robert L. Collins
10
NO. 13-15-00218-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
AT CORPUS CHRISTI - EDINBURG
CITY OF PORT ISABEL, TEXAS, MARIA DE JESUS GARZA,
GUILLERMO TORRES AND JOE E. VEGA
Appellants,
VS.
JUAN JOSE “JJ” ZAMORA, SR., AND MARTIN C. CANTU
Appellees.
From Cause Number 2015-DCL-02342
th
In the 444 Judicial District Court of Cameron County, Texas
APPENDIX
Tab A Order denying City of Port Isabel’s Plea to the Jurisdiction, signed
April 24, 2015
TAB A