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
13-15-00237-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/1/2015 9:29:56 AM
CECILE FOY GSANGER
CLERK
NO. 13-15-00237-CV
FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH DISTRICT OF7/1/2015
TEXAS 9:29:56 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
In the 444th Judicial District Court of Cameron County, Texas
APPELLANTS MARIA DE JESUS
GARZA AND JOE E. VEGA’S BRIEF
Michael Cowen
Texas Bar No. 00795306
The Cowen Law Group
62 E. Price Road
Brownsville, Texas 78521
Telephone (956) 541-4981
Facsimile (956) 504-3674
E-Mail: Michael@CowenLaw.com
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 Gilberto Hinojosa
Martin C. Cantu 622 East St. Charles St.
Brownsville, Texas 78520
956-544-4218
Fax: 956-544-1335
ghinojosa@ghinojosalaw.net
2
TABLE OF CONTENTS
Identity of Parties and Counsel 2
Index of Authorities 4
Statement of the Case 6
Statement Regarding Oral Argument 6
Issues Presented 7
Statement of Facts 8
Summary of Argument 11
Arguments and Authorities 12
I. The Trial Court Had No Legal Authority to Issue a 12
Temporary Injunction Returning Cantu and Zamora to Office
During the Pendency of this Case
II. The Trial Court Erred In Basing the Temporary Injunction 13
on Grounds Not Pled by Appellees
III. The Trial Court Erred in Finding that Cantu and Zamora 15
Were Removed in Violation of the City Charter
A. The City Charter Provides Two Separate Ways that a 16
Commissioner Can Be Removed from Office
B. The City Commission Had the Authority to Remove 18
Cantu and Zamora at the April 13, 2015 Meeting
IV. The Trial Court Erred in Finding the Cantu and Zamora 20
Were Deprived of Due Process
V. Section 2.02 of the City Charter is Constitutional 21
VI. The City Commission Can Remove a Commissioner 22
Without Resorting to Quo Warranto
3
VII. The Temporary Injunction is Overly Broad because It 23
Permits Appellees to Vote on Matters Regarding this Lawsuit
Conclusion and Prayer 24
Certificate of Service 25
Certificate of Compliance 24
Appendix 26
4
INDEX OF AUTHORITIES
Cases
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) 23, 24
Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 525 (Tex. 1981) 17
City of Alamo v. Garcia, 960 S.W.2d 221 (Tex. App.–Corpus 11, 12, 13,
Christi 1997) 15, 21, 23
City of Laredo v. Villarreal, 81 S.W.3d 865 (Tex. App.–San 15
Antonio 2002)
EMS USA, Inc. v. Shary, 309 S.W.3d 653 (Tex. App.–Houston 13
[14th Dist.] 2010, no pet.)
Jones v. City of Arcola, 1999 Westlaw 546965 (Tex. App.–Austin 15
1999)
Hamman v. Hayes, 391 S.W.2d 73 (Tex. App.–Beaumont 1965, 23
writ refused)
Huntress v. McGrath, 946 S.W.2d 480 (Tex. App.–Ft. Worth 1997, 15
orig. proceeding)
Riggins v. City of Waco, 93 S.W. 426 (Tex. 1906) 15, 22
Statute and Charter Provision
Tex. Local Gov’t § 171.007 22
Port Isabel City Charter, Section 2.02 passim
Attorney General Opinion
Tex. Atty. Gen. Opin. GA-0068 (2003) 22
5
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.
6
ISSUES PRESENTED
1. Given this Court’s prior holding a city councilman removed pursuant to a city
charter provision does not have the right to a temporary injunction while he
pursues judicial review of the removal, did the trial court err in granting such
an injunction?
2. Can a trial court grant a temporary injunction based on grounds not plead by
movants as a basis for injunctive relief?
3. Did the City of Port Isabel properly remove appellees from their positions as
city commissioners when appellees admittedly violated the city charter by
doing business with the city while serving as commissioners?
4. Did appellees receive due process when they had notice, an opportunity to
speak and be heard, and actually attended and participated in the meeting in
which they were removed?
5. Can a home rule city require a higher ethical standard than the minimum
required by state law?
6. Can a home rule city enforce its own charter without having to depend on a
district attorney or the attorney general to file a quo warranto action?
7. Can plaintiffs use a temporary injunction to preclude appellate review or an
effective defense by using the injunction to appoint their attorney as the
defendant’s city attorney, to replace defendant’s attorney with an attorney
chosen by plaintiffs and their attorney, and to vote to abandon appeals and to
prevent the city from defending the lawsuit plaintiffs filed against it?
8. How can Appellees claim that the City Commission acted arbitrarily and
illegally in removing them under Section 2.02 when they themselves attempted
to remove another commissioner under Section 2.02 at the same meeting?
7
STATEMENT OF FACTS
Section 2.02 of the Port Isabel City Charter prohibits City Commissioner’s
from doing business with the City. RR 136-137, 147. Section 2.02 further provides
that any City Commissioner who does business with the city vacates his or her
position. Id. Appellees Martin Cantu and Juan Jose Zamora have admitted doing
business with the City of Port Isabel while serving as City Commissioners. RR 84,
86-87, 108. The issue in this appeal is whether the City of Port Isabel can enforce the
anti-corruption provisions of its own charter by removing City Commissioners who
do business with the city.
Martin Cantu and Juan Jose Zamora were Port Isabel City Commissioners.
While serving as City Commissioners, they both did business with the city through
their respective auto repair businesses. RR 84, 86-87, 108. Both Cantu and Zamora
testified under oath that they did business with the city while serving as
commissioners, and there was no factual dispute as to whether they violated Section
2.02 of the City Charter.
A Port Isabel City Commission meeting was scheduled for April 13, 2015. RR
126-129, 175-178. Prior to that meeting, Cantu placed an item on the agenda calling
for a vote to remove Torres from office for allegedly violating Section 2.02 of the
City Charter. RR 85, 127. Torres subsequently placed an item on the agenda for the
8
same meeting to remove Cantu and Zamora for violating the same Section of the
Charter by doing business with the City. RR 177.
Both Cantu and Zamora had notice of the April 13, 2015 meeting, and of the
fact that an item was placed on the agenda calling for their removal. RR 77-78, 112,
126-129, 175-178. The agenda stated that proposed removal was based on Cantu and
Zamora’s violation of Section 2.02’s prohibition of doing business with the city. RR
177.
Cantu and Zamora both attended the meeting, and had the opportunity to speak
and be heard. RR 78, 112. At the meeting, Zamora moved to remove Torres from
office pursuant to Section 2.02. RR 112. The commission voted 3-2 against
Zamora’s motion. The commission then determined that Cantu and Zamora had
violated Section 2.02 by doing business with the city, and voted to remove them from
office. CR 93, ¶ 12.
Cantu and Zamora filed a lawsuit seeking injunctive and declaratory relief to
undo their removal from office. On April 24, 2015, the trial court held an evidentiary
hearing, at which Cantu and Zamora both testified that they had done business with
the city while serving as commissioners. RR 84, 86-87, 108. Despite this confession,
the trial court granted a temporary injunction ordering that they be returned to the
City Commission. CR 103-105.
9
Cantu and Zamora, together with a newly-elected commissioner who replaced
Torres, have since used the temporary injunction to try to preclude any appellate
review in this case. Despite being parties to this lawsuit, they have voted on matters
related to this lawsuit, including hiring their attorney as the new city attorney, firing
the former city attorney, and voting to stop any appeals of the lawsuit they filed.
Based on appellees’ use of the injunction, the city commission is now advised on
matters related to this lawsuit by the same attorney who represented Cantu and
Zamora in the trial court.
10
SUMMARY OF ARGUMENT
Port Isabel’s City Charter prohibits city commissioners from doing business
with the City, and provides that commissioners who violate this provision forfeit their
office. Appellees admittedly did business with the city while serving as
commissioners, and were properly removed from their office pursuant to the City
Charter. The trial court erred in granting a temporary injunction returning them to
office.
Both this Court and the Texas Supreme Court have held that a city commission
has the authority to remove a commissioner. Judicial review of such removals is
limited to two issues: (1) whether the commission acted arbitrarily; and (2) whether
appellees received due process. The undisputed evidence shows that the city
commission did not act arbitrarily in removing appellees because appellees admittedly
violated the City Charter’s prohibition against doing business with the city.
Appellees received due process because they had notice and an opportunity to be
heard prior to the vote on their removal
Moreover, this Court has previously held that a city commissioner judicially
challenging his removal has no right a temporary injunction maintaining him in
office. City of Alamo v. Garcia, 960 S.W.2d 221, 223-24 (Tex. App.–Corpus Christi
1997).
11
Finally, this Court should not permit appellees to usurp the Court’s appellate
jurisdiction by allowing appellees to use the temporary injunction to take over
appellant’s defense and abandon this appeal. Temporary injunctions should only be
used to preserve the status quo, and not to create final, unappealable orders.
Appellees are abusing the process by using the temporary injunction to hire their
attorney as the new city attorney, and to vote to force appellants to discontinue this
appeal.
ARGUMENT
I. The Trial Court Had No Legal Authority to Issue a Temporary Injunction
Returning Cantu and Zamora to Office During the Pendency of this Case
(Issue No. 1)
The trial court did not have the legal authority to issue a temporary injunction
ordering that Cantu and Zamora return to their offices during the pendency of this
lawsuit. The City Commission, pursuant to the City Charter, has the power to remove
commissioners, and Texas law only grants the courts the power to review for abuse
of discretion and lack of due process. Moreover, “the right to a review by a judicial
body does not entitle appellees to a temporary injunction, the effect of which is the
perpetuate them in office pending that review.” City of Alamo v. Garcia, 960 S.W.2d
12
221, 223-24 (Tex. App.–Corpus Christi 1997). An injunction is only appropriate
when the city charter itself is unconstitutional so that it does not constitute “lawful
authority” to remove someone from office Id. at 226-27.
In the temporary injunction order, the trial court did not find that the city
charter itself was unconstitutional, or that the charter did not provide the city
commission with the lawful authority to remove a commissioner. CR 103-105.
Rather, the trial court merely found that the charter was not followed, and that there
was a lack of due process.1 CR 104. Because the trial court did not find that the
charter was unconstitutional or otherwise did not constitute a lawful authority, it had
no power to issue a temporary injunction. City of Alamo v. Garcia, 960 S.W.2d at
223-224.
II. The Trial Court Erred In Basing the Temporary Injunction on Grounds
Not Pled by Appellees
(Issue No. 2)
To obtain a temporary injunction, the applicant must plead a cause of action
against the defendant and show both a probable right to recover on that cause of
action. EMS USA, Inc. v. Shary, 309 S.W.3d 653, 657 (Tex. App.—Houston [14th
1
Appellants’ disagree with those findings, and have challenged them in this Brief.
13
Dist.] 2010, no pet.. To show a probable right of recovery, the applicant must plead
and present evidence to sustain the pleaded cause of action. Id.
In their Third Amended Petition, Appellees only pled one basis for having a
probable right to recovery in support of their request for a temporary injunction:
20. It is probable that Plaintiff will recover from Defendants after a trial
on the merits because the law is clear that only a successful quo
warranto proceeding brought by the appropriate authority, which does
not include Defendants, can remove Plaintiffs from their respective
offices. See Tex. Civ. Prac. Rem. Code Section 66 et. seq; Hamman v
Hayes, 391 S.W.2d 73, 74 (Tex. App. Beaumont 1965, writ refused).
CR 98. However, the trial court, in granting the temporary injunction, did not find
that appellees could only be removed by a quo warranto proceeding. CR 103-104.
Rather, the trial court found a probable right to recover based on two grounds not
pled as bases for injunctive relief: lack of compliance with the charter and lack of due
process. CR 104. Because appellees failed to prove the cause of action for injunctive
relief they actually pled,2 the temporary injunction should be dissolved.
2
Appellees did seek declaratory (but not injunctive) relief based on alleged non-compliance
with the City Charter. RR 96. Appellees did not plead a lack of due process. RR 90-100.
14
III. The Trial Court Erred in Finding that Cantu and Zamora Were Removed
in Violation of the City Charter
(Issue No. 3)
The Texas legislature vested the power to remove a mayor or commissioner in
the city council, and no power of review is given to the courts. Jones v. City of
Arcola, 1999 Westlaw 546965 (Tex. App.—Austin 1999); see Huntress v. McGrath,
946 S.W.2d 480, 485 (Tex. App.—Ft Worth 1997, orig. proceeding); Riggins v. City
of Waco, 93 S.W. 426, 427 (Tex. 1906). As this Court stated in City of Alamo v.
Garcia, “Texas courts, in recognition of the autonomy and separate powers of
municipal legislatures, will not interfere to protect a person from removal from office
by a man or body of men to whom to power to remove is given by law.” 960 S.W.2d
at 223. Judicial review is limited to whether the city commission committed an
abuse of discretion or violated due process. Id. “ The most that could be asserted in
favor of the power of the courts is that they may inquire whether or not charges were
duly preferred, a hearing had, and evidence adduced tending to sustain them.”
Riggins, 93 S.W. at 32-33.
A city’s construction of it’s own charter or ordinance is entitled to serious
consideration as long as it is reasonable. City of Laredo v. Villarreal, 81 S.W.3d 865
(Tex. App.—San Antonio 2002). Moreover, because the trial court’s review of the
15
removal was limited to whether the city commission acted arbitrarily, the city
commission’s interpretation of the City’s charter should be accepted unless there was
no basis for that interpretation.
Appellees plead two reasons why they claimed the City Charter was not
followed: (1) they argued that the City Commission did not have the power to remove
a commissioner unless that commissioner was first convicted of a crime; (2) they
argued that the City Commission could not remove a commissioner at a “special
meeting.” Both of these arguments fail.
A. The City Charter Provides Two Separate Ways that a
Commissioner Can Be Removed from Office
The Port Isabel City Charter authorized the City Commission to remove Cantu
and Zamora at a commission meeting.
Section 2.02 of the City Charter provides, “The Mayor, Commissioners, and
other officers and employees . . . shall not be interested in the profits or emoluments
or any contract, job, work, or service for the City of Port Isabel. . . .” RR 136.
Section 2.02 then provides two mechanisms by which an elected official who violated
the charter can be removed from office. First, the City Commission can vote to
remove that person for violating the charter. Specifically, Section 2.02 provides, “If
16
the Mayor or any City Commissioner fails to maintain, the foregoing qualifications
. . . the City Commission shall at its next regularly scheduled meeting declare a
vacancy to exist and shall fill said vacancy as set forth in Section 2.03 of this
Charter.” RR 137.
A second method by which a person can be removed is if there is a criminal
conviction. Section 2.02 provides, “Any violation, of this Section shall be a
misdemeanor, and on conviction for such violation such office or employment shall
be forfeited.” RR 137.
Appellees argue that the second method is the exclusive method of removing
a commissioner. However, this interpretation would render the provision requiring
the City Commission to declare a vacancy at the next regularly scheduled meeting and
fill the vacancy meaningless. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d
535, 540 (Tex.1981) (“It is a rule of statutory construction that every word of a statute
must be presumed to have been used for a purpose”). Moreover, the provision
providing that a mayor or city commissioner may be removed at a meeting is limited
to the mayor and the commissioners. In contrast, the criminal conviction provision
applied to all officers and employees as well. Therefore, the Port Isabel City
Commission did not act in an arbitrary manner when it interpreted Section 2.02 as
permitting a commissioner to be removed at a city council meeting.
17
Further proof that the City Commission’s interpretation of the charter as
authorizing the removal was not “arbitrary” is the fact that Cantu and Zamora invoked
the same procedure at the same meeting in an attempt to remove Torres. RR 85,
104-105, 111-112. Appellees interpreted the charter in the same way as appellants
until they ended up on the losing side of the removal issue. Because a reasonable city
commission could have interpreted Section 2.02 of the charter as giving the
commission the power to remove commissioners for violating Section 2.02 at a
regularly-scheduled “special” meeting, the removal was neither arbitrary or
capricious, and should be respected by the courts.
There is also no question that the evidence supports the City Council’s findings
that Cantu and Zamora violated the charter by doing business with the city while
serving as commissioners. Cantu and Zamora both testified that they did business
with city while commissioners. RR 84, 86-87, 108.
B. The City Commission Had the Authority to Remove Cantu and
Zamora at the April 13, 2015 Meeting
The City Commission did not act arbitrarily in treating the April13, 2015
meeting as a “regularly scheduled” meeting at which it could remove Cantu and
Zamora under Section 2.02. The Port Isabel City Commission normally meets on
18
Tuesdays, but met on April 13, 2015 (the Monday before the previously-scheduled
Tuesday meeting) to accommodate all of the commissioners’ schedules. The meeting
was not called specifically to call for the removal of Cantu and Zamora. In fact, it
was already scheduled for Monday, April 13, 2015 before the agenda item to remove
Cantu and Zamora was added. See RR 126-128 (draft agenda, faxed at 4:49 on April
10, showing that the meeting was scheduled for April 13; the item to remove Cantu
and Zamora was not on the agenda); RR 175-178 (agenda for April 13, 2015 meeting,
including item to remove Cantu and Zamora, posted at 6:20 p.m. on April 10).
Section 2.02 does not state that a commissioner can only be removed at a
“Regular Meeting” or that a commissioner cannot be removed at a “Special
Meetings.” A reasonable interpretation of the term “regularly scheduled meeting” is
that the meeting has to be scheduled in the normal order of business, and that the
commission cannot call a new meeting just for the purpose of removing
commissioners. Given that Cantu and Zamora placed on item to remove Torres
pursuant to Section 2.02 at the April 13 meeting, and that they did not object to the
consideration oft he removal items at the April 13 meeting on the ground that it was
a “Special Meeting,” it is evident that Cantu and Zamora interpreted the April 13,
2015 meeting as a “regularly scheduled” meeting at which a commissioner could be
removed. It is only after they failed to remove Torres, and they themselves were
19
removed that they complained about the process they themselves first invoked.
Moreover, Cantu and Zamora cannot show any harm from the fact that the
meeting was held on April 13 rather than April 14. They both had notice of the
meeting, and of the agenda item regarding their proposed removal. They both had an
opportunity to speak and be heard. They both attended and spoke. And most
importantly, they were both admittedly guilty of violating the charter by doing
business with the city, and they would have been as guilty on Tuesday as they were
on Monday.
IV. The Trial Court Erred in Finding the Cantu and Zamora Were Deprived
of Due Process
(Issue No. 4)
The trial court’s second ground for finding a probable fight to recover was that
appellees due process rights under the Texas Constitution were allegedly violated.
This finding was erroneous for two reasons. First, appellees never pled that their due
process rights were violated. RR 90-100. Second, Cantu and Zamora received the
due process required by law because they had notice of the April 13 meeting and an
opportunity to be heard at that meeting.
“Due process at a minimum requires notice and an opportunity to be heard at
20
a meaningful time and in a meaningful manner.” City of Alamo v. Garcia, 960
S.W.2d at 225. In the City of Alamo case, this Court found that there was due process
when a city commissioner had the right to appear at a city commission meeting and
to be heard on the issue of his removal. Id. Cantu and Zamora had notice of the
hearing and an opportunity to be heard at the hearing. More over, they cannot claim
that they were prevented from presenting some evidence that would have changed the
outcome of whether they were found to have violated the City Charter. They both
admitted to doing business with the city while serving, which violates Section 2.02.
Therefore, as a matter of law appellees received due process, and the trial court erred
in finding otherwise.
V. Section 2.02 of the City Charter is Constitutional
(Issue No. 5)
Appellees pled, as a basis for declaratory judgment, that Section 2.02 of the
City Charter was unconstitutional. CR 96. The trial court did not find that Section
2.02 was unconstitutional, and appellees did not plead unconstitutionality as a basis
for injunctive relief. CR 97-99, 103-105. Therefore, any argument that Section 2.02
is unconstitutional should not serve as a basis for affirming the temporary injunction.
However, out of an abundance of caution, Appellants have set out the authority for
21
why it complies with the Texas Constitution.
Section 2.02 of the Port Isabel City Charter is constitutional. Appellees claim
that Section 2.02 is unconstitutional and preempted because it imposes a greater
restriction of an official’s ability to do business with the city than provided by state
law. However, home rule cities are permitted to have ethical requirements that
exceed those imposed by state law. Tex. Atty Gen. Opin GA-0068 (2003). Local
Government Code Section 171.007(b) provides that the conflict-of-interest provisions
of chapter 171 are “cumulative of municipal charter provisions and municipal
ordinances defining and prohibiting conflicts of interests.” Therefore, neither state
statutory nor constitutional law prohibits Port Isabel from prohibiting its
commissioners from doing business with the city.
VI. The City Commission Can Remove a Commissioner Without Resorting to
Quo Warranto
(Issue No. 6)
The city commission has the power to remove a commissioner from office for
violating the charter. Quo warranto is not the sole method of removing a
commissioner. The Texas Supreme Court affirmed a city’s right to remove its own
elected officials over a century ago in Riggins v. City of Waco, 93 S.W. 426 (Tex.
22
1906). More recently, the Thirteenth Court of Appeals held that the city has that right
in City of Alamo v. Garcia, 960 S.W.2d 221 (Tex. App.—Corpus Christi 1997).
In contrast, none of the quo warranto cases cited by appellees involved a city
commission removing an elected official pursuant to a municipal charter. Rather,
every one of those cases related to a private citizen’s attempt to file a lawsuit to
remove a public official from office. E.g. Hamman v Hayes, 391 S.W.2d 73, 74
(Tex. App. Beaumont 1965, writ refused).
VII. The Temporary Injunction is Overly Broad because It Permits Appellees
to Vote on Matters Regarding this Lawsuit
(Issue No. 7)
Arguing in the alternative, in the event that the Court affirms the temporary
injunction, the Court should reform and narrow the scope of the injunction. As the
injunction now stands Appellees can vote on this lawsuit. They have voted to fire the
city attorney, to make the attorney representing them in this lawsuit into the new city
attorney, to have the attorney representing them in this lawsuit advise the commission
in executive session regarding matters pertaining to this lawsuit, to retain counsel
chosen by their attorney to represent the City in this lawsuit, and to abandon this
appeal. A temporary injunction is only supposed to preserve the status quo. Butnaru
23
v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). It should not be used as a means
to secure a final adjudication, or to prevent appellate review of the trial court’s orders.
Therefore, in the event that the Court affirms the granting of the temporary injunction,
Appellants ask that the Court also modify the injunction to prohibit Appellees from
voting on matters pertaining to this action or otherwise trying to prohibit the City
from appealing or defending itself in the lawsuit Appellees filed.
CONCLUSION AND PRAYER
Appellants Maria de Jesus Garza and Joe E. Vega respectfully pray that the
Court reverse the trial court’s granting of an injunction.
Respectfully submitted,
/s/ Michael Cowen
Texas Bar No. 00795306
The Cowen Law Group
62 E. Price Road
Brownsville, Texas 78521
Telephone (956) 541-4981
Facsimile (956) 504-3674
E-Mail: Michael@CowenLaw.com
24
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 24th day of June,
2015:
Gilbert Hinojosa
622 East St. Charles St.
Brownsville, Texas 78520
Fax: 1-956-544-1335
ghinojosa@ghinojosalaw.net
Robert L. Collins
P.O. Box 7726
Houston, Texas 77270-7726
(713) 467-8884
(713) 467-8883 Facsimile
houstonlaw2@aol.com
ATTORNEYS FOR CITY OF
PORT ISABEL
Frank E. Perez
FRANK E. PEREZ & ASSOCIATES, PC
300 Mexico Boulevard
Brownsville, TX 78520
(956) 504-5991 Facsimile
fperez@feperezandassociates.com
/s/ Michael Cowen
25
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
4,797 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
/s/ Michael Cowen
26
NO. 13-15-00237-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
In the 444th Judicial District Court of Cameron County, Texas
APPENDIX TO APPELLANTS MARIA
DE JESUS GARZA AND JOE E. VEGA’S BRIEF
Michael Cowen
Texas Bar No. 00795306
The Cowen Law Group
62 E. Price Road
Brownsville, Texas 78521
Telephone (956) 541-4981
Facsimile (956) 504-3674
E-Mail: Michael@CowenLaw.com
27
CONTENTS OF APPENDIX
1. Temporary Injunction Order
2. Page containing Section 2.02 of the Port Isabel City Charter
3. City of Alamo v. Garcia, 960 S.W.2d 221 (Tex. App.–Corpus Christi 1997)
28
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412S/201S 5:19:0<1 ~M
ErfeGotzo
cameron County Dietrict Clerk
CAUSE NO.lOlS-DCJ.-.2342 By S.o~"iel Zofl"O• l:leputy CIGrk
5072380
JUAN JOSE "JJ" ZAMOltr Apl'il 13,
,
2015; and (2) Without this temporary injunction, Plaintiffs will lose their righm to be included in
llie ongomg business of city government as Port Isabel City Commissio11ers and will lose their
.
right to vote on matters concerning Port Isabel ciiy gov=ent. Therefore, the Court finds tnat
hann is hntrrinent to l:'laimi:ffS if the court does not Jssuo. the t.emporary illj1mctio11 and that
p]a,!!1:ifis Wlil oe lll'eporaoly liarmed b<:cause (!) Plaintiffs were auJy electel:l to their respective
office~ as Port Isabel City Commissioners Places 1 antl3; (2) Defendants do not regard Plaill.t.iffs
as City Commissioners llt!y longer and will not allow Plointiffs to continue to oct as Ci;;•
Comnus:noners; an(] (3) Defendants' actions m ous~ng Plaurtit!S !rom tlietr pos!bO'ns as Port
Isabel City Commissioners dcpri"' Plaintiffs :from tbeir interests, righ.ts and entitlements as
afforded to Plai!ltiffs under tl1e law and Conoti.tution of the Sta:te of Te1>:as. The Court finds that
. . . .... ttle "!llJlllj' ana: ·nann to Plawttm· a6sent "tilL<" temporary 1DJWlCil.CID, Will· oe tmmeirulte ana - -' . -
103
05/12/2015 15:51 9563837608 139TH PAGE 02/03
K''' •.·;~15/"UE
,fl.' . "'' .... • . 1 i)3 Gl P!! GILBERTO HJNDJOSA LP •IF 'I 95"44
,',A ,· 0,b~ I .,.
;JJ P. CQ4
"
irreparable. Plaintiffs have established a probable right to reoovery since Plaintiffs were
-ved by D~fendaals os oil:! eoml!lissi011C!5 hl violatkm of lhe City ofi'ort .tsabel Horue RUle
Charter, mrte law and in violation of their d.ue process rlglm; protected under tbe Texas
ConstitntioJl,
IT IS TEEl/JlfORE omD, ADJ'UPGED A~ID DBCRBED that Defendmllo City of
Port Isabel, Maria de Jesus Ga."'Za in her individu~ capacity and her cnpaci1y as Port Isabel City
Commiosiouer Pla"e 2, Guilli!:!mo Toll'es in his individual capodty and his capacity as Port
Js,,bel Cify c":tllmissioner Pl"" 4 anf Port lsab=l &llol tt... l'91t Isabel Ciiy
Commission; (4) takin,g any action to replace Plaintiffs as Pon: !&abel City Co!lllllissioners Places
1 and 3; (5) declaring vac1111cies for Port Isabel City Comtnissioncr Places 1 and 3, and (6)
including as an !l(l•ndo item on any fntm• agencJ•. fo• removal ofPloimi:ffs !rom t:ll960 S.W.2d 221
(Cite as: 960 S.W.2d 221)
power.
Court of Appeals of Texas, [2] Municipal Corporations 268 159(6)
Corpus Christi.
THE CITY OF ALAMO and its Employees, Agents 268 Municipal Corporations
and all Those Acting in Concert with them or at 268V Officers, Agents, and Employees
their direction, Appellants, 268V(A) Municipal Officers in General
v. 268k153 Removal
Ponciano GARCIA, Appellee. 268k159 Proceedings and Review
268k159(6) k. Review. Most Cited
No. 13–97–340–CV. Cases
Nov. 25, 1997. Courts cannot interfere to protect person from
Rehearing Overruled Dec. 18, 1997. removal from municipal office by man or body of
men to whom the power to remove is given by law.
After city commissioner was removed from
board of commissioners and election was held for [3] Municipal Corporations 268 104
his seat, commissioner sued city to prevent seating
of newly elected commissioner. The 92nd District 268 Municipal Corporations
Court, Hidalgo County, Edward Aparicio, J., gran- 268IV Proceedings of Council or Other Govern-
ted former commissioner temporary injunction, and ing Body
city appealed. The Court of Appeals, Seerden, C.J., 268IV(A) Meetings, Rules, and Proceedings
held that: (1) after commissioner's seat was auto- in General
matically forfeited for absenteeism from board 268k104 k. Appeal from Decisions. Most
meetings, postdeprivation hearing before calling of Cited Cases
election for replacement commissioner was suffi- Court may review actions of city board of com-
cient to protect former commissioner's due process missioners for home rule city for abuse of discre-
rights, and (2) notice provision of Open Meetings tion and due process. U.S.C.A. Const.Amend. 14 §
Act did not apply to forfeiture of seat on city board 1; Vernon's Ann.Texas Const. Art. 1, § 19.
of commissioners for absenteeism from board meet-
[4] Constitutional Law 92 3875
ings.
92 Constitutional Law
Reversed and rendered.
92XXVII Due Process
West Headnotes 92XXVII(B) Protections Provided and
Deprivations Prohibited in General
[1] Municipal Corporations 268 65 92k3875 k. Factors Considered; Flexibil-
ity and Balancing. Most Cited Cases
268 Municipal Corporations (Formerly 92k251.5, 92k251.1)
268III Legislative Control of Municipal Acts,
Rights, and Liabilities Constitutional Law 92 3912
268k65 k. Local Legislation. Most Cited
Cases 92 Constitutional Law
Home rule city, which is governed by its city 92XXVII Due Process
charter, looks to legislature only to ascertain wheth- 92XXVII(B) Protections Provided and
er legislature has limited city's constitutional Deprivations Prohibited in General
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
960 S.W.2d 221
(Cite as: 960 S.W.2d 221)
92k3912 k. Duration and Timing of [6] Administrative Law and Procedure 15A
Deprivation; Pre- or Post-Deprivation Remedies. 124
Most Cited Cases
(Formerly 92k251.6) 15A Administrative Law and Procedure
Pre-deprivation hearing is not required in every 15AII Administrative Agencies, Officers and
case; rather, process required is measured by balan- Agents
cing of three factors: (1) private interest that will be 15Ak124 k. Meetings in General. Most Cited
affected by official action; (2) risk of erroneous Cases
deprivation of such interest through procedures In order for notice provision of Open Meetings
used, and probable value, if any, of additional or Act to apply to governmental body's meeting, gov-
substitute procedural safeguards; and (3) govern- ernmental body must act, discuss, or do public busi-
ment's interest, including function involved and ness. V.T.C.A. Government Code §§ 551.001(4),
fiscal and administrative burdens that additional or 551.041.
substitute procedural requirement would entail.
[7] Municipal Corporations 268 89
U.S.C.A. Const.Amend. 14 § 1; Vernon's
Ann.Texas Const. Art. 1, § 19. 268 Municipal Corporations
268IV Proceedings of Council or Other Govern-
[5] Constitutional Law 92 4174
ing Body
92 Constitutional Law 268IV(A) Meetings, Rules, and Proceedings
92XXVII Due Process in General
92XXVII(G) Particular Issues and Applica- 268k89 k. Calling and Notice of Meeting.
tions Most Cited Cases
92XXVII(G)7 Labor, Employment, and Notice provision of Open Meetings Act did not
Public Officials apply to forfeiture of seat on city board of commis-
92k4174 k. Elected Officials. Most sioners for absenteeism from board meetings; city
Cited Cases charter provision disqualifying commissioner was
(Formerly 92k278.4(5)) self-enacting and did not require action on part of
board. V.T.C.A. Government Code §§ 551.001(4),
Municipal Corporations 268 159(4) 551.041.
268 Municipal Corporations [8] Municipal Corporations 268 89
268V Officers, Agents, and Employees
268V(A) Municipal Officers in General 268 Municipal Corporations
268k153 Removal 268IV Proceedings of Council or Other Govern-
268k159 Proceedings and Review ing Body
268k159(4) k. Notice and Hearing. 268IV(A) Meetings, Rules, and Proceedings
Most Cited Cases in General
After city commissioner's seat was automatic- 268k89 k. Calling and Notice of Meeting.
ally forfeited for absenteeism from meetings of Most Cited Cases
board of commissioners, postdeprivation hearing
Municipal Corporations 268 92
before calling of election for a replacement com-
missioner was sufficient to protect former commis- 268 Municipal Corporations
sioner's due process rights. U.S.C.A. Const.Amend. 268IV Proceedings of Council or Other Govern-
14 § 1; Vernon's Ann.Texas Const. Art. 1, § 19. ing Body
268IV(A) Meetings, Rules, and Proceedings
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
960 S.W.2d 221
(Cite as: 960 S.W.2d 221)
in General (4) fails to attend four (4) consecutive regular
268k92 k. Rules of Procedure and Con- meetings of the Board of Commissioners unless
duct of Business. Most Cited Cases he is excused by unanimous vote of the Board of
Although notice provision of Open Meetings Commissioners, the vote to be taken at the end of
Act did not apply to forfeiture of seat on city board the fourth meeting; or
of commissioners for absenteeism from board meet-
ings, Act applied to subsequent hearing at which of- (5) fails to attend eight (8) regular meetings of
fending commissioner defended his absences and the Board of Commissioners in any anniversary
remainder of board voted on whether to excuse his year of such person, unless he is excused by un-
absences. V.T.C.A. Government Code §§ animous vote of the Board of Commissioners, the
551.001(4), 551.041. vote to be taken at the end of the eighth meeting
...
*222 Neil E. Norquest, Chris A. Brisack, Norquest
& Brisack, James E. Darling, Kevin D. Pagan, Mc- The City of Alamo alleges Place 4 Commis-
Allen, for appellants. sioner Ponciano Garcia missed four consecutive
meetings of the Board, and missed eight Board
Aaron Pena, Jr., Edinburg, Keith C. Livesay, McAl- meetings in one anniversary year. Thus, pursuant to
len, for appellee. the charter, Garcia's seat was automatically for-
feited. On January 7, 1997, the Board of Commis-
sioners (the Board) took a vote on whether Garcia's
Before SEERDEN, C.J., and FEDERICO G. HINO-
absences would be excused. The Board voted not to
JOSA, Jr. and CHAVEZ, JJ.
excuse Garcia.
OPINION On January 21, 1997, after allowing Garcia an
SEERDEN, Justice. opportunity to explain his absences, a majority of
The City of Alamo, appellant, appeals the trial the Board members, once again, *223 voted not to
court's decision to issue a temporary injunction pro- excuse Garcia's absences. An election was there-
hibiting it from swearing-in a newly elected com- after called for Place 4, i.e., former Commissioner
missioner. We reverse the trial court's decision and Garcia's seat.
order that the injunction be dissolved.
On April 11, 1997, Garcia filed an original pe-
[1] The City of Alamo is a home rule city gov- tition claiming that he had not forfeited his city
erned by its city charter. A home rule city looks to commission seat, and seeking to enjoin the election
the legislature only to ascertain whether the legis- of any individual to that seat. Without notice to ap-
lature has limited the city's constitutional power. pellant, a restraining order enjoining the election
Garza v. Garcia, 785 S.W.2d 421, 422 was entered on April 14, 1997. This order, under
(Tex.App.—Corpus Christi 1990, writ denied). “A protest of appellant, was subsequently withdrawn.
grant of power of removal from office is strictly See City of McAllen v. Garza, 869 S.W.2d 558, 560
construed and whatever is not given in unequivocal (Tex.App.—Corpus Christi 1993, writ denied)
terms is withheld and not implied.” Id. This Court (Texas law does not allow enjoining elections).
can take judicial notice of the city charter, which is
Garcia submitted himself as a candidate for the
in the record. See Id. Article II, section 6 of the
vacated seat on the city commission. On May 3,
Alamo City Charter provides, in relevant part:
1997, Marcelinos Medina defeated former Commis-
A mayor or Commissioner shall forfeit his of- sioner Garcia in the election for Place 4. On May 6,
fice if the Mayor or Commissioner: 1997, Garcia filed his first amended petition re-
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
960 S.W.2d 221
(Cite as: 960 S.W.2d 221)
questing declaratory and injunctive relief relating to however, be able to review a city council's (or com-
his forfeiture and the seating of Medina as commis- mission's) actions for abuse of discretion and due
sioner. The trial court, without notice to appellant process. Garza, 785 S.W.2d at 422.
or a hearing, granted Garcia's request for a tempor-
ary restraining order thereby prohibiting appellant The co-existence of these two rules was best
from swearing-in the newly elected commissioner. summed up by the San Antonio Court of Appeals in
At that time, the trial court set a hearing on Garcia's White v. Bolner, 223 S.W.2d 686
motion for a temporary injunction. (Tex.Civ.App.—San Antonio 1949, writ ref'd). In
White, Bolner and others sued White as the mayor
On May 30, 1997, after the hearing on Garcia's of the city of San Antonio. Bolner and others
motion, the trial court, finding the actions of the prayed for, and were granted, a temporary injunc-
Alamo City Commissioners unreasonable, orally tion “restraining A.C. White as Mayor of City of
granted a temporary injunction enjoining appellant San Antonio, from taking any other further action
from seating anyone in Place 4. A written order was to oust plaintiffs ... as commissioners of San Anto-
signed by the trial court on June 17, 1997, which nio Housing Authority, and also enjoining [the re-
added, as further grounds for the injunction, that the placement commissioners] from acting as commis-
self-enacting forfeiture provision violated the due sioners of the San Antonio Housing Authority.” Id.
process requirements of, presumably, the Texas at 687. In reversing and setting aside the injunction,
and/or United States Constitutions. The trial court the court stated that although Bolner and others
also found the City's charter to be in conflict with were entitled to judicial review, “the right to a re-
the Texas Open Meetings Act. view by a judicial body does not entitle appellees to
a temporary injunction, the effect of which is to
Appellant's request for emergency and manda- perpetuate them in office pending that review.” Id.
mus relief was denied by this Court. Appellant, pur- at 688. In conclusion, the court stated that the may-
suant to TEX. CIV. PRAC. REM.CODE ANN. § or,
51.014(4) (Vernon 1997), brings this interlocutory
appeal of an order granting a temporary injunction. ... [h]aving jurisdiction and having made an order
ousting appellees, this order must be presumed to
In its first point of error, appellant complains be correct and must be given effect until the con-
that the trial court lacked the authority to interfere, trary is shown. While appellees have a right to a
via injunctive relief, with the self-enacting forfeit- judicial review of this matter, they do not have
ure provision contained within the Alamo City the right to have this action by the mayor *224
Charter. Specifically, appellant argues that although suspended and rendered inoperative pending their
Garcia was entitled to judicial review of the Board's judicial review of the matter.
decision not to excuse his absences, injunctive re-
lief was not available. Id. at 688–89. See also Riggins v. City of Waco,
100 Tex. 32, 93 S.W. 426 ( 1906)(Texas Supreme
[2][3] Texas courts, in recognition of the Court concluded that it could not interfere with or
autonomy and separate powers of municipal legis- disregard the action of the city council in removing
latures, “will not interfere to protect a person from the mayor from office other than inquiring into
removal from office by a man or body of men to whether the council exceeded its lawful authority in
whom the power to remove is given by law.” Hunt- the attempted removal so that its action may be
ress v. McGrath, 946 S.W.2d 480, 484–85 considered a nullity); Huntress, 946 S.W.2d at 486
(Tex.App.—Fort Worth 1997, n.w.h.)(quoting (court, in granting mandamus relief, held the trial
Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S.W. court abused its discretion in enjoining hearings
328, 330 (1905, writ ref'd)). The courts will, conducted by city aldermen for removal of mayor);
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
960 S.W.2d 221
(Cite as: 960 S.W.2d 221)
Cosmo Life Insurance Co. v. State Board of Insur- removal ...”)(emphasis added) (quoting Riggins v.
ance, 319 S.W.2d 162, 165 (Tex.Civ.App.—Austin City of Waco, 100 Tex. 32, 93 S.W. 426, 427 (
1958, no writ)(citing White v. Bolner in support of 1906)); Industrial Accident Board v. O'Dowd, 298
its holding that Cosmo was entitled to judicial re- S.W.2d 657, 658–59 (Tex.Civ.App.—Austin)
view of Board's order regulating issuance of (affirming temporary injunction preventing Board
policies but that “such review does not entitle them from barring plaintiffs from practicing before
to a temporary injunction the effect of which is to Board based on unconstitutionality of statute pursu-
perpetuate regulations, and rates ...”). ant to which Board acted), rev'd, 157 Tex. 432, 303
S.W.2d 763 (1957)(reversed and dissolved tempor-
As appellant points out, the Board in the case at ary injunction finding statute pursuant to which
hand acted within their authority as provided under Board acted to be constitutional); City of Fort
the city charter. Therefore, appellant argues, based Worth v. McDonald, 293 S.W.2d 256, 259
on the caselaw cited above, Garcia was not entitled (Tex.Civ.App.—Fort Worth 1956, writ ref'd n.r.e.)
to injunctive relief. (enforcement of unconstitutional city ordinance
properly enjoined).
We do not question the authorities cited by ap-
pellant nor the proposition that the actions of the Therefore, it appears to us as though injunctive
Board, when acting pursuant to its lawful authority, relief is available where the Board acts pursuant to
are not subject to injunctive relief. However, in the “unlawful” authority. In this regard, the trial court,
cases cited by appellant, the actors were acting pur- upon finding the city charter violative of due pro-
suant to “lawful authority.” That is, the provisions cess considerations and the Open Meetings Act,
acted upon, whether they be city ordinances or oth- could have properly enjoined appellant.
er statutory authority, were either not challenged or
were found “lawful.” Appellant, however, in his second point of er-
ror and his reply brief, argues that the automatic
For example, in White v. Bolner, 223 S.W.2d at forfeiture provision of the city charter does not vi-
688–89 (discussed above), the San Antonio Court olate due process or the Open Meetings Act. We
of Appeals first overruled appellees' contention that agree.
the statutory authority upon which Mayor White re-
lied upon in ousting appellees was unconstitutional DUE PROCESS
and void because it failed to provide for judicial re- The United States Constitution provides:
view. Only then did the court examine the mayor's “[N]or shall any State deprive any person of life,
compliance with the statute and hold that appellees, liberty, or property, without due process of law ...”
while entitled to judicial review, were not entitled U.S. Const. Amend. XIV, § 1. The due process pro-
to injunctive relief. It appears from the language of vision of the Texas Constitution states: “No citizen
the opinion that if the statute was held unconstitu- of this State shall be deprived of life, liberty, prop-
tional as argued by appellees, the injunctive relief erty, privileges or immunities, or in any manner
granted by the trial court would have been affirmed. disenfranchised, except by the due course of *225
Cf. Garza, 785 S.W.2d at 423 (“the judgment of a the law of the land.” TEX. CONST. art. I, § 19.
governing body having discretionary power would Despite the textual differences between the two
not be reversed unless the body's action was illegal, provisions, the Texas Supreme Court has concluded
unreasonable, or arbitrary) (emphasis added)(citing there is no meaningful distinction between the pro-
Lewis v. City of Fort Worth, 126 Tex. 458, 89 visions. University of Texas Medical School at
S.W.2d 975 (1936)); Huntress, 946 S.W.2d at 485 Houston v. Than, 901 S.W.2d 926, 929 (Tex.1995).
(“the courts ... may inquire whether or not the coun- Therefore, we consider federal due process claims
cil exceeded its lawful authority in the attempted and State due course claims together using contem-
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 6
960 S.W.2d 221
(Cite as: 960 S.W.2d 221)
porary federal due process interpretations. Id. the constitutionality of every statute or ordinance is
accompanied by a presumption that it was drafted
When analyzing due process, we apply a two- with constitutional requisites in mind. TEX. GOV'T
part test: (1) we must determine whether appellee CODE ANN. § 311.021 (Vernon 1988); Texas Em-
had a liberty or property interest entitled to proced- ployment Com'n v. Remington York, Inc., 948
ural due process; and (2) if so, we must determine S.W.2d 352, 357 (Tex.App.—Dallas 1997, n.w.h.).
what process is due. Logan v. Zimmerman Brush Presumably, the City of Alamo, in drafting its
Co., 455 U.S. 422, 428, 102 S. Ct. 1148, 1153–54, charter, intended that Garcia be afforded an oppor-
71 L. Ed. 2d 265 (1982); Than, 901 S.W.2d at 929. tunity to be heard, albeit after his seat was declared
Assuming arguendo Garcia had a sufficient liberty vacant. House of Tobacco, Inc. v. Calvert, 394
or property interest in his position as city commis- S.W.2d 654, 658 (Tex.1965)(although statute does
sioner, we find the required process was provided. not provide for notice and a hearing, such is not un-
constitutional since these provisions may be by im-
[4] Due process at a minimum requires notice
plication incorporated into the statute unless the
and an opportunity to be heard at a meaningful time
statute expressly provides otherwise) (citations
and in a meaningful manner. Than, 901 S.W.2d at
omitted); Limon v. State, 947 S.W.2d 620, 626–27
930 (citing Mathews v. Eldridge, 424 U.S. 319,
(Tex.App.—Austin 1997, no pet. h.)(“[T]he fact
333, 96 S. Ct. 893, 901–02, 47 L. Ed. 2d 18 (1976)).
that a statute does not expressly provide for notice
What process is due is a “flexible” concept depend-
and hearing does not render it unconstitutional.”)
ing on the facts and circumstances of the particular
This is further evidenced by the fact that Garcia
case. Mathews, 424 U.S. at 334, 96 S.Ct. at 902;
was, upon request, given an opportunity to explain
Than, 901 S.W.2d at 930. In general, there is no
his absences to the Board on January 21, 1997. The
rule that a “pre-deprivation” hearing is required in
only question remaining is whether this post-
every case. Chaney v. Suburban Bus. Div. Of Re-
deprivation hearing was sufficient to comply with
gional Transportation Authority, 52 F.3d 623, 628
due process.
(7th Cir.1995). Rather, the process required is
measured by the balancing of three factors: (1) the [5] Applying the three Mathews factors, we
private interest that will be affected by the official conclude that a post-deprivation hearing was suffi-
action; (2) the risk of an erroneous deprivation of cient to protect Garcia's due process rights. Al-
such interest through the procedures used, and the though Garcia, being subject to an automatic for-
probable value, if any, of additional or substitute feiture provision, loses the right to challenge the
procedural safeguards; and (3) the government's in- applicability of the provision prior to forfeiture,
terest, including the function involved and the fiscal such an interest pales in comparison to other in-
and administrative burdens that the additional or terests. For example, when a board member effect-
substitute procedural requirement would entail. ively abandons the duties of his office, the need for
Mathews, 424 U.S. at 335, 96 S.Ct. at 902–03 the establishment of the vacancy becomes urgent.
The citizens of the city were not being represented
It is undisputed that Garcia received no notific-
as they were entitled to be, with a full Board of
ation that his office was to be vacated other than his
Commissioners. Additionally, the issue of the ap-
presumed knowledge of his own absences from the
plication of the charter *226 provision in question
board meetings and of the requirements of the city
is one of simple resolution. Determining whether a
charter. There was no hearing conducted prior to
commissioner misses four consecutive meetings, or
his automatic forfeiture. There is nothing in the city
eight meetings in a given year, is not likely to be
charter, however, which expressly forecloses the
subject to factual dispute. Accordingly, we con-
opportunity to be heard regarding the facts upon
clude that Garcia was afforded due process.
which his seat was forfeited. The presumption of
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 7
960 S.W.2d 221
(Cite as: 960 S.W.2d 221)
OPEN MEETINGS ACT (more important the governmental action, the more
As part of the basis in awarding injunctive re- specific the notice must be).
lief, the trial court found that the charter provisions
in question “were incapable of being satisfied and [7] The city charter provision in question,
simultaneously comply with the Open Meetings however, does not require action on the part of the
Act....” We disagree. Board. Rather, the charter provision which disquali-
fied Garcia from holding his position was self-
FN1
[6] The Open Meetings Act was enacted in enacting. Upon the occurrence of his fourth
1967 to assure that the public has the opportunity to consecutive and eighth absence, his disqualification
be informed about the transactions of public busi- from office was automatic without the need for fur-
ness. City of San Antonio v. Fourth Court of Ap- ther action by the remainder of the commission.
peals, 820 S.W.2d 762, 765 (Tex.1991); Acker v. The Board did not terminate Garcia's position; Gar-
Texas Water Com'n, 790 S.W.2d 299, 300 cia forfeited his position. Therefore, the provisions
(Tex.1990) (quoting Acts 1967, ch.271, § 7, 1967 of the Open Meetings Act are inapplicable.
Tex. Gen. Laws 597, 598). The act provides:
FN1. Under such an automatic forfeiture
A governmental body shall give written notice provision, only the occurrence of the dis-
of the date, hour, place, and subject of each meet- qualifying event itself, not the reasons
ing held by the governmental body. therefore, are relevant to whether the pro-
vision applies. See Harrison v. Chesshir,
TEX. GOV'T CODE ANN. § 551.041 (Vernon 316 S.W.2d 909, 914
1994). A “meeting” includes “a deliberation ... dur- (Tex.Civ.App.—Amarillo 1958), rev'd on
ing which public business or public policy over other grounds, 159 Tex. 359, 320 S.W.2d
which the governmental body has supervision or 814 (1959); Prince v. Inman, 280 S.W.2d
control is discussed or considered or during which 779, 781 (Tex.Civ.App.—Beaumont 1955,
the governmental body takes formal action.” TEX. no writ)(only fact susceptible to judicial
GOV'T CODE ANN. § 551.001(4) (Vernon 1994). review was determined to be whether dis-
From this definition and from an examination of the qualifying event occurred).
caselaw applying the Open Meetings Act, it is clear
that the governmental body must act, discuss, or do [8] The provisions of the Open Meetings Act
in order for the notice provision of the Open Meet- were, however, applicable to the subsequent hear-
ings Act to apply. See Acker, 790 S.W.2d at 300 ing (see discussion on due process) at which Garcia
(purpose of Act is to assure that public has the defended his absences, and the remainder of the
“opportunity to be informed concerning the transac- Board voted on whether to excuse Garcia's ab-
tions of public business.”); Markowski v. City of sences. There is no argument by either party that
Marlin, 940 S.W.2d 720, 725 (Tex.App.—Waco the requirements of the Open Meetings Act were
1997, no writ)(notice sufficient under act if it not met in relation to that hearing, nor would such
would alert reader to fact that some action would be affect our holding that the city charter provisions in
taken on certain topic); Rettberg v. Texas Dept. Of question are not inherently inconsistent with the no-
Health, 873 S.W.2d 408, 411, 413 tice provisions of the Open Meetings Act.
(Tex.App.—Austin 1994, no writ)(issue is whether
notice of governmental meeting was “sufficiently CONCLUSION
specific to alert the interested public that some dis- Accordingly, because due process considera-
cussion and action could occur ...”); Point Isabel tions are not violated, and because the city charter
Indep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176, 180 does not conflict with the Open Meetings Act, we
(Tex.App.—Corpus Christi 1990, writ denied) find the city charter to be “lawful” authority. There-
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 8
960 S.W.2d 221
(Cite as: 960 S.W.2d 221)
fore, because it is *227 uncontested that the Board
acted within the confines of the charter provisions,
injunctive relief is not available. (See above).
We sustain appellant's first and second points
of error, reverse the judgment of the trial court, and
render judgment that the order of injunction be dis-
solved. All other points need not be discussed.
TEX.R.APP. P. 47.1.
Tex.App.–Corpus Christi,1997.
City of Alamo v. Garcia
960 S.W.2d 221
END OF DOCUMENT
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