Beck Steel, Inc. and John C. Beck v. City of Lubbock, Texas

570 S.W.3d 375

• Court: Court of Appeals of Texas
• Decided: January 16, 2019
• Docket: 07-18-00044-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-18-00044-CV ________________________

BECK STEEL, INC. AND JOHN C. BECK, APPELLANTS

V.

CITY OF LUBBOCK, TEXAS, ET AL., APPELLEES

On Appeal from the 237th District Court Lubbock County, Texas Trial Court No. 2017-516,881; Honorable Paul Davis, Senior Judge, Presiding by Assignment

January 16, 2019

EN BANC ORDER OF DISQUALIFICATION AND RECUSAL Before QUINN, C.J., CAMPBELL, PIRTLE, and PARKER, JJ.

This appeal arises from a class action suit filed by Appellants, Beck Steel, Inc. and

John C. Beck, against Appellees, the City of Lubbock and three City Officials in their

official capacities, seeking certification of a class comprised of drainage fee ratepayers

and the recovery of “drainage fees” charged by the City of Lubbock, which were collected in what Appellants allege to be a violation of the Municipal Drainage Utility Systems Act.1

In addition to seeking the recovery of drainage fees which Appellants contend were

illegally collected, Appellants further sought a declaratory judgment and permanent

injunction to prevent the charging and usage of allegedly illegal drainage fees in the

future.

Pursuant to a joint stipulation, the parties agreed the elements necessary to

certification of the class were satisfied, but further agreed that before proceeding with the

certification, each party would be permitted to file dispositive motions to be ruled upon by

the trial court before the class was certified by the court. The parties further agreed that

waiting until after dispositive motions were heard would not in any way waive any right to

seek class certification. Appellants filed a motion for partial summary judgment

requesting declaratory relief only and Appellees filed a cross-motion for summary

judgment on the merits. The trial court denied Appellants’ motion for partial summary

judgment and granted Appellees’ motion for summary judgment. This appeal followed.

Because three of the four Justices of the Seventh Court of Appeals (Chief Justice

Brian Quinn, Justice Patrick A. Pirtle, and Justice Judy C. Parker) or their spouses were

City of Lubbock property owners and/or drainage fee ratepayers during the period in

controversy, they stand to have a financial interest in the outcome of this case as a

potential member of the class and are, therefore, disqualified as a matter of law under

Article V, Section 11 of the Texas Constitution. TEX. CONST. art. V, § 11.

1 TEX. LOCAL GOV’T CODE ANN. §§ 552.041-.054 (West 2015 and West Supp. 2018).

2 Although the fourth, and only remaining Justice of the Seventh Court of Appeals

(Justice James T. Campbell) believes his association with the three disqualified justices

would not influence his judgment in this matter in any way, in the interest of promoting

confidence in the integrity and impartiality of the judiciary in accordance with the

standards of the Code of Judicial Conduct, and in order to promote efficiency in the

scheduling, presentation, and disposition of this matter, Justice Campbell desires to

voluntarily recuse himself pursuant to Rule 18b of the Texas Rules of Civil Procedure.2

Accordingly, each Justice of the Seventh Court of Appeals respectfully requests

the Texas Supreme Court to transfer this case in its entirety to another Court of Appeals

or to appoint to this court three justices to preside over this appeal, as that Court deems

appropriate.

It is so ordered.

Per Curiam

2See TEX. R. APP. P. 16.2 (authorizing recusal of appellate court justice according to the Texas Rules of Civil Procedure).