ACCEPTED 13-15-00237-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS FILED 12/11/2015 10:13:04 PM IN THE 13TH COURT OF APPEALS Dorian E. Ramirez CORPUS CHRISTI CLERK
12/11/15 NO. 13-15-00237-CV DORIAN E. RAMIREZ, CLERK BY drodriguez RECEIVED IN 13th COURT OF APPEALS IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS FOR THE THIRTEENTH DISTRICT OF TEXAS10:13:04 PM 12/11/2015 AT CORPUS CHRISTI - EDINBURGDORIAN E. RAMIREZ 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 444thJudicial District Court of Cameron County, Texas
APPELLANT CITY OF PORT ISABEL’S SUPPLEMENTAL BRIEF, OBJECTIONS TO TRIAL COURT’S ORDER ON SILVA'S MOTION TO SHOW AUTHORITY, AND ORDER ADOPTING FINDINGS OF FACT AND CONCLUSIONS OF LAW
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
1 TO THE HONORABLE COURT OF APPEALS:
COMES NOW, City of Port Isabel, Texas, and its counsel, and files this
Supplemental Brief and Objection to the Trial Court’s Order on the Silva Motion
to Show Authority and Order Adopting Findings of Fact and Conclusions of Law,
and shows the court as follows:
SUMMARY
Humberto Silva is not a party to this suit and therefore lacks
standing to bring a motion to show authority. The City of Port Isabel
and counsel responded to Silva's Motion based on lack of standing to
bring a Motion pursuant to Rule 12, T.R.C.P., and timely raised the
objection at the hearing. The trial court did not rule on that objection.
Attorney Humberto Silva’s findings of fact and conclusions of law
should not have been adopted. The trial court issued an order
adopting the findings of fact and conclusions of law proposed by
Humberto Silva. Based upon the record of testimony, evidence and
affidavits before the court, Humberto Silva’s proposed findings do
not accurately reflect the facts of this case as proved by the record
and should not have been adopted.
Appellant's proposed findings of fact and conclusions of law should
have been adopted. The trial court did not issue any findings of fact
2 and conclusions of law until after initial briefs were filed making that
point. Based upon the record of testimony, evidence and affidavits
before the court, Appellant’s proposed findings accurately reflect the
facts of this case and should have been adopted.
Silva's Motion to Show Authority Should Be Denied and the Trial
Court's Order Reversed as Silva has no Standing to Bring the
Motion and as the Evidence Demonstrates that Appellees have
attempted by invalid action to use the appealed Temporary
Injunction to cause dismissal of Appellant's appeal of that Order,
thereby depriving counsel and litigants of due process and denying
this Court jurisdiction over a pending appeal.
EVIDENCE IN SUPPORT
Exhibit A: Trial Court Pleadings including: Humberto Silva’s Motion to Show Authority City’s Response to Motion to Show Authority City’s Supplemental Response Regarding Lack of Silva's Standing Order on Motion to Show Authority
Exhibit B: City of Port Isabel’s Proposed Findings of Fact and Law
Exhibit C: Excerpt of Testimony from Hearing on Motion to Show Authority
Exhibit D: City Commission Meeting Minutes and Agendas
Exhibit E: Excerpts from Port Isabel City Charter
3 Exhibit F: Affidavits by Mayor Vega, Commissioner Garza, and City Manager Ed Meza
Exhibit G: Trial Court’s Order Adopting Findings of Fact and conclusions of Law
Exhibit H: Hearing on Plaintiffs’ Request for Temporary Injunction and Defendants’ Plea to the Jurisdiction.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
During a properly-noticed public meeting on April 24, 2015, and pursuant
to a provision of the Port Isabel City Charter, the City Commission separately
considered and voted on the alleged violation of City Charter, Section 2.02, by
three of the Commissioners: Appellant Torres, Appellee Cantu, and Appellee
Zamora. During that meeting, by a duly-recorded majority vote, Appellees were
removed from their positions on the City Commission due to their admitted
business dealings with the City in violation of Section 2.02 through businesses in
which they have a substantial interest. Exhibit D, Exhibit E. Port Isabel City
Charter Section 2.02 prohibits such self-dealing and provides for the
disqualification of office holders and candidates for City elected office for, among
other things, doing business with the City. See Exhibit E.
Appellees, by their counsel Mr. Hinojosa, thereafter filed suit against the
City and the other Appellants in their individual and official capacities for their
actions in voting to remove Appellees from their positions on the City
4 Commission for violation of Section 2.02. Appellees sought a temporary
injunction requiring reinstatement of Appellees as voting members of the Port
Isabel City Commission. That injunction was granted and is currently the subject
of timely perfected appeal.
Having been returned to the City Commission by the appealed Temporary
Injunction, Appellees then posted public notice of their intent to hold a Port Isabel
City Commission meeting on May 19, 2015, wherein they would, purporting to
act as City Commissioners, bring action and vote to: 1) terminate the City
Attorney (Appellant’s counsel Mr. Collins); 2) vacate the Commission’s April 24,
2015 finding that Appellees violated the City Charter which was the basis of this
litigation; 3) rescind approval to pay counsel to represent the Appellants in this
case; 4) rescind approval for the investigation of their violations of the City
Charter; and 5) appoint a new City Attorney (Appellee's counsel Mr. Hinojosa).
See Exhibit D.
At that meeting, Appellant Vega, as Mayor of Port Isabel and presiding
officer for any City Commission meeting, read a statement that was made part of
the minutes of that meeting, declaring that any votes by Appellees on the topics
listed above would be void due to their direct respective conflicts of interest in
violations of Tex. Loc. Gov. Code 171.004. Exhibit C, pp. 35-36 (testimony of
Port Isabel City Secretary confirming that Mayor Vega raised the issue and gave
5 Appellees, and their counsel who was present, actual notice of their conflict of
interest prior to their actions in voting on the conflicted matters). This statement
was read as follows:
… Commissioner Cantu and Commissioner Zamora as the persons who brought the lawsuit against the City [have an] ethical conflict which should prohibit them from voting on matters related to the lawsuit. Any vote to remove the City Attorney or City Manager by Commissioner Zamora and Commissioner Cantu is also a violation of their ethical duty as they have a conflict of interest since these actions are designed to cause the City to abandon its right to appeal that order as well…. In relation to the items that have been placed on the agenda tonight, I believe they constitute a conflict of interest for both Commissioner Zamora and Commissioner Cantu and I believe if they vote on any such matter that [their] vote will be illegal and null and void. That being said, I am going to comply with the order of the court, and allow Commissioner Zamora and Commissioner Cantu to participate and for them to participate and for them to be able to claim to vote subject to my pending appeals and objections.
Exhibit D, p. 2, May 19, 2015 meeting.
Appellant Vega also gave fair notice to Appellees and their counsel Mr.
Hinojosa, that any agenda items that passed only because of Appellees’ self-
interested and improper participation in making a motion or second, and their
votes on any such matter, would be void. Despite their conflicts of self-interest
and the direct connection to this suit, this appeal, and Appellees’ respective
businesses, and despite actual public notice of these conflicts communicated to
Appellees and their counsel, Appellees proceeded to vote on the five issues
previously mentioned; and each issue was either moved or seconded by one or
6 more of Appellees. Exhibit D. Absent that improper action by Appellees, none of
these matters would have been considered, put to a vote or be alleged to have been
passed. Exhibit C, p. 27, 35-36.
After claiming to have terminated the City Manager and City Attorney by
these invalid actions and votes, Appellees then filed notice for a June 1 meeting,
wherein they purported by their further invalid actions and vote to hire Appellees’
attorney Gilberto Hinojosa, as the new City Attorney of Appellant. Exhibit D.
Appellees also purported to act and vote to declare that Humberto Silva would be
counsel for the City in this appeal, for the sole purpose of dismissing this appeal
and agreeing to the claims Appellees made in their lawsuit. Exhibit D. However,
Mr. Silva has no representation agreement or contract with the City of Port Isabel.
Exhibit C, p. 79.
As testified to by the City Secretary, the Minutes purporting to reflect that
action, which is the only way the public can determine what action this public
body purports to take, are “gibberish” and “nonsense” such that a member of the
public could not discern that the action taken by Appellees did indeed accomplish
what they claim -- removal of the City Attorney Mr. Collins, making Appellee's
counsel City Attorney, or retaining Mr. Silva to dismiss this appeal. See Exhibit C,
p. 48-49 (Testimony by City Secretary that she could not understand the meeting
minutes as written and that those minutes do not make sense in the English
7 language). Id. at 122 (Assistant City Attorney Dennis Houfek's testimony
confirming he cannot ascertain what the meeting minutes mean from plain
reading.) Section 551.021 of the Texas Government Code requires that “A
governmental body shall prepare and keep minutes or make a recording of each
open meeting of the body. The minutes must: (1) state the subject of each
deliberation; and (2) indicate each vote, order, decision, or other action taken.”
The above referenced Minutes do not follow this rule because they do not
“indicate each vote, order, decision, or other action taken.” As a result, and
because acts of a public body are only carried out in accordance with lawful,
public action when they can be discerned by members of the public through a
reading of the minutes of such action, Mr. Silva's claims must fail.
Additionally, the agenda posting for the meeting is in violation of the City
Charter and therefore any action was invalid. Exhibit C. at 123. Susana Alcocer,
the City Secretary, testified that the City Charter for the City of Port Isabel requires
that the City Secretary post any notice for a valid, lawful meeting of the City
Commission. Exhibit C, pp.24-25:
Q. … the charter that's in evidence before the Judge that requires that the city secretary, you as the city secretary, post any notice of any valid lawful meeting, correct?
A. Yes.
Q. … with respect to this May 19th meeting that has been offered as Exhibit 3, you did not post any notice for that meeting,
8 correct?
A. Yes, that's correct.
The Assistant City Attorney also confirmed that the posting of the meeting
agenda was in violation of the City Charter. Id. at 122. Action in an illegal
meeting of this public body is improper.
Appellants’ counsel, Robert L. Collins, has served as the official City
Attorney of Port Isabel since 2006, and has represented, defended and worked
with Appellants in this suit since its onset. See Exhibit F (Affidavit of Appellants).
These affidavits were given specific attention by the trial court. When the trial
court was asked to consider all affidavits and pleadings on file, the court replied
“I’m going to consider everything that I have before me and I will give it
whatever weight it deserves.” Exhibit C, pp 138. Appellants’ counsel, Robert
Collins, Michael Cowen, and Frank Perez, have and continue to meet with
Appellants and represent Appellants in this case. See Exhibit F. Other than the
invalid actions purported to have been taken by Appellees, Appellants have taken
no action or given any notice that Robert Collins no longer represents them or the
City in this suit and appeal. Id.
On October 23, 2015, the trial court held a hearing on Humberto Silva’s
motion to show authority, wherein Mr. Silva maintained that he is now the
attorney for the Defendant City of Port Isabel in this cause, and complained that
9 attorney’s Robert L. Collins and that counsel for the individual Appellants,
Michael Cowen, and Frank Perez did not have authority to represent the
Appellants. On October 26th, the trial court signed an order granting Mr. Silva’s
Motion to Show Authority, and decreeing that he had the authority to appear on
behalf of the City of Port Isabel. The same order purports to strike all pleadings
previously filed for Appellant City by Robert Collins, among other things. In
response, On November 30th, Appellants filed their brief and objections to the trial
court’s Order on Silva’s motion to Show Authority. After Appellant’s Brief was
filed pointing out that there were no Findings or Conclusions by the trial court, on
December 1st, 2015, the trial court appears to have signed the Order Adopting
Findings of Fact and Conclusions of Law submitted by Humberto Silva.
Appellants now supplement their November 30th brief and object to the Findings
of Fact and Conclusions of Law adopted by the trial court.
LEGAL AUTHORITY
Section 171 of the Texas Local Government Code prohibits public officials
with a substantial interest from voting or participating on matters involving that
business. Tex. Loc. Gov. Code 171.004. Purposefully violating the section is a
Class A misdemeanor. Id. at 171.003. Any vote that would not have passed without
the conflicted vote is voidable. Id. 171.006. Dallas County Flood Control Dist. No.
1 v. Cross, 815 S.W.2d 271, 278 (Tex. App. Dallas 1991). A local public official is
10 considered to have a substantial interest under this section if a person who has a
substantial interest is related to the official in the first degree of consanguinity or
affinity. Id. 171.002. Appellees, purporting to act in their official capacities, and
only allowed to claim to do so by the appealed temporary order in this case, acted
in direct conflict of interest when they took action and votes made the basis of
Silva's Motion to Show Authority. Those illegal votes and actions should be
disregarded, declared void and annulled.
OBJECTIONS
A. Humberto Silva was not a party in this suit and, therefore, did not have
standing to bring a motion to show authority.
Appellant and undersigned counsel timely filed a response contending that
Humberto Silva does not have standing to file or bring the motion to show
authority in this case, and brought that issue before the trial court at
commencement of the hearing. Rule 12 T.R.C.P., the only basis to challenge
authority of counsel under Texas law, does not provide a vehicle for the relief Mr.
Silva requests, and more fundamentally, the rule specifically addresses standing by
requiring that such a motion can only be filed by a party. Rule 12, T.R.C.P.;
Philips v Philips, 244 S.W.3d 433, 435 (Tex. App. -- Houston [1st Dist.] 2007, no
pet.). An attorney who is not a party to the case does not have standing to file a
Rule 12 motion. Id. Humberto Silva is not a party to this case, and, therefore, does
11 not have standing to file a motion to show authority of counsel. The City of Port
Isabel and counsel made subject of the motion timely raised the objection to
Humberto Silva’s lack of standing before the trial court. See Exhibit B.
After Mr. Silva identified himself on the record as the movant, Appellants’
Counsel, Robert Collins, stated at the hearing:
As a preliminary matter -- and I think we just heard Mr. Silva correctly state that he is the Movant. The case of Phillips v. Phillips directs us that Mr. Silva has no standing to be the Movant. And we filed a response objecting to his motion on the grounds that he has no standing. That precise issue was raised in the Phillips case, 244 S.W.3d 433. … What we have here is Mr. Silva, as an attorney, filing a motion challenging counsel for one of the parties. He's not a party. No party has made that motion. …that's exactly what happened in the Phillips [case], Judge. One of the lawyers made the motion and the Court of Appeals said this is disposed of as a matter of law.
Exhibit C, p. 6.
Other than the invalid actions purported to have been taken by Appellees,
Appellants have taken no action to appoint Silva or remove Robert Collins from
representing them in this suit and appeal. Exhibit F. Additionally, there is no
representation agreement to give Silva authority to represent the City in this suit.
Exhibit C, p. 79. The trial court erred in granting Mr. Silva’s motion, despite his
lack of standing. The trial court made no ruling on the standing issue despite it
being timely raised by Appellant's.
B. The Trial court should not have adopted The findings of fact and
conclusions of law proposed by Humberto Silva.
12 The findings of fact and conclusions of law proposed by Humberto Silva
and adopted by the trial court, and attached hereto as Exhibit G, do not accurately
reflect the facts of this case as established by the testimony, evidence and
affidavits admitted at the hearing and in the record. More specifically, appellants
object to the following findings for the following reasons:
In item number 5 of the Trial Court’s Findings of Fact, the court found that
the City conducted a lawfully-posted Special Meeting on May 19, 2015.
This conclusion is not supported because there is no evidence to that effect
and:
o According to testimony by City Secretary Susana Alcocer, the City
Charter requires that the City Secretary post any notice for any
meeting to be a valid, lawful meeting of the City Commission. Ms.
Alcocer did not post the notice for the meeting held on May 19.
Exhibit C, pp. 24-25. Therefore, the May 19th meeting was not
lawfully posted, notice was not lawfully given and the actions
therein taken were not in accordance with the City Charter or the
Texas Open Meetings laws.
o The Assistant City Attorney also testified that the posting of the
subject meeting agenda and notice of meeting was in violation of the
City Charter. Id at 122.
13 In item number 7 of the Silva proposed Findings of Fact, the court found
that the termination of Robert L. Collins as the city attorney was because
the City was dissatisfied with his services, and not because the
commissioners had a personal or pecuniary interest in the termination of
his services. In item number 8 of the Silva proposed Findings of Fact, the
court found that the termination of Robert L. Collins was not related to any
matter in which the city commissioners had a personal interest such that
they would have a conflict of interest. These conclusions are not supported
because there is no evidence to support them, they are so obviously against
the great weight of the evidence and:
o At the onset of the May 19th meeting, Mayor Vega gave notice to
Appellees that they had conflicts of interest, and that any vote to
remove the City Attorney or the City Manager would be a violation
of their ethical duty, would be a conflict of interest, would be illegal,
and would be null and void. Appellees had actual awareness of their
conflicts. Exhibit D, pp. 2.
o City Secretary Susana Alcocer, who is specially trained, experienced
and worked daily for many years with municipal conflict of interest
rules in her capacity as the official City Secretary, and who has
special training through the City Secretary Association and Texas
14 Municipal League with respect to municipal officials conflict of
interest issues, testified that Appellee Commissioners should not
have acted or voted if they have a personal interest in the outcome of
something, or if it pertains to them, as is obviously the case here.
Exhibit C, pp. 28-29.
o The action before this court is based upon Appellee’s admitted
dealings and business transactions with the City of Port Isabel
through businesses in which they admit to have a substantial interest
pursuant to Tex. Loc. Gov. Code 171.004. According to the
affidavit of then-City Manager Edward Meza, Appellees Cantu and
Zamora had conducted business with the City in violation of the City
Charter when they directed city employees to bring city vehicles to
their automotive businesses for service. Exhibit F, affidavit of
Edward Meza. In her affidavit, Appellant Commissioner Garza
stated that Appellees Cantu and Zamora admitted to doing business
with the city through their respective car repair businesses. Exhibit
F, Affidavit of Maria Garza. Appellant Mayor Joe Vega also stated
in his Affidavit that Appellees were doing and had done business
with the city. Exhibit F, Affidavit of Joe Vega. These affidavits were
part of the evidence submitted and considered by the trial court.
15 Exhibit C, pp 138. At the April 24th hearing before this court,
Appellee’s counsel judicially admitted Appellees respective breach
of the City Charter and self-dealing in business transactions with the
City: “They (the City of Port Isabel) would send their business to
Mr. Zamora on occasion, to his business to repair, they would send
their business to Mr. Cantu on occasion to repair…” Exhibit H, pp
14.
o Appellees Zamora and Cantu are the plaintiffs in this suit against the
City, which is being defended by Mr. Collins as City Attorney. Any
vote which would have an effect on this suit, including the vote to
remove Mr. Collins as City Attorney, would constitute a personal
interest in which Appellees have an obvious conflict. In addition,
during the June 1st meeting, Appellees sought to dismiss this appeal
challenging the injunction that is currently allowing them to remain
in office and purport to take these actions. The above-mentioned
testimony and affidavits establish that Appellees Zamora and Cantu
have both personal and pecuniary conflicts of interest in this matter.
In items number 11 of the Trial Court’s Findings of Fact, the court found
that there was no conflict of interest when Appellees acted as City
Commissioners to purport to retain attorney Humberto Silva. These
16 conclusions are not supported because Appellees Zamora and Cantu voted
to retain Mr. Silva in order to terminate the City of Port Isabel’s appeal,
where Appellees Zamora and Cantu are the plaintiffs who would benefit
and indeed economically profit from capitulation of the City’s position in
this litigation. Exhibit D, June 21 meeting minutes. As explained above,
Appellees have a personal and pecuniary interest in this lawsuit. The
conflict is obvious and there is no evidence to support the conclusion
adopted by the trial court.
In item number 3 of the Silva’s proposed Conclusions of Law, the trial
court found that Appellee’s acting as City Commissioners had no
substantial interest in nor prohibited economic effect from the actions and
votes they undertook to terminate Robert Collins as counsel for the City
according to section 171 of the Local Government Code. This conclusion
is not supported because there is no evidence to support it and because this
law does not apply:
o As stated above, the basis for the suit in which Humberto Silva
brought his motion to show authority as Movant, involves the
substantial personal economic interest of Appellee’s Zamora and
Cantu. See Exhibit F. Section 171 of the Texas Local Government
Code prohibits public officials with a substantial interest from voting
17 or participating on matters involving that business. Tex. Loc. Gov.
Code 171.004.
In item number 4 of the Silva proposed Conclusions of Law, the trial court
found that the Port Isabel City Charter has no conflict of interest provisions
which would prohibit Port Isabel City Council (sic) members from taking
actions terminating Robert Collins as counsel for the City. This conclusion
is not supported because there is no evidence to support it, it is contrary to
the evidence and the City Charter has precisely such a conflict of interest
prohibition:
o The Port Isabel City Charter states that “The Mayor, Commissioners,
and other officers and employees shall not be interested in the profit
or emoluments or any contract, job, work or service for the City of
Port Isabel.” Exhibit E, §2.02. The penalty for violation of §2.02 is
the immediate forfeiture of and disqualification from being a
candidate for or holding office. Id.
o According to the Affidavits of Edward Meza, and Appellants Mayor
Joe Vega, and Commissioner Garza, Appellees were doing business
with the City. Exhibit F. Appellee’s have admitted such business
activity. Exhibit I, pp 14.
18 o In purporting to act to remove Mr. Collins as City Attorney, so they
can then act to replace the City Attorney with Mr. Silva with orders
to dismiss the appeal before this court, Appellee Commissioners
Zamora and Cantu are attempting to usurp the legal consequence of
their violations of the city charter by further illegal acts and self-
dealing designed to interfere with this Court's jurisdiction and the
legal processes. 1
In item number 4 of the Silva’s proposed Conclusions of Law, the trial
court found that since the majority of the City of Port Isabel City
Commissioners were parties to the instant lawsuit when the termination of
Robert Collins took place, Section 171.004(c) negates any possible
conflict. This conclusion is not supported because the statute does not
apply to this case:
o Section 171.004(c) negates conflict if a majority of a governing body
is required to file affidavits under 171.004(a). 171.004(a) requires
anyone with a substantial interest in a business entity or real property
with an issue before the governing body to file an affidavit. Of the
five commissioners including the Mayor, only Commissioners
1 Also contrary to the City Charter which requires the City Attorney represent the City in all litigation – Mr. Silva does not purport to be City Attorney, indeed, Appellee’s trial counsel, Mr. Hinojosa now claims to be City Attorney, again through illegal acts and votes of Appellee’s
19 Zamora and Cantu, a minority, have an underlying business interest
conflict related to this lawsuit, and that has nothing to do with filing
affidavits. There are not a sufficient number of commissioners with a
substantial business interest to constitute a majority and potentially
invoke 171.004(c). This section does not apply, the evidence does
not support such a claim and this Conclusion is erroneous.
In item number 5 of the Silva proposed Conclusions of Law, the trial court
found that the termination of Robert Collins as the City Attorney was not a
matter that involved any direct personal interest of any commissioner such
that the action would be void. This conclusion is not supported because it
is contrary to the evidence and:
o As discussed above concerning Silva's proposed Finding of Facts
number 7, the record shows that here, the Appellees have an
admitted pecuniary interest and a personal interest. Section 171 of
the Texas Local Government Code prohibits public officials with a
substantial interest from voting or participating on matters involving
that business. Tex. Loc. Gov. Code 171.004. Here, Appellees have a
clear conflict in acting or voting concerning this appeal and lawsuit
and with respect to counsel's status as they have a direct interest in
this case, in the business they admittedly did with the City in
20 violation of the City Charter and state law, and in keeping their paid
positions as Commissioners despite the Charter mandate that they
are automatically removed from and disqualified to hold office. See
Exhibit E. Appellee's self-dealing and conflict could be no more
obvious.
In items numbers 6 and 7 of the Silva proposed Conclusions of Law, the
trial court found that the hiring of Humberto Silva as the attorney for the
City of Port Isabel in this case did not create a conflict of interest. This
conclusion is not supported because it is contrary to the evidence:
Appellees Zamora and Cantu acted and voted to retain Mr. Silva in order to
terminate the City of Port Isabel’s appeal of this case, where Appellees
Zamora and Cantu are the opposing parties. Exhibit D, June 21 meeting
minutes. The conflict of interest is obvious, and the alleged hiring of Silva
is in doubt due to the infirmity of the notice of that meeting and the fact
that the Minutes are defective due to being incomprehensible and not
comporting to 551.021 of the Texas Government Code. The trial court’s
finding has no basis.
In item number 9 of the Silva proposed Conclusions of Law, the trial court
concluded that Robert Collins failed to meet his burden of proof to show
that he had the requisite authority to represent the city in its official
21 capacity in the trial court and in this court. Item number 10 concludes that
Mr. Collins was lawfully terminated by the City, and no longer has the
authority to represent The City. These conclusions are not supported
because Silva had no standing to bring the Rule 12 motion and as they are
contrary to the evidence and record of this case:
o Appellees action and vote to remove Appellant's counsel Robert
Collins was invalid and void due to infirmity of the meeting notice,
an obvious conflict of interest, and the motion would not have been
considered or passed without the votes of the self-interested appellee
commissioners. In addition, Appellees action and vote to remove
Robert Collins was invalid and void because it is contrary to the law
to allow illegal and improper action and votes purportedly made as
part of the acts of a public body to be given any effect or probity in
this context and as the meeting was not properly noticed and as a
result any action purportedly taken at the meeting was improper as a
violation of the Open Meetings Act and the minutes, which are the
official statement of whatever action was taken are “gibberish and
nonsense” such that they cannot be discerned or reasonably claimed
to have accomplished what Mr. Silva alleges.
22 o Other than the void action and void vote, nothing in the record
indicates that Robert Collins has been removed as the City Attorney
of Port Isabel or as counsel in this case. As evidence of his
authority, Mr. Collins has continued to be and act as the attorney of
record and City Attorney in other litigation as proved by this record.
See Exhibit C, pp 24, where the Trial Court takes judicial notice that
Robert Collins was listed as counsel of record for the City of Port
Isabel in a case against the City of Brownsville the day of the
October 23rd hearing.
o The Port Isabel City Charter authorizes the City Attorney represent
the City in all cases pending in any Court wherein the City is a party.
Port Isabel City Charter §3.05.
o Assistant City Attorney Dennis Houfek testified based on special
knowledge and training including courses from Texas Municipal
League and other training on the issues of conflict of interest for
members of a public entity that Appellee Commissioners had a
conflict of interest in terminating Robert Collins as the City
Attorney, and that the vote to remove Robert Collins was void.
Exhibit C, pp. 118-121. Because the vote to remove him was void,
Mr. Collins remains the lawful City Attorney for the City of Port
23 Isabel, and has the authority to represent the City of Port Isabel.
In addition to the above, any action taken by Appellee Commissioners
Zamora and Cantu should be considered void, and no effect should be
given to their votes, because the injunction, which is the subject of this
appeal, allowing them to purport to sit as Commissioners and vote in the
first place, was improper. By attempting to use their improperly granted
authority to terminate the appeal challenging said authority, Appellees are
attempting frustrate the judicial process and circumvent the authority and
jurisdiction of this Court. This subverts the very foundations of justice for
a corrupt purpose.
C. Appellant’s proposed findings of fact and conclusions of law are
supported by the evidence and should have been adopted by the trial court.
As addressed in more detail in Appellant’s Findings of Fact and
Conclusions of Law attached hereto as Exhibit B, the City of Port Isabel
filed proposed findings of fact and conclusions of law which accurately
concluded that:
Humberto Silva is not a party to this lawsuit, and, therefore, did not have
standing pursuant to Rule 12 T.R.C.P..
The votes that purported to remove Robert Collins as City Attorney and
appoint Humberto Silva as Counsel in this suit are void due to the self-
24 interest of the commissioners who brought the motion, the substantial
self interest these commissioners have in this proceeding pursuant to
Tex. Loc. Gov. Code 171.004, and the fact that the motions would not
have been considered or passed without the actions of the self-interested
commissioners, Appellees.
Appellees not only purported to replace opposing counsel in this appeal
with an attorney of their choosing, but they also purported to appoint
their attorney, Mr. Hinojosa, as the new City Attorney. Conflicts of
interest of all involved in those dealings could be no more obvious.
Appellee/Plaintiffs plainly and openly used a temporary injunction meant
to maintain the status quo, and instead used the power of that appealed
order to accomplish their subsequent void and illegal actions and votes to
wrongfully claim to control both sides of this lawsuit, including their
stated intent to dismiss the City’s Appeal of the temporary injunction.
Due to the votes being void for personal conflicts of Appellees, Robert
Collins is City Attorney for Port Isabel and the only attorney of record
for Port Isabel in this lawsuit.
At the hearing, Mr. Hockema, the interim City Manager, testified that
there is no representation agreement authorizing Mr. Silva to represent
the City of Port Isabel. Exhibit C, p. 79.
25 Attached as Exhibit F, and made a part of the record the trial court
considered as reflected by the transcript of the hearing, are Affidavits by
City Manager, Ed Meza; Defendant (Appellant) Maria Garza; and
Defendant Appellant Joe Vega stating that it is their intention and desire
to pursue the appeal they filed and for the City to be represented in that
matter by Robert Collins. Exhibit F. Despite Appellants’ intention and
desire, Mr. Hockema admitted that Mr. Silva, who was appointed in a
motion by Appellees to represent Appellants, was specifically instructed
to terminate this appeal. Exhibit C, p. 79.
Appellee's Cantu and Zamora took actions to remove Appellants’ counsel
Mr. Collins from defending the lawsuit that they filed, but not from all
City of Port Isabel representation, demonstrating their intention to only
act when it fit their personal interests and benefitted them personally. The
City Secretary, Susana Alcocer, testified that no action has been taken to
remove Robert Collins as counsel representing Port Isabel in other
litigation. Exhibit C, p. 24.
o She testified that:
Q. There has not been any action by the City of Port Isabel or anybody out there claiming that I'm not representing the city as the city attorney in that lawsuit involving the City of Brownsville has there?
A. No.
26 o At the hearing, she described the specific acts of conflicts of
interest of Appellees in this case when she testified that: Cantu, a
Plaintiff (Appellee), in this lawsuit, made the motion to remove
Defendant (Appellant) City of Port Isabel’s counsel in this case at
the May 19, 2015 meeting; Exhibit C, pp. 27-28; and Appellee
Zamora seconded, and both Appellees Cantu and Zamora voted, to
retroactively remove Defendants Garza, Torres, and Vega’s
counsel in this lawsuit. Id. at pp. 37-38. Those are the improper
actions made the basis of the Motion to Show Authority. Rule 1,
T.R.C.P. would dictate that the wrongful actions of Appellees not
be supported by a Rule 12 motion as the rules should be applied to
do justice.
o The City Secretary also testified that Appellees Cantu and Zamora
repeatedly moved, seconded, and voted on items related to them
personally, and this lawsuit. Exhibit C, 43-45; Exhibit D (Meeting
minute showing Cantu and Zamora moving, seconding, and voting
on issues related to their personal business and litigation they filed
and are party to in their personal capacities). Appellee Cantu also
placed the agenda item, seconded, and voted to rescind the finding
that he violated the City Charter, Exhibit C, pp. 34, and that
27 without Cantu’s seconding, the vote would never have happened.
Exhibit C, p. 35; Exhibit D.
o Before serving Port Isabel as Assistant City Attorney, Dennis
Houfek served as a Special Agent of the Federal Bureau of
Investigation, and has worked in both the public and private sector.
Exhibit C, 117-118. At the hearing, Mr. Houfek explained that
Appellees Cantu and Zamora had a personal interest in the actions
related to this lawsuit and to remove the City Attorney and City
Manager so they could accomplish dismissal of this appeal and
victory in their litigation. He further testified that Appellees Cantu
and Zamora had a conflict and should not have moved, seconded
or voted on the issues related to themselves personally, and this
lawsuit, as described herein. Exhibit C, 121.
CONCLUSION
Mr. Silva did not have standing to bring a motion to show authority.
Therefore, there was no jurisdiction for the trial court to consider or grant
Mr. Silva's Motion, and it should be rendered as denied, and the same
Motion filed by Mr. Silva in this Court should likewise be denied. The
Findings of Fact and Conclusions of Law proposed by Mr. Silva and
adopted by the trial court do not accurately reflect the facts as demonstrated
28 by the record and applicable law, and the order adopting the Findings and
Conclusions should be reversed and disregarded. The facts are clear from the
record: Robert Collins is the proper attorney of record for the City of Port
Isabel, and no legitimate or lawful action has been taken to the contrary. The
City of Port Isabel’s filed and proposed findings of fact and conclusions of
law accurately reflect the facts and applicable law in this case.
PRAYER
Appellant City of Port Isabel, and its undersigned counsel, pray that for all
of the foregoing reasons, this Court will reverse the trial court’s order on Silva’s
Motion to Show Authority, and deny that Motion in this Court as well, allowing
this Appeal to proceed and so that justice may be done.
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
29 PORT ISABEL 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 11th day of December, 2015:
Humberto Silva Law Office of Humberto Silva P.O. Box 2091 Donna, Texas 78537 Tel. 956-463-4896 Hsilvalaw1993@yahoo.com
Ricardo L. Salinas Law Office of Salinas Flores 2011 North Conway Avenue Mission, TX 78572 Fax: 956-580-9688 rsalinaslaw@yahoo.com
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