ACCEPTED 13-15-00237-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/3/2015 4:43:03 PM 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 OF7/6/2015 TEXAS 8:00:00 AM AT CORPUS CHRISTI - EDINBURGCECILE FOY GSANGER Clerk
CITY OF PORT ISABEL, TEXAS, MARIA DE JESUS GARZA, GUILLERMO TORRES AND JOE E. VEGA Appellants,
VS
JUAN JOSE “JJ” ZAMORA, SR., AND MARTIN C. CANTU Appellees.
From Cause Number 2015-DCL-02342 th In the 444 Judicial District Court of Cameron County, Texas
APPELLANT CITY OF PORT ISABEL’S BRIEF
Robert L. Collins Texas Bar No. 04618100 Audrey Guthrie Texas Bar No. 24083116 P.O. Box 7726 Houston, Texas 77270-7726 (713) 467-8884 (713) 467-8883 Facsimile houstonlaw2@aol.com ATTORNEYS FOR CITY OF PORT ISABEL
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Appellants Counsel for Appellants City of Port Isabel Robert L. Collins Texas Bar No. 04618100 Audrey Guthrie Texas Bar No. 24083116 P.O. Box 7726 Houston, Texas 77270-7726 (713) 467-8884 (713) 467-8883 Facsimile houstonlaw2@aol.com
Maria de Jesus Garza Michael R. Cowen Joe Vega Texas Bar No. 00795306 62 E. Price Road Brownsville, TX 78521 (956) 541-4981 (956) 504-3674 Facsimile michael@cowenlaw.com
Guillermo Torres Frank E. Perez Texas Bar No. 15776540 300 Mexico Boulevard Brownsville, TX 78520 (956) 504-5403 (956) 504-5991 Facsimile fperez@feperezandassociates.com
Appellees Counsel for Appellees Juan Jose “JJ” Zamora Gilbert Hinojosa Martin C. Cantu 622 East St. Charles St. Brownsville, Texas 78520 956-544-4218 Fax: 1-956-544-1335 ghinojosa@ghinojosalaw.net
ii TABLE OF CONTENTS
Identity of Parties and Counsel ............................................................................... ii
Index of Authorities ................................................................................................ v
Statement of the Case............................................................................................. vi
Statement of Oral Argument .................................................................................. vi
Issue Presented: ...................................................................................................... vi
The Temporary Injunction was granted in violation of Texas law, because Appellees did not present evidence to support their pleadings of a probable right to recovery.
Statement of Facts ................................................................................................... 1
Summary of Arguments .......................................................................................... 2
Argument and Authorities....................................................................................... 3
I. Supporting Law ............................................................................................ 3
II. The Temporary Injunction was granted in violation of Texas law, because Appellees did not present evidence to support their pleadings of a probable right to recovery. ......................................................................... 4
A. Appellees Cantu and Zamora testified that they conducted business with the City and, therefore, supported the Commission’s finding that they were in violation of the City Charter, Section 2.02 .......................................................................... 5
B. Appellees Cantu and Zamora presented evidence that supported the validity of the hearing and voting procedure, including their own use of the voting procedure at the same hearing ........................ 6
C. All the other evidence presented by Appellees was not relevant to their probable right to recovery addressing instead the irrelevant
iii possibility that another member conducted business with the city as well ................................................................................................. 7
Conclusion and Prayer ............................................................................................ 8
Certificate of Service ............................................................................................ 10
Certificate of Compliance ..................................................................................... 10
Certification .......................................................................................................... 11
iv INDEX OF AUTHORITIES
CASES PAGE(S)
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) ....................... 4, 5, 8
EMS USA, Inc. v. Shary, 309 S.W.3d 653, 657 (Tex. App. Houston 14th Dist. 2010) ....................................................................................................................... 4
IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 197 (Tex. App.--Fort Worth 2005, no pet.) ............................................................................................... 4
Wheel Factory v. Sma Props., L.P., 2002 Tex. App. LEXIS 4318 (Tex. App. Dallas June 18, 2002) ......................................................................................................... 4
STATUTES AND CONSTITUTIONS PAGE(S)
Port Isabel City Charter, Section 2.02 ........................................................ 1, 2, 4, 5
Tex. R. App. P. 6.3.................................................................................................... 10
Tex. R. App. P. 9.4(e) ............................................................................................... 11
Tex. R. App. P. 9.4(i) ................................................................................................ 11
Tex. R. App. P. 9.4(i)(1) ........................................................................................... 11
Tex. R. App. P. 9.5 (b)(d) and (e) ............................................................................. 10
v STATEMENT OF THE CASE
Nature of underlying proceeding Appellees, Juan Zamora and Martin Cantu were removed from their offices as City Commissioners for violations of the Port Isabel City Charter. Appellees filed suit against Relators, the City of Port Isabel, two City Commissioners, and the Mayor in their personal and official capacities claiming that Appellees should not have been removed from office and seeking an injunction to undue the vote and reinstate them into their offices.
Action complained of: On April 24, 2015, a hearing was held on Appellants Plea to Jurisdiction and Appellee’s Temporary Injunction. The Temporary Injunction was erroneously granted on April 24, 2015.
STATEMENT REGARDING ORAL ARGUMENT
There is sufficient applicable and well-established law to decide this issue
without oral arguments. However, if Appellees are granted oral arguments, then
Appellants request an equal opportunity to be heard and present argument.
ISSUES PRESENTED
The Temporary Injunction was granted in violation of Texas law, because
Appellees did not present evidence to support their pleadings of a probable right to
recovery.
vi STATEMENT OF FACTS
During a properly-noticed public meeting, and pursuant to a provision of
the Port Isabel City Charter, the City Commission, including Appellees, voted on
the potential violation of City Charter, Section 2.02, of three of the
Commissioners: Appellant Torres, Appellee Cantu, and Appellee Zamora. During
the meeting, by a duly-recorded majority vote, Appellees were removed from their
positions on the City Commission due to their business dealing with the City in
violation of Section 2.02. Port Isabel City Charter Section 2.02 provides for the
disqualification of office holders and candidates for City elected office for, among
other things, doing business with the City.
Appellees filed suit against Appellants in their individual and official
capacity for their actions in voting to remove Appellees from their positions on
the City Commission for violation of Section 2.02 of the City Charter by each
Appellee. CR4. Appellees contend by their petition that 1) they were erroneously
removed; or 2) in the alternative, that the City Charter provision is
unconstitutional. CR4. Appellees sought a temporary injunction requiring
reinstatement of Appellees as voting members of the Port Isabel City
Commission. A hearing was held on a Plea to Jurisdiction filed by Appellants and
Appellee’s Motion for Temporary Injunction on April 24, 2015, during which
Appellees presented three witnesses. RR:1. At the hearing, Appellees testified and
1 confirmed their own business dealings with the City and their participation in the
vote on whether or remove another commissioner for the same offense at the same
meeting. The court verbally granted the temporary injunction at the hearing. RR:1,
p. 121, ln. 5. The court did not sign a Temporary Injunction order at that time and
no bond was ever filed. Appellants filed an appeal on the denial of their temporary
injunction and notice of stay due to a separate appeal of the denial of the City’s
Plea to Jurisdiction, on May 12, 2015. CR102. That day, after Notice of Stay, the
Court appears to have signed an order granting the temporary injunction. To this
day, no bond has been filed.
SUMMARY OF ARGUMENTS
I. The Temporary Injunction was granted in violation of Texas law, because Appellees did not present evidence to support their pleadings of a probable right to recovery.
A. Appellees Cantu and Zamora testified that they conducted business with the City and, therefore, supported the Commission’s finding that they were in violation of the City Charter, Section 2.02.
At the Hearing on the Temporary Injunction, Appellees confirmed the facts that were the basis of the City Commission finding them in violation of the City Charter, Section 2.02. Appellants confirmed that they had automotive establishments and that, through those establishments, they conducted business with the City during their time as City Commissioners. RR:1 p. 94, ln 1-3, p.86, ln. 16-25; RR:1 p.86, ln. 8-22, p. 107, ln. 11-22.
2 B. Appellees Cantu and Zamora presented evidence that supported the validity of the hearing and voting procedure, including their own use of the voting procedure at the same hearing.
Appellees presented evidence that they placed on the agenda, and actively voted, on another Commissioner’s potential business dealings with the City and possible violation of the same City Charter provision at the same meeting where their business dealings were raised. Appellees confirmed that neither they, nor anyone else, raised any concerns about the Commission’s ability to vote on Commission’s business dealings and possible violations of the City Charter or the Commission’s ability to vote on the issues at that meeting until they were in litigation.
C. All the other evidence presented by Appellees was not relevant to their probable right to recovery addressing instead the irrelevant possibility that another member conducted business with the City as well.
The other evidence supplied by Appellees talked about the business another commissioner may have with the City, and the opinion of a local reporter that it is a good idea the City Charter anti-corruption provisions to be enforced.
Appellees did not provide any evidence that the City Charter was unconstitutional or that they had not violated the City Charter, and therefore were improperly removed. Appellees did not provide any evidence to establish their probable right to recovery, and therefore did not meet the legal requirements to obtain a temporary injunction.
ARGUMENT AND AUTHORITIES
I. Supporting Law
To obtain a temporary injunction, the applicant must 1) plead a cause of
action against the defendant that shows a probable right to recover on that cause of
action; and 2) show a probable, imminent, and irreparable injury in the interim.
3 Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); EMS USA, Inc. v.
Shary, 309 S.W.3d 653, 657 (Tex. App. Houston 14th Dist. 2010). The applicant
must then present evidence that establishes the cause of action and supports the
pleadings. Id.; IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 197
(Tex. App.--Fort Worth 2005, no pet.); Wheel Factory v. Sma Props., L.P., 2002
Tex. App. LEXIS 4318 (Tex. App. Dallas June 18, 2002).
II. The Temporary Injunction was granted in violation of Texas law,
because Appellees did not present evidence to support their
pleadings of a probable right to recovery.
Appellees’ cause of action is based on the enforcement of a provision of the
Port Isabel City Charter by a vote of the Port Isabel City Commission, which is an
integral part of the City government. The City Charter provides:
The Mayor, Commissioners, and other officers and employees… and shall not be interested in the profits or emoluments or any contract, job, work or service for the City of Port Isabel, or interested in the sale or lease to or by the City of any property, real or personal… Any officer or employee of the City who shall cease to possess any of the qualifications herein required shall forthwith forfeit his or her office...
Port Isabel City Charter Section 2.02
To meet the requirements for obtaining a temporary injunction, Appellees
had the burden to present evidence at the hearing on the Temporary Injunction that
established the elements of their cause of action and proved a probable right to
4 recovery. Butnaru, 84 S.W.3d at 204. However, Appellees did not present evidence
showing any probable right of recovery and, therefore, failed to meet their burden.
As a result, the Temporary Injunction Order should be vacated and reversed.
The only testimony Appellees presented at the hearing was from three
witnesses: Appellee Cantu, Appellee Zamora, and a witness named Manuel de la
Rosa. None of those witnesses presented evidence to support the assertion that
Appellees were not in violation of the City Charter and that they were improperly
removed.
A. Appellees Cantu and Zamora testified that they conducted business
with the City and, therefore, supported the Commission’s finding that they were in
violation of the City Charter, Section 2.02:
Cantu admitted that both he and Appellant Zamora conducted
business with the City of Port Isabel while they were commissioners.
RR:1 p. 94, ln 1-3, p.86, ln. 16-25.
Zamora confirmed Cantu’s testimony that Zamora conducted business
with the City. RR:1, p. 107, ln. 11-17, p. 91, 14-17.
Cantu and Zamora described the nature of their business dealings and
the involvement with the City that resulted in them making money
from business transactions with the City while claiming a position as
City Commissioner. RR:1 p.86, ln. 8-22, p. 107, ln. 11-22. 5 B. Appellees Cantu and Zamora presented evidence that supported the
validity of the hearing and voting procedure, including their own use of the voting
procedure at the same hearing.
Appellees attempted unsuccessfully to have a different City Commissioner
removed from office on the exact same alleged grounds, using the same voting
procedure, at the same hearing. RR:1, p. 112, ln. 4-10. After their effort failed, the
Commission proceeded to entertain and pass a Motion by majority vote to enforce
the City Charter mandate and remove Appellees from office for their admitted
business transactions with and profits from doing business with the City:
Cantu admitted that Appellees had proper notice of the public meeting
at issue. RR:1 p. 8, ln. 11-16.
Cantu admitted he and Zamora both had an opportunity to be heard
and defend the allegations that they had done business with the City at
the meeting, as they both attended the meeting. RR:1 p. 79, p.2-7.
Cantu admitted that the week’s regularly scheduled Tuesday meeting
was simply moved to Monday for convenience. RR:1 p.78, ln. 20-24.
Zamora confirmed that no one raised any issues about the City
Commission’s ability to vote on and decide the issue of their
disqualification to hold office and resulting removal, or to decide that
issue at that duly-noticed public meeting. RR:1 p. 112, ln. 4-10. 6 Cantu and Zamora admitted that they placed another Commissioner’s
possible disqualification and removal due to alleged business dealings
with the City on the agenda for the same meeting, that they pursued
that item, that it was considered, voted on, and rejected by the City
Commission at the very same meeting. RR:1 P.85, ln. 1-5, RR:1
p.105, ln. 10-16.
C. All the other evidence presented by Appellees was not relevant to
their probable right to recovery addressing instead the irrelevant possibility that
another member conducted business with the city as well:
Cantu and Zamora testified that Appellant Torres also did business
with the City. RR:1, p. 94, ln. 1-3. However, that testimony is not
relevant to their probable right to recovery and whether or not
Appellee Cantu and Appellee Zamora violated the City Charter and
were properly removed. In his testimony, Cantu confirmed that he set
a Commission evaluation of that business on the agenda for the same
meeting, during which the Commission voted on Cantu’s business
involvement. RR:1 P.85, ln. 1-5. The commission evaluated whether
or not Appellant Torres was in violation of the Charter, voted and
determined that he should not be removed. RR:1 p. 111, ln.25-p.112,
ln. 2. 7 The other witness presented by Appellees, Mr. de la Rosa, testified
that he was told Commissioners could do business with the City under
certain conditions and confirmed that he thought enforcing the law
prohibiting Commissioners from conducting business with the City
was a good idea. RR:1, p. 115, ln. 1-13, p. 117, ln. 6-19. Mr. de la
Rosa’s understanding of the law and opinions about how the law
should be applied is not relevant to Appellees’ right to recovery, and
serves as no evidence to support any Temporary Injunction.
The only other evidence provided by Appellees presented no additional
testimony in support of their pleadings and to establish their probable right to
recovery. RR:1 p. 121, ln. 1-2.
CONCLUSION AND PRAYER
Appellee’s filed suit claiming that their removal from the City Commission
for violations of the City Charter was improper, and they sought and obtained,
without evidence, a Temporary Injunction Order. However, Appellees failed to
meet their burden to support that pleading with sufficient evidence to prove a
violation of law and probable right to recovery. Without this essential element, the
temporary injunction was issued in violation of Texas law. Butnaru, 84 S.W.3d at
204.
8 Therefore Appellant City of Port Isabel prays this court will reverse the
order granting Appellee’s Motion for Temporary Injunction.
Respectfully submitted,
___________________ Robert L. Collins Texas Bar No. 04618100 Audrey Guthrie Texas Bar No. 24083116 P.O. Box 7726 Houston, Texas 77270-7726 (713) 467-8884 (713) 467-8883 Facsimile houstonlaw2@aol.com ATTORNEYS FOR CITY OF PORT ISABEL
9 CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that I have served this document on all other parties, on this 26th day of June, 2015 and July 3, 2015:
Gilbert Hinojosa 622 East St. Charles St. Brownsville, Texas 78520 Fax: 1-956-544-1335 ghinojosa@ghinojosalaw.net
Michael R. Cowen THE COWEN LAW GROUP 62 E. Price Road Brownsville, TX 78521 (956) 504-3674 Facsimile michael@cowenlaw.com
Frank E. Perez FRANK E. PEREZ & ASSOCIATES, PC 300 Mexico Boulevard Brownsville, TX 78520 (956) 504-5991 Facsimile fperez@feperezandassociates.com
Robert L. Collins
10 CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14- point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains 1,859 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
____________________________ Robert L. Collins
11 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 th In the 444 Judicial District Court of Cameron County, Texas
Tab A Temporary Injunction Order, signed May 12, 2015 TAB A