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