Opinion
NUMBER 13-15-00218-CVNUMBER 13-15-00237-CV
01-19-2016
CITY OF PORT ISABEL, TEXAS, MARIA DE JESUS GARZA, GUILLERMO TORRES AND JOE E. VEGA, Appellants, v. JUAN JOSE "JJ" ZAMORA, SR. AND MARTIN C. CANTU, Appellees.
On Appellants' Motion to Dismiss.
ORDER
Before Justices Garza, Benavides and Perkes
OrderPer Curiam
Appellants, the City of Port Isabel, Texas (the "City"), Maria de Jesus Garza, Guillermo Torres, and Joe E. Vega, perfected two appeals of orders rendered in trial court cause number 2015-DCL-2342-H. Attorney Humberto Silva, purporting to represent appellants, has filed a motion to dismiss the appeals. We will grant the motion in part and deny it in part.
I. BACKGROUND
The underlying proceeding arose from the removal of appellees, Juan Jose "JJ" Zamora Sr. and Martin C. Cantu, as members of Port Isabel's City Commission (the "Commission"). The Commission voted to remove Zamora and Cantu at a special meeting on April 13, 2015, purportedly on grounds that they had violated the City's charter by "doing business" with the City. Zamora and Cantu then filed suit in district court seeking a declaratory judgment and injunctive relief reinstating them as commissioners. The defendants in the suit, appellants here, include the other City commissioners at the time—Garza and Torres—as well as the City's mayor, Vega, in both their individual and official capacities.
Section 2.02 of the City's charter provides, in a section setting forth qualifications for commission membership, that commissioners "shall not be interested in the profits or emoluments or any contract, job, work or service for the City . . . ." The charter provides that, if a commissioner "fails to maintain" the listed qualifications, the commission "shall at its next regularly scheduled meeting declare a vacancy to exist and shall fill said vacancy" as set forth elsewhere in the charter. The charter further provides that "[a]ny officer or employee of the City who shall cease to possess any of the qualifications herein required shall forthwith forfeit his or her office . . . ."
On April 24, 2015, the trial court denied a plea to the jurisdiction filed on behalf of appellants by their attorneys at the time—Robert L. Collins for the City, Michael R. Cowen for appellants Garza and Vega, and Frank E. Perez for appellant Torres.
On May 12, 2015, the trial court granted a temporary injunction to Zamora and Cantu and set a final trial date of August 28, 2015. The temporary injunction order stated that appellees "have established a probable right to recovery" because appellees "were removed by [appellants] as city commissioners in violation of the City of Port Isabel Home Rule Charter, state law and in violation of their due process rights protected under the Texas Constitution." The temporary injunction order provided that appellants, in both their individual and official capacities, are prohibited from: (1) removing appellees as City commissioners; (2) "taking any actions to exclude [appellees] from participation in the business conducted" by the Commission; (3) "withholding information from [appellees] which would in any way impede [appellees'] ability to carry out their respective duties" as commissioners; (4) "taking any action to replace [appellees]" as commissioners; (5) declaring vacancies for appellees' Commission places; and (6) "including as an agenda item on any future agenda, the removal of [appellees]" as commissioners. Appellants, through their attorneys Collins, Cowen, and Perez, perfected appeals of both the denial of the plea to the jurisdiction and the temporary injunction.
Appellate cause number 13-15-00218-CV. Notice of this appeal, which sought to challenge only the denial of the plea to the jurisdiction, was filed on May 12, 2015. Appellants filed a motion for emergency relief in connection with this appeal, asking us to enjoin Zamora and Cantu from proceeding with the May 19 Commission meeting. We denied the motion for emergency relief on May 19, 2015.
Appellate cause number 13-15-00237-CV. Notice of this appeal, which sought to challenge the temporary injunction order, was filed on May 20, 2015.
Also on May 12, Jeffery David Martinez was sworn in as commissioner, replacing appellant Torres, whom Martinez defeated in an election that took place on May 9. See Estevan Medrano, Martinez, Cantu sworn in at meeting, PORT ISABEL-SOUTH PADRE PRESS (May 18, 2015), http://portisabelsouthpadre.com/2015/05/18/martinez-cantu-sworn-in-at-meeting (last visited Dec. 21, 2015).
On May 15, 2015, Zamora and Cantu filed notice of a special meeting of the Commission to be held on May 19. At the May 19 meeting, the Commission voted: (1) to vacate its earlier finding that Zamora and Cantu had violated the City charter; (2) to rescind any action taken to remove Zamora and Cantu as commissioners; and (3) to remove Collins as City Attorney. The Commission then voted on June 1 to appoint Silva as Collins' successor. Each vote was 3-2, with Vega and Garza providing the dissenting votes.
The City's charter provides that a special meeting may be called at any time by the Mayor or any two members of the Commission.
Also on May 15, Zamora and Cantu filed a "Notice of Nonsuit Without Prejudice" with regard to their claims pending in the trial court. See TEX. R. CIV. P. 162. Three days later, Zamora and Cantu filed a "Withdrawal of Plaintiffs' Notice of Nonsuit Without Prejudice and Request for Reinstatement," noting that "[a]s a result of circumstances and events occurring this weekend, it has become apparent that the continued intervention of this Court is necessary . . . ." The trial court rendered an order on May 18, 2015, reinstating the suit.
At the opening of the May 19 Commission meeting, Vega made the following remarks which appear in the official minutes:
The City Commission previously voted to remove Commissioner Juan Jose "JJ" Zamora and Commissioner Martin C. Cantu from office. After consulting with my counsel, I believe that this removal was lawful. That being said, a local court has entered a temporary order permitting Commissioner Zamora and Commissioner Cantu to vote at this meeting. This is only a temporary order and, based on my consultation with counsel, I am appealing it. If the Court of Appeals or Texas Supreme Court grants my appeal, Commissioner Zamora's vote will not count and everything that I anticipate will happen today will be undone. I also believe that Commissioner Cantu and Commissioner Zamora, as the persons who brought a lawsuit against the City, [have an] ethical conflict which should prohibit them from voting on matters related to that 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. I object to Commissioner Zamora voting on any matter and consider any vote he may make to be null and void. 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 that 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 will allow Commissioner Zamora and Commissioner Cantu to participate and for them to be able to claim to vote subject to my pending appeal and objections.
Silva, purporting to represent the City and the individual appellants in their official capacities, filed a "Motion to Show Authority" on June 23, 2015, in which he requested in part that we abate the appeals and remand to the trial court for determination as to whether Collins and his associates had authority to bring the appeals on behalf of the City. See TEX. R. CIV. P. 12. On June 30, 2015, Silva filed a separate "Motion to Show Authority and Motion to Strike Briefs" in which he requested in part that we abate the appeals and remand to the trial court for determination as to (1) whether Cowen has authority to bring the appeals on behalf of Garza and Vega in their official capacities, and (2) whether Perez has authority to bring the appeals on behalf of Torres in his official capacity. See id. After receiving responses from Collins, Cowen, Perez, and appellees, we abated the appeals on July 29, 2015 and remanded to the trial court to consider the issues raised in the motions to show authority.
Following a hearing, the trial court granted Silva's motions to show authority and rendered an order dated November 16, 2015 providing that: (1) Silva has authority to represent the City and the individual appellants in their official capacities in the underlying cause and in these appeals; (2) Collins, Cowen and Perez "are no longer permitted to appear in this cause" or in these appeals as representing the City or the individual appellants in their official capacities; and (3) striking "all pleadings filed in this case, and the appeals of this cause," by Collins, Cowen and Perez representing the City or the individual appellants in their official capacities. The trial court subsequently adopted findings of fact and conclusions of law supporting the order. The findings of fact included the following:
2. The City charter (Section 3.05) provides the City Commission with the power to appoint a City attorney to serve at the Commission's pleasure, to receive such compensation as may be fixed by the Commission, and to represent the City in all cases pending where the City is a party.
. . . .
5. The City Commission of the City of Port Isabel conducted a lawfully
posted Special Meeting on May 19, 2015 . . . .The trial court's conclusions of law included the following:
6. At the May 19, 2015 Special Meeting, the City Commission voted (3 in favor and 2 against) to terminate the legal services of Robert L. Collins . . . .
7. The Court finds that the City Commissioners that voted in favor of terminating the legal services of Robert L. Collins were dissatisfied with his services and did not have a personal or pecuniary interest in the termination of his services.
. . . .
10. The Court also finds that on June 1, 2015, at a lawfully posted Special Meeting the City Commission voted (3 votes in favor and 1 abstention) to retain the services of attorney Humberto Silva to represent the City of Port Isabel and the City Commission in their official capacity in this cause, and any pending appeals of that matter.
1. The Court concludes that the City of Port Isabel City Commissioners are governed by Chapter 171 of the Local Government Code. . . .
. . . .
3. The Court concludes that the respective City of Port Isabel Council Members [sic] actions and votes upon the termination of Robert Collins as attorney for the City of Port Isabel are not prohibited by any provision of Chapter 171 of the Local Government Code. The respective City of Port Isabel Council Members [sic] had no substantial interest nor prohibited economic effect in the actions and votes they respectively undertook to terminate Robert Collins . . . .
4. The Court concludes that the City of Port Isabel's City Charter has no conflict of interest provisions which would prohibit the City of Port Isabel City Council [sic] Members from taking action and voting to terminate Robert Collins as the City of Port Isabel attorney. The Court concludes that the conflict of interest laws do not prevent discussion or voting on any item where a majority of the members of a governmental body have similar conflicts of interest on the same item under Local Government Code Section 171.004(c). The Court concludes that since the majority of the City of Port Isabel City Commissioners including the Mayor of Port Isabel were parties to the instant action when the termination of Robert Collins took place, Section 171.004(c) negated any possible conflict, if any conflict existed. . . .
5. Accordingly, the Court concludes that the termination of Robert Collins as the [City] attorney by the respective City of Port Isabel Council Members [sic] that voted in favor was not a matter that involved any direct personal interest of such [City] Commissioners, such that the action would be void.
6. The Court further concludes that the respective City of Port Isabel Council Members [sic] actions and votes upon the hiring of Humberto Silva as the attorney for the [City] in this cause, and in the pending appeals in the Thirteenth Court of Appeals, are not prohibited by any provision of Chapter 171 of the Local Government Code. The respective City of Port Isabel Council Members [sic] had no substantial interest nor prohibited economic effect in the actions and votes they respectively undertook to hire Humberto Silva according to Section 171.002 and 171.004
7. Accordingly, the Court concludes that the hiring of Humberto Silva to represent the [City] in this cause, and in the pending appeals in the Thirteenth Court of Appeals, by the respective City of Port Isabel Commissioners that voted in favor was not a matter that involved any direct personal interest of such [City] Commissioners such that the action would be void.
Collins, Perez, and Cowen have filed objections with this Court regarding the trial court's November 16 order and the related findings and conclusions. In his objection, Collins argues that: (1) Silva "is not a party to this suit" and therefore "lacks standing to bring a motion to show authority"; and (2) the findings and conclusions "do not accurately reflect the facts of this case as proved by the record." Collins contends that the trial court's order should be reversed because 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." Perez objected to any findings which insinuate that he represents, or represented, Torres in his official capacity. Cowen argues that he must be permitted to represent Garza and Vega because Zamora and Cantu "should not have been allowed to vote on matters involving this lawsuit," including the appointment of a new City attorney.
In his objection, Cowen does not distinguish between the individual and official capacities of Garza and Vega.
II. MOTION TO DISMISS
Silva has now filed a motion to dismiss the appeals, contending that the Commission's May 19 and June 1 votes were valid, that he is the only attorney entitled to represent the City and its commissioners in their official capacities, and that the "City no longer wishes to expend any more tax payer dollars to pursue the costly appeal of this matter." See TEX. R. APP. P. 42.1(a)(1). He requests that we "dismiss [the City's] appeal" as well as "any appeals filed on behalf of [Vega, Garza, and Torres] for individual claims made against them arising from acts performed in their official capacity, in this cause."
We agree with Silva that he is exclusively authorized to represent the City in this appeal. Collins and Cowen argue that the Commission's May 19 and June 1 votes are invalid because Zamora and Cantu had a conflict of interest. In other words, as Cowen puts it: "As plaintiffs in a lawsuit against the City, [Zamora and Cantu] should not have been allowed to vote on matters involving that lawsuit." However, the only law they point to is section 171.004 of the local government code, which provides that a local public official, such as a city commissioner, must abstain from voting on an action if the official "has a substantial interest in a business entity or in real property" when the action will have a "special economic effect . . . that is distinguishable from the effect on the public" on the business entity or real property. TEX. LOC. GOV'T CODE ANN. § 171.004(a) (West, Westlaw through 2015 R.S.). There is no suggestion that the actions taken at the May 19 and June 1 meetings had any "special economic effect" on any business entity or real property in which Zamora or Cantu had an interest. Accordingly, we find that the May 19 and June 1 votes are valid and, pursuant to those votes, Silva is the only attorney authorized to represent the City in these proceedings.
The statute also provides that a local public official must file an affidavit "stating the nature and extent of [the official's] interest [in the business entity or real property]" in such situations. TEX. LOC. GOV'T CODE ANN. § 171.004(a) (West, Westlaw through 2015 R.S.). If the official files the affidavit, he or she is not required to abstain from further participation in the matter "if a majority of the members of the governmental entity of which the official is a member is composed of persons who are likewise required to file and who do file affidavits of similar interests on the same official action." Id. § 171.004(c). Subsection (c) of the statute, though cited by the trial court in its conclusions of law, is not applicable here because no affidavits were filed pursuant to subsection (a).
We reject Collins' contention that Silva lacked standing to bring a motion to show authority because he was not a party to the suit. Collins argues that "[a]n attorney who is not a party to the case does not have standing to file a Rule 12 motion." That is true. Phillips v. Phillips, 244 S.W.3d 433, 435 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing TEX. R. CIV. P. 12). But the entire point of Rule 12 is to allow for a determination of who is entitled to represent a party. See TEX. R. CIV. P. 12. Here, Silva alleged that he had the authority to represent the City, and the City was a party to the appeal. Therefore, Silva had standing to bring the motion. --------
Additionally, because "a suit against an employee in his official capacity seeks to impose liability on the governmental entity that employs him," Hidalgo Cnty. v. Gonzalez, 128 S.W.3d 788, 793 (Tex. App.—Corpus Christi 2004, no pet.) (citing Kentucky v. Graham, 473 U.S. 159, 163 (1985)), Silva is also the only attorney authorized to represent Garza, Torres, and Vega in their official capacities.
However, we disagree with Silva insofar as he claims he is entitled to represent Garza, Torres and Vega in their individual capacities. Silva contends in his motion that "[Garza, Torres and Vega], as the members of the City Commission of the City of Port Isabel, cannot be subject to individual claims, but can only be sued in their official capacity for actions taken as part of the City Commission of the City of Port Isabel." Silva may or may not be correct that Garza, Torres, and Vega cannot be held individually liable for actions they took as members of the City Commission, but the sole issue we are considering today is whether Silva has authority to represent those appellants, not whether the claims made against them are meritorious. Zamora's and Cantu's suit named Garza, Torres, and Vega in their individual capacities as defendants, and the trial court's temporary injunction explicitly applied to those appellants in their individual capacities. Accordingly, Garza, Torres, and Vega were entitled to appeal the trial court's orders in their individual capacities, and they are entitled to counsel of their choosing in that regard.
III. CONCLUSION
For the reasons set forth herein, we hereby GRANT IN PART appellants' motion to dismiss the appeals. As the duly appointed City Attorney, Silva is the only attorney authorized to represent the City and the individual appellants Garza, Torres, and Vega in their official capacities. Accordingly, we grant Silva's motion to dismiss the appeal with respect to those appellants. See TEX. R. APP. P. 42.1(a)(1). We deny the motion insofar as it seeks to dismiss the appeals brought by Garza, Torres, and Vega in their individual capacities. The appeals remain pending as to those appellants only. Any other pending motions are hereby denied as moot.
PER CURIAM Delivered and filed the 19th day of February, 2016.