                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 RAY E. GILBERT, JR.,                            §
                                                                 No. 08-08-00282-CV
                   Appellant,                    §
                                                                   Appeal from the
 v.                                              §
                                                           County Court at Law No. Three
                                                 §
 CITY OF EL PASO AND EL PASO                                  of El Paso County, Texas
 WATER UTILITIES PUBLIC SERVICE                  §
 BOARD,                                                            (TC# 2008-2030)
                                                 §
                   Appellees.


                                          OPINION

       Appellant, Mr. Ray E. Gilbert, Jr. (“Mr. Gilbert”) appeals the trial court’s grant of the

City of El Paso (“the City”) and El Paso Water Utilities Public Service Board’s (“the PSB”)

motion for summary judgment, the denial of his motion for summary judgment, and the court’s

entering a declaratory judgment in favor of the City and the Board.

       Mr. Gilbert is a resident of El Paso County, Texas, and a “user” under Section 402.044(9)

of the Municipal Drainage Utility Systems Act and owner/occupier of benefitted property as

defined by Section 402.044(1)(A) of the Municipal Drainage Utility Systems Act. The El Paso

Water Utilities Public Service Board is described as a department of the City of El Paso and it is

operated as a largely autonomous independent board. El Paso City Council’s Ordinance No. 752

created the PSB, and Section 8 of the Ordinance addresses the PSB’s authority over the

management and operation of the City’s waterworks plant and system, as well as its sewer

system. The PSB is a five-member board of trustees vested with management and control of a
utility system.

         The City, as it created this new district and in its pleadings below defending the

delegation of the district’s powers to the PSB, not surprisingly ignore the older, longer history of

the core issue at hand. Almost two decades ago, when the author had a front row seat, the City

introduced an ordinance to establish the same municipal drainage utility, but that effort was

labeled a “rainwater tax,” and weeks later a popular mayor and two city representatives lost their

reelections. Creation of a municipal drainage district would not be spoken of until “Storm

2006.”

         The major storms and flooding in July 2006 resulted in extensive damage to public and

private property, as well as the City’s stormwater drainage infrastructure, such as it was.

Following the floods, the City unshelved and undertook a new study of its existing stormwater

management program and options so as to address the stormwater management.

         A majority vote of the entire membership of the El Paso City Council adopted Ordinance

No. 16668 on June 19, 2007, and it became effective upon its adoption. Ordinance No. 16668

establishes a municipal drainage utility for the City pursuant to the provisions of Subchapter C of

Chapter 402 of the Texas Local Government Code, as amended (“the Municipal Drainage Utility

Systems Act” or “the Act”), § 402.041, et seq. The City adopted the Act and declared the

established municipal drainage utility system to be a public utility through Ordinance No. 16668.

         Ordinance No. 16668 provides that, except as otherwise provided in the ordinance or

under applicable law, the PSB shall have complete authority and control of the municipal

drainage utility system’s management and operation, as established by Ordinance No. 16668, on

behalf of the City. The City’s delegation to the PSB of management and operation of the City’s


                                                  -2-
municipal drainage utility was made pursuant to authority the City believes to exist in Chapter

1502 of the Texas Government Code, § 1502.001, et seq.

       After Ordinance No. 16668 was passed, the PSB held a public hearing on the proposed

rules and schedule of charges to be levied on the drainage utility. The PSB issued notice of the

time and place of the hearing three times in the El Paso Times for the public’s consideration of

these rules and charges, including the proposed schedule of drainage charges. The PSB adopted

the rules and original schedule of monthly stormwater fees for the City’s municipal drainage

(“Rules and Regulations No. 3”) utility at its regular meeting on December 12, 2007. The City

directed the PSB on behalf of the City to establish a schedule of drainage charges against all real

property in the proposed service area subject to charges. The PSB established rules for the rate

of furnishing the stormwater service, determined the charge for drainage service, set the schedule

of charges for the drainage service, and fixed the rates for drainage charges. Rules and

Regulations No. 3 took effect upon the PSB’s adoption. The monthly stormwater fees became

effective on March 1, 2008. In a special public meeting held in May 2008, the PSB reduced the

monthly utility rates charged for stormwater management.

       In late May 2008, Mr. Gilbert and two other plaintiffs, all of whom were residents of

El Paso County and “users” and “owners” or “occupiers” as defined under the relevant sections

of the Act, filed their original petition and application for injunction relief. The plaintiffs

brought the following claims against the City and the PSB: (1) for injunctive relief to restrain

them from imposing and collecting any stormwater fees and from enforcing Ordinance No.

16668 and Rules and Regulations No. 3; (2) for declaratory relief to conclude that the stormwater

fee, Ordinance No. 16668, and Rules and Regulations No. 3 were invalid on the bases that the


                                                  -3-
City lacked authority to delegate to the PSB powers granted to the City under the Act, that the

PSB lacked authority to establish or charge drainage fees, and that the City and the PSB failed to

comply with the Act. In the City and the PSB’s answer, they generally denied the plaintiffs’

allegations, and demanded strict proof of them. They also counterclaimed for declaratory

judgment.

        The plaintiffs initially requested a hearing on their application for temporary injunction,

which was set for June 6, 2008, but they later withdrew that request. The City filed its brief to

oppose temporary injunction on June 2, 2008. The trial court held a status conference hearing on

June 11, 2008, during which the parties agreed to proceed by submitting cross-motions for

summary judgment, for ruling without hearing or argument, unless the court so requested. The

parties then entered into a Rule 11 Agreement that the case would be submitted for disposition on

cross-motions for summary judgment, which would “dispose of all issues of all parties and

constitute the Court’s final judgment . . . .”

        After the parties filed their motions for summary judgment and the trial court held a

hearing on these motions, the court entered its final judgment in August 2008. The court granted

the City and the PSB’s motion for summary judgment, denied the plaintiffs’ motion for summary

judgment, and entered declaratory judgment in favor of the City and the PSB. The court also

awarded the defendants attorney’s fees in the amount of $25,000 in the event that the plaintiffs

appealed the judgment to this Court and $15,000 in the event that the plaintiffs sought review by

the Texas Supreme Court.

        In September 2008, the plaintiffs filed a motion for new trial. On the same day,

Mr. Gilbert filed his notice of accelerated appeal.


                                                 -4-
       Initially, we note that we must construe Mr. Gilbert’s brief liberally as he is appearing pro

se. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). However, pro se

litigants still must comply with all applicable procedural rules. Valadez v. Avitia, 238 S.W.3d

843, 845 (Tex.App.--El Paso 2007, no pet.); Martinez v. El Paso County, 218 S.W.3d 841, 844

(Tex.App.--El Paso 2007, pet. struck); Harris v. Showcase Chevrolet, 231 S.W.3d 559, 561

(Tex.App.--Dallas 2007, no pet.); Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex.App.--

El Paso 2006, no pet.).

       It is the appellant’s burden to properly raise and discuss the issues presented for review.

See TEX .R.APP.P. 38.1(f); Valadez, 238 S.W.3d at 845; Martinez, 218 S.W.3d at 844. “It would

be inappropriate for this Court to attempt to re-draft and articulate what we believe [Mr. Gilbert]

may have intended to raise as error on appeal.” Valadez, 238 S.W.3d at 845, citing Martinez,

218 S.W.3d at 845. An issue presented in an appellant’s brief is sufficient, if it directs the

reviewing court’s attention to the error about which the complaint is made. Valadez, 238 S.W.3d

at 845; Martinez, 218 S.W.3d at 844. An appellate court has no duty--or even right--to perform

an independent review of the record and applicable law to determine whether there was error.

Valadez, 238 S.W.3d at 845; Martinez, 218 S.W.3d at 844. Were we to do so, even on behalf of

a pro se appellant, we would be abandoning our role as neutral adjudicators and become an

advocate for that party. Valadez, 238 S.W.3d at 845; Martinez, 218 S.W.3d at 844. In the

review of a civil case, the appellate court has no discretion to consider an issue not raised in the

appellant’s brief, even if the ends of justice so require. Valadez, 238 S.W.3d at 845; Martinez,

218 S.W.3d at 844.

       For the most part, Mr. Gilbert’s brief does not comply with Texas Rule of Appellate


                                                 -5-
Procedure 38. However, the brief does clearly articulate one meritorious argument regarding the

trial court’s award of attorney’s fees. Mr. Gilbert asserts that the trial court awarded appellate

attorney’s fees without any evidence to support the award.

       At a hearing on the entry of judgment, the defendants’ attorney argued that the trial court

should order the plaintiffs to pay the defendants’ attorney’s fees. The court expressed a

reluctance to award attorney’s fees “because it may have a chilling effect in the future against

anyone who may want to pursue a claim -- whatever claim in the future -- against the City or the

County . . . .” The court did not make a ruling at the hearing, but stated that it would advise

counsel of its ruling later that day. The plaintiffs’ attorney requested a hearing on the amount of

fees in the event that the court decided that an award was appropriate. The court indicated that

another hearing would be held if it decided to award fees.1 Nevertheless, the record does not

reflect that another hearing was held. On the same day that the hearing on entry of judgment was

held, the trial court signed the final judgment, which denied attorney’s fees for the work

performed at the trial level, but awarded fees to the defendants in the amount of $25,000 for

appeal to this Court and $15,000 for any appeal to the Texas Supreme Court.

       An award of attorney’s fees under the Declaratory Judgments Act is within the trial

court’s discretion. See TEX .CIV .PRAC.&REM .CODE ANN . § 37.009 (Vernon 2008); Elijah

Ragira/VIP Lodging Group, Inc. v. VIP Lodging Group, Inc., 301 S.W.3d 747, 757 (Tex.App.--

El Paso 2009, pet. denied). We have routinely upheld predetermined attorney’s fees as being




       1
         The plaintiffs’ attorney stated that he wanted “to confirm, the opportunity, if the Court
does say attorney’s fees will be granted to contest them and attack them.” The court responded,
“Absolutely.”

                                                 -6-
“within the established jurisprudence of this State.”2 Gunter v. Bailey, 808 S.W.2d 163, 166

(Tex.App.--El Paso 1991, no writ); see also Pullman v. Brill, Brooks, Powell & Yount, 766

S.W.2d 527, 530 (Tex.App.--Houston [14th Dist.] 1988, no writ)(rejecting the argument that “the

predetermined award of attorney’s fees in the event of appeal is unconstitutional as a violation of

due process, or as a limitation on the right to access to the courts.”).

       However, a trial court may not punish a party for taking a successful appeal. ASAI v.

Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 123 (Tex.App.--El Paso 1996, no writ). An

unconditional award of attorney’s fees has a chilling effect on the paying party’s exercise of legal

rights. In re Ford Motor Co., 988 S.W.2d 714, 722 (Tex. 1998)(orig. proceeding). Accordingly,

an award of appellate attorney’s fees must be conditioned on the appeal being unsuccessful. See

In re Ford Motor Co., 988 S.W.2d at 721; ASAI, 932 S.W.2d at 123; see also Goebel v.



       2
          But here, where a citizen is challenging governmental action, I have come to believe that
such awards are a denial of the constitutional right to access the courts. I therefore take the rare
step of writing this separate footnote to address an issue that also troubled the trial court: Can the
award of attorney’s fees have an unconstitutional chilling effect on a citizen’s attempt to
challenge governmental action? It appears that the trial judge thought so, for he denied the City’s
request for over $44,000 in outside attorney’s fees at the trial level but he did award
predetermined appellate fees.
        I have found no case law discussing the potential chilling effect that an award of appellate
attorney fees could have when a citizen is challenging governmental action. As noted above, this
Court has upheld the award of predetermined appellate attorney’s fees and the Fourteenth Court
of Appeals has rejected the argument that “the predetermined award of attorney’s fees in the
event of appeal is unconstitutional as a violation of due process, or as a limitation on the right to
access to the courts.” Pullman v. Brill, Brooks, Powell & Yount, 766 S.W.2d 527, 530
(Tex.App.--Houston [14th Dist.] 1988, no writ).
        I have, however, come to believe that predetermined awards of appellate fees are
objectionable, in general, and especially noisome in cases, like this, where citizens challenge a
governmental action. If this were a patently frivolous law suit, I might be less offended; but it is
not. And it seems to me abundantly clear from the record that the award of predetermined
appellate attorney’s fees had a chilling effect such that Mr. Gilbert was left alone and pro se to
pursue his legal contentions.

                                                  -7-
Brandley, 76 S.W.3d 652, 658-59 (Tex.App.--Houston [14th Dist.] 2002, no pet.)(citing this rule

in a declaratory judgment case), disapproved on other grounds, Martin v. Amerman, 133 S.W.3d

262, 268 (Tex. 2004). The proper remedy for an unconditional award of appellate attorney’s fees

is to modify the judgment so that the award depends on the paying party’s lack of success on

appeal. Hoefker v. Elgohary, 248 S.W.3d 326, 332 (Tex.App.--Houston [1st Dist] 2007, no pet.).

       In this case, the award of appellate attorney’s fees was not conditioned on the appeal

being unsuccessful. Because Mr. Gilbert has not prevailed on the merits, the failure to make the

award conditional is harmless regarding his appeal to this Court. But it is not harmless as to any

petition for review to the Texas Supreme Court.

       Moreover, there must be evidence to support an award of attorney’s fees on appeal. See

Varner v. Cardenas, 218 S.W.3d 68, 69-70 (Tex. 2007); C & K Invs. v. Fiesta Group, Inc., 248

S.W.3d 234, 252 (Tex.App.--Houston [1st Dist.] 2007, no pet.); Reeves Cnty., Tx. v. Pecos River

Livestock, Inc., No. 08-99-00007-CV, 2000 WL 1433870, at *10 (Tex.App.--El Paso Sept. 28,

2000, no pet.)(not designated for publication). In this case, there is no evidence to support the

attorney’s fee award. At the hearing on the entry of judgment, counsel presented their arguments

regarding the propriety of awarding attorney’s fees. The defendants’ attorney indicated that he

had affidavits and supporting documents to establish the amount of attorney’s fees, but he did not

offer any evidence at the hearing. The plaintiffs’ attorney requested another hearing regarding

the amount of the fees if the trial court decided to make an award. Although the trial court

indicated that it would hold a subsequent hearing, no such hearing was held. Instead, the court

simply entered a final judgment, apparently prepared by the defendants, awarding appellate

attorney’s fees. Because there is no evidence to support the amounts contained in the judgment,


                                                -8-
the attorney’s fee award should be deleted from the judgment. See, e.g., Reeves Cnty., Tx., 2000

WL 1433870, at *11 (“[T]he award of appellate attorney’s fees was not conditioned on whether

[the appellants] were successful in prosecuting their appeal. Furthermore, there is no evidence in

the record supporting the reasonableness of the award. Accordingly, we . . . delete the award of

appellate attorney’s fees from the judgment.”).

       The trial court’s judgment is modified to delete the award of appellate attorney’s fees.

Because Mr. Gilbert did not adequately argue any other ground for reversal of the judgment, the

judgment is otherwise affirmed as modified.




October 13, 2010
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.




                                                  -9-
