                                                                                   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




                                                             iv
                                         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




                                                               v
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

                                          1
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

                                          2
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.
                                             3
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

                                          4
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,

                                          5
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
                                          6
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

                                           7
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




                                        8
                         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




                                        9
                      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




                                        10
                             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
