                                                                                                        ACCEPTED
                                                                                                   13-15-00237-CV
                                                                                   THIRTEENTH COURT OF APPEALS
                                                                                          CORPUS CHRISTI, TEXAS
        FILED                                                                               12/11/2015 10:13:04 PM
IN THE 13TH COURT OF APPEALS                                                                      Dorian E. Ramirez
        CORPUS CHRISTI                                                                                       CLERK

         12/11/15                          NO. 13-15-00237-CV
DORIAN E. RAMIREZ, CLERK
BY drodriguez
                                                                   RECEIVED IN
                                                             13th COURT OF APPEALS
                                     IN THE COURT OF APPEALS
                                                          CORPUS CHRISTI/EDINBURG, TEXAS
                           FOR     THE THIRTEENTH DISTRICT OF   TEXAS10:13:04 PM
                                                             12/11/2015
                                   AT CORPUS CHRISTI - EDINBURGDORIAN E. RAMIREZ
                                                                      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
                     In the    444thJudicial District Court of Cameron County, Texas


           APPELLANT CITY OF PORT ISABEL’S SUPPLEMENTAL BRIEF,
         OBJECTIONS TO TRIAL COURT’S ORDER ON SILVA'S MOTION TO
          SHOW AUTHORITY, AND ORDER ADOPTING FINDINGS OF FACT
                        AND CONCLUSIONS OF LAW


                                                          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


                                                     1
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, City of Port Isabel, Texas, and its counsel, and files this

Supplemental Brief and Objection to the Trial Court’s Order on the Silva Motion

to Show Authority and Order Adopting Findings of Fact and Conclusions of Law,

and shows the court as follows:

                                   SUMMARY

           Humberto Silva is not a party to this suit and therefore lacks

             standing to bring a motion to show authority. The City of Port Isabel

             and counsel responded to Silva's Motion based on lack of standing to

             bring a Motion pursuant to Rule 12, T.R.C.P., and timely raised the

             objection at the hearing. The trial court did not rule on that objection.

           Attorney Humberto Silva’s findings of fact and conclusions of law

             should not have been adopted. The trial court issued an order

             adopting the findings of fact and conclusions of law proposed by

             Humberto Silva. Based upon the record of testimony, evidence and

             affidavits before the court, Humberto Silva’s proposed findings do

             not accurately reflect the facts of this case as proved by the record

             and should not have been adopted.

           Appellant's proposed findings of fact and conclusions of law should

             have been adopted. The trial court did not issue any findings of fact


                                          2
      and conclusions of law until after initial briefs were filed making that

      point. Based upon the record of testimony, evidence and affidavits

      before the court, Appellant’s proposed findings accurately reflect the

      facts of this case and should have been adopted.

    Silva's Motion to Show Authority Should Be Denied and the Trial

      Court's Order Reversed as Silva has no Standing to Bring the

      Motion and as the Evidence Demonstrates that 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.

                         EVIDENCE IN SUPPORT

Exhibit A: Trial Court Pleadings including:
                     Humberto Silva’s Motion to Show Authority
                     City’s Response to Motion to Show Authority
                     City’s Supplemental Response Regarding Lack of
                        Silva's Standing
                     Order on Motion to Show Authority

Exhibit B: City of Port Isabel’s Proposed Findings of Fact and Law

Exhibit C: Excerpt of Testimony from Hearing on Motion to Show
           Authority

Exhibit D: City Commission Meeting Minutes and Agendas

Exhibit E: Excerpts from Port Isabel City Charter

                                  3
      Exhibit F: Affidavits by Mayor Vega, Commissioner Garza, and
                 City Manager Ed Meza

      Exhibit G: Trial Court’s Order Adopting Findings of Fact and conclusions
                 of Law

      Exhibit H: Hearing on Plaintiffs’ Request for Temporary Injunction and
                 Defendants’ Plea to the Jurisdiction.

        FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      During a properly-noticed public meeting on April 24, 2015, and pursuant

to a provision of the Port Isabel City Charter, the City Commission separately

considered and voted on the alleged violation of City Charter, Section 2.02, by

three of the Commissioners: Appellant Torres, Appellee Cantu, and Appellee

Zamora. During that meeting, by a duly-recorded majority vote, Appellees were

removed from their positions on the City Commission due to their admitted

business dealings with the City in violation of Section 2.02 through businesses in

which they have a substantial interest. Exhibit D, Exhibit E. Port Isabel City

Charter Section 2.02 prohibits such self-dealing and provides for the

disqualification of office holders and candidates for City elected office for, among

other things, doing business with the City. See Exhibit E.

      Appellees, by their counsel Mr. Hinojosa, thereafter filed suit against the

City and the other Appellants in their individual and official capacities for their

actions in voting to remove Appellees from their positions on the City


                                         4
Commission for violation of Section 2.02. Appellees sought a temporary

injunction requiring reinstatement of Appellees as voting members of the Port

Isabel City Commission. That injunction was granted and is currently the subject

of timely perfected appeal.

      Having been returned to the City Commission by the appealed Temporary

Injunction, Appellees then posted public notice of their intent to hold a Port Isabel

City Commission meeting on May 19, 2015, wherein they would, purporting to

act as City Commissioners, bring action and vote to: 1) terminate the City

Attorney (Appellant’s counsel Mr. Collins); 2) vacate the Commission’s April 24,

2015 finding that Appellees violated the City Charter which was the basis of this

litigation; 3) rescind approval to pay counsel to represent the Appellants in this

case; 4) rescind approval for the investigation of their violations of the City

Charter; and 5) appoint a new City Attorney (Appellee's counsel Mr. Hinojosa).

See Exhibit D.

      At that meeting, Appellant Vega, as Mayor of Port Isabel and presiding

officer for any City Commission meeting, read a statement that was made part of

the minutes of that meeting, declaring that any votes by Appellees on the topics

listed above would be void due to their direct respective conflicts of interest in

violations of Tex. Loc. Gov. Code 171.004. Exhibit C, pp. 35-36 (testimony of

Port Isabel City Secretary confirming that Mayor Vega raised the issue and gave


                                          5
Appellees, and their counsel who was present, actual notice of their conflict of

interest prior to their actions in voting on the conflicted matters). This statement

was read as follows:

      … Commissioner Cantu and Commissioner Zamora as the persons
      who brought the lawsuit against the City [have an] ethical conflict
      which should prohibit them from voting on matters related to the
      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…. 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 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 allow Commissioner Zamora and Commissioner Cantu to
      participate and for them to participate and for them to be able to
      claim to vote subject to my pending appeals and objections.

      Exhibit D, p. 2, May 19, 2015 meeting.

      Appellant Vega also gave fair notice to Appellees and their counsel Mr.

Hinojosa, that any agenda items that passed only because of Appellees’ self-

interested and improper participation in making a motion or second, and their

votes on any such matter, would be void. Despite their conflicts of self-interest

and the direct connection to this suit, this appeal, and Appellees’ respective

businesses, and despite actual public notice of these conflicts communicated to

Appellees and their counsel, Appellees proceeded to vote on the five issues

previously mentioned; and each issue was either moved or seconded by one or


                                         6
more of Appellees. Exhibit D. Absent that improper action by Appellees, none of

these matters would have been considered, put to a vote or be alleged to have been

passed. Exhibit C, p. 27, 35-36.

      After claiming to have terminated the City Manager and City Attorney by

these invalid actions and votes, Appellees then filed notice for a June 1 meeting,

wherein they purported by their further invalid actions and vote to hire Appellees’

attorney Gilberto Hinojosa, as the new City Attorney of Appellant. Exhibit D.

Appellees also purported to act and vote to declare that Humberto Silva would be

counsel for the City in this appeal, for the sole purpose of dismissing this appeal

and agreeing to the claims Appellees made in their lawsuit. Exhibit D. However,

Mr. Silva has no representation agreement or contract with the City of Port Isabel.

Exhibit C, p. 79.

      As testified to by the City Secretary, the Minutes purporting to reflect that

action, which is the only way the public can determine what action this public

body purports to take, are “gibberish” and “nonsense” such that a member of the

public could not discern that the action taken by Appellees did indeed accomplish

what they claim -- removal of the City Attorney Mr. Collins, making Appellee's

counsel City Attorney, or retaining Mr. Silva to dismiss this appeal. See Exhibit C,

p. 48-49 (Testimony by City Secretary that she could not understand the meeting

minutes as written and that those minutes do not make sense in the English


                                         7
language). Id. at 122 (Assistant City Attorney Dennis Houfek's testimony

confirming he cannot ascertain what the meeting minutes mean from plain

reading.)   Section 551.021 of the Texas Government Code requires that “A

governmental body shall prepare and keep minutes or make a recording of each

open meeting of the body. The minutes must: (1) state the subject of each

deliberation; and (2) indicate each vote, order, decision, or other action taken.”

The above referenced Minutes do not follow this rule because they do not

“indicate each vote, order, decision, or other action taken.” As a result, and

because acts of a public body are only carried out in accordance with lawful,

public action when they can be discerned by members of the public through a

reading of the minutes of such action, Mr. Silva's claims must fail.

      Additionally, the agenda posting for the meeting is in violation of the City

Charter and therefore any action was invalid. Exhibit C. at 123. Susana Alcocer,

the City Secretary, testified that the City Charter for the City of Port Isabel requires

that the City Secretary post any notice for a valid, lawful meeting of the City

Commission. Exhibit C, pp.24-25:

      Q.     … the charter that's in evidence before the Judge that requires
             that the city secretary, you as the city secretary, post any notice
             of any valid lawful meeting, correct?

      A.     Yes.

      Q.     … with respect to this May 19th meeting that has been offered
             as Exhibit 3, you did not post any notice for that meeting,

                                           8
             correct?

      A.     Yes, that's correct.

      The Assistant City Attorney also confirmed that the posting of the meeting

agenda was in violation of the City Charter. Id. at 122. Action in an illegal

meeting of this public body is improper.

      Appellants’ counsel, Robert L. Collins, has served as the official City

Attorney of Port Isabel since 2006, and has represented, defended and worked

with Appellants in this suit since its onset. See Exhibit F (Affidavit of Appellants).

These affidavits were given specific attention by the trial court. When the trial

court was asked to consider all affidavits and pleadings on file, the court replied

“I’m going to consider everything that I have before me and I will give it

whatever weight it deserves.” Exhibit C, pp 138. Appellants’ counsel, Robert

Collins, Michael Cowen, and Frank Perez, have and continue to meet with

Appellants and represent Appellants in this case. See Exhibit F. Other than the

invalid actions purported to have been taken by Appellees, Appellants have taken

no action or given any notice that Robert Collins no longer represents them or the

City in this suit and appeal. Id.

      On October 23, 2015, the trial court held a hearing on Humberto Silva’s

motion to show authority, wherein Mr. Silva maintained that he is now the

attorney for the Defendant City of Port Isabel in this cause, and complained that


                                           9
attorney’s Robert L. Collins and that counsel for the individual Appellants,

Michael Cowen, and Frank Perez did not have authority to represent the

Appellants. On October 26th, the trial court signed an order granting Mr. Silva’s

Motion to Show Authority, and decreeing that he had the authority to appear on

behalf of the City of Port Isabel. The same order purports to strike all pleadings

previously filed for Appellant City by Robert Collins, among other things. In

response, On November 30th, Appellants filed their brief and objections to the trial

court’s Order on Silva’s motion to Show Authority. After Appellant’s Brief was

filed pointing out that there were no Findings or Conclusions by the trial court, on

December 1st, 2015, the trial court appears to have signed the Order Adopting

Findings of Fact and Conclusions of Law submitted by Humberto Silva.

Appellants now supplement their November 30th brief and object to the Findings

of Fact and Conclusions of Law adopted by the trial court.

                             LEGAL AUTHORITY

      Section 171 of the Texas Local Government Code prohibits public officials

with a substantial interest from voting or participating on matters involving that

business. Tex. Loc. Gov. Code 171.004. Purposefully violating the section is a

Class A misdemeanor. Id. at 171.003. Any vote that would not have passed without

the conflicted vote is voidable. Id. 171.006. Dallas County Flood Control Dist. No.

1 v. Cross, 815 S.W.2d 271, 278 (Tex. App. Dallas 1991). A local public official is

                                         10
considered to have a substantial interest under this section if a person who has a

substantial interest is related to the official in the first degree of consanguinity or

affinity. Id. 171.002. Appellees, purporting to act in their official capacities, and

only allowed to claim to do so by the appealed temporary order in this case, acted

in direct conflict of interest when they took action and votes made the basis of

Silva's Motion to Show Authority. Those illegal votes and actions should be

disregarded, declared void and annulled.

                                  OBJECTIONS

   A. Humberto Silva was not a party in this suit and, therefore, did not have

       standing to bring a motion to show authority.

      Appellant and undersigned counsel timely filed a response contending that

Humberto Silva does not have standing to file or bring the motion to show

authority in this case, and brought that issue before the trial court at

commencement of the hearing. Rule 12 T.R.C.P., the only basis to challenge

authority of counsel under Texas law, does not provide a vehicle for the relief Mr.

Silva requests, and more fundamentally, the rule specifically addresses standing by

requiring that such a motion can only be filed by a party. Rule 12, T.R.C.P.;

Philips v Philips, 244 S.W.3d 433, 435 (Tex. App. -- Houston [1st Dist.] 2007, no

pet.). An attorney who is not a party to the case does not have standing to file a

Rule 12 motion. Id. Humberto Silva is not a party to this case, and, therefore, does


                                           11
not have standing to file a motion to show authority of counsel. The City of Port

Isabel and counsel made subject of the motion timely raised the objection to

Humberto Silva’s lack of standing before the trial court. See Exhibit B.

      After Mr. Silva identified himself on the record as the movant, Appellants’

Counsel, Robert Collins, stated at the hearing:

      As a preliminary matter -- and I think we just heard Mr. Silva
      correctly state that he is the Movant. The case of Phillips v. Phillips
      directs us that Mr. Silva has no standing to be the Movant. And we
      filed a response objecting to his motion on the grounds that he has no
      standing. That precise issue was raised in the Phillips case, 244
      S.W.3d 433. … What we have here is Mr. Silva, as an attorney, filing
      a motion challenging counsel for one of the parties. He's not a party.
      No party has made that motion. …that's exactly what happened in the
      Phillips [case], Judge. One of the lawyers made the motion and the
      Court of Appeals said this is disposed of as a matter of law.

      Exhibit C, p. 6.

      Other than the invalid actions purported to have been taken by Appellees,

Appellants have taken no action to appoint Silva or remove Robert Collins from

representing them in this suit and appeal. Exhibit F. Additionally, there is no

representation agreement to give Silva authority to represent the City in this suit.

Exhibit C, p. 79. The trial court erred in granting Mr. Silva’s motion, despite his

lack of standing. The trial court made no ruling on the standing issue despite it

being timely raised by Appellant's.

   B. The Trial court should not have adopted The findings of fact and

      conclusions of law proposed by Humberto Silva.

                                         12
      The findings of fact and conclusions of law proposed by Humberto Silva

and adopted by the trial court, and attached hereto as Exhibit G, do not accurately

reflect the facts of this case as established by the testimony, evidence and

affidavits admitted at the hearing and in the record. More specifically, appellants

object to the following findings for the following reasons:

    In item number 5 of the Trial Court’s Findings of Fact, the court found that

       the City conducted a lawfully-posted Special Meeting on May 19, 2015.

       This conclusion is not supported because there is no evidence to that effect

       and:

          o According to testimony by City Secretary Susana Alcocer, the City

              Charter requires that the City Secretary post any notice for any

              meeting to be a valid, lawful meeting of the City Commission. Ms.

              Alcocer did not post the notice for the meeting held on May 19.

              Exhibit C, pp. 24-25. Therefore, the May 19th meeting was not

              lawfully posted, notice was not lawfully given and the actions

              therein taken were not in accordance with the City Charter or the

              Texas Open Meetings laws.

          o The Assistant City Attorney also testified that the posting of the

              subject meeting agenda and notice of meeting was in violation of the

              City Charter. Id at 122.


                                         13
 In item number 7 of the Silva proposed Findings of Fact, the court found

   that the termination of Robert L. Collins as the city attorney was because

   the City was dissatisfied with his services, and not because the

   commissioners had a personal or pecuniary interest in the termination of

   his services. In item number 8 of the Silva proposed Findings of Fact, the

   court found that the termination of Robert L. Collins was not related to any

   matter in which the city commissioners had a personal interest such that

   they would have a conflict of interest. These conclusions are not supported

   because there is no evidence to support them, they are so obviously against

   the great weight of the evidence and:

      o At the onset of the May 19th meeting, Mayor Vega gave notice to

         Appellees that they had conflicts of interest, and that any vote to

         remove the City Attorney or the City Manager would be a violation

         of their ethical duty, would be a conflict of interest, would be illegal,

         and would be null and void. Appellees had actual awareness of their

         conflicts. Exhibit D, pp. 2.

      o City Secretary Susana Alcocer, who is specially trained, experienced

         and worked daily for many years with municipal conflict of interest

         rules in her capacity as the official City Secretary, and who has

         special training through the City Secretary Association and Texas


                                        14
  Municipal League with respect to municipal officials conflict of

  interest issues, testified that Appellee Commissioners should not

  have acted or voted if they have a personal interest in the outcome of

  something, or if it pertains to them, as is obviously the case here.

  Exhibit C, pp. 28-29.

o The action before this court is based upon Appellee’s admitted

  dealings and business transactions with the City of Port Isabel

  through businesses in which they admit to have a substantial interest

  pursuant to Tex. Loc. Gov. Code 171.004.           According to the

  affidavit of then-City Manager Edward Meza, Appellees Cantu and

  Zamora had conducted business with the City in violation of the City

  Charter when they directed city employees to bring city vehicles to

  their automotive businesses for service. Exhibit F, affidavit of

  Edward Meza.      In her affidavit, Appellant Commissioner Garza

  stated that Appellees Cantu and Zamora admitted to doing business

  with the city through their respective car repair businesses. Exhibit

  F, Affidavit of Maria Garza. Appellant Mayor Joe Vega also stated

  in his Affidavit that Appellees were doing and had done business

  with the city. Exhibit F, Affidavit of Joe Vega. These affidavits were

  part of the evidence submitted and considered by the trial court.


                             15
         Exhibit C, pp 138. At the April 24th hearing before this court,

         Appellee’s counsel judicially admitted Appellees respective breach

         of the City Charter and self-dealing in business transactions with the

         City: “They (the City of Port Isabel) would send their business to

         Mr. Zamora on occasion, to his business to repair, they would send

         their business to Mr. Cantu on occasion to repair…” Exhibit H, pp

         14.

      o Appellees Zamora and Cantu are the plaintiffs in this suit against the

         City, which is being defended by Mr. Collins as City Attorney. Any

         vote which would have an effect on this suit, including the vote to

         remove Mr. Collins as City Attorney, would constitute a personal

         interest in which Appellees have an obvious conflict. In addition,

         during the June 1st meeting, Appellees sought to dismiss this appeal

         challenging the injunction that is currently allowing them to remain

         in office and purport to take these actions. The above-mentioned

         testimony and affidavits establish that Appellees Zamora and Cantu

         have both personal and pecuniary conflicts of interest in this matter.

 In items number 11 of the Trial Court’s Findings of Fact, the court found

   that there was no conflict of interest when Appellees acted as City

   Commissioners to purport to retain attorney Humberto Silva. These


                                     16
  conclusions are not supported because Appellees Zamora and Cantu voted

  to retain Mr. Silva in order to terminate the City of Port Isabel’s appeal,

  where Appellees Zamora and Cantu are the plaintiffs who would benefit

  and indeed economically profit from capitulation of the City’s position in

  this litigation. Exhibit D, June 21 meeting minutes. As explained above,

  Appellees have a personal and pecuniary interest in this lawsuit. The

  conflict is obvious and there is no evidence to support the conclusion

  adopted by the trial court.

 In item number 3 of the Silva’s proposed Conclusions of Law, the trial

  court found that Appellee’s acting as City Commissioners had no

  substantial interest in nor prohibited economic effect from the actions and

  votes they undertook to terminate Robert Collins as counsel for the City

  according to section 171 of the Local Government Code. This conclusion

  is not supported because there is no evidence to support it and because this

  law does not apply:

     o As stated above, the basis for the suit in which Humberto Silva

        brought his motion to show authority as Movant, involves the

        substantial personal economic interest of Appellee’s Zamora and

        Cantu. See Exhibit F. Section 171 of the Texas Local Government

        Code prohibits public officials with a substantial interest from voting


                                   17
         or participating on matters involving that business. Tex. Loc. Gov.

         Code 171.004.

 In item number 4 of the Silva proposed Conclusions of Law, the trial court

   found that the Port Isabel City Charter has no conflict of interest provisions

   which would prohibit Port Isabel City Council (sic) members from taking

   actions terminating Robert Collins as counsel for the City. This conclusion

   is not supported because there is no evidence to support it, it is contrary to

   the evidence and the City Charter has precisely such a conflict of interest

   prohibition:

      o The Port Isabel City Charter states that “The Mayor, Commissioners,

         and other officers and employees shall not be interested in the profit

         or emoluments or any contract, job, work or service for the City of

         Port Isabel.” Exhibit E, §2.02. The penalty for violation of §2.02 is

         the immediate forfeiture of and disqualification from being a

         candidate for or holding office. Id.

      o According to the Affidavits of Edward Meza, and Appellants Mayor

         Joe Vega, and Commissioner Garza, Appellees were doing business

         with the City. Exhibit F. Appellee’s have admitted such business

         activity. Exhibit I, pp 14.




                                       18
            o In purporting to act to remove Mr. Collins as City Attorney, so they

               can then act to replace the City Attorney with Mr. Silva with orders

               to dismiss the appeal before this court, Appellee Commissioners

               Zamora and Cantu are attempting to usurp the legal consequence of

               their violations of the city charter by further illegal acts and self-

               dealing designed to interfere with this Court's jurisdiction and the

               legal processes. 1

     In item number 4 of the Silva’s proposed Conclusions of Law, the trial

        court found that since the majority of the City of Port Isabel City

        Commissioners were parties to the instant lawsuit when the termination of

        Robert Collins took place, Section 171.004(c) negates any possible

        conflict. This conclusion is not supported because the statute does not

        apply to this case:

            o Section 171.004(c) negates conflict if a majority of a governing body

               is required to file affidavits under 171.004(a). 171.004(a) requires

               anyone with a substantial interest in a business entity or real property

               with an issue before the governing body to file an affidavit. Of the

               five commissioners including the Mayor, only Commissioners


1  Also contrary to the City Charter which requires the City Attorney represent the City in all
litigation – Mr. Silva does not purport to be City Attorney, indeed, Appellee’s trial counsel, Mr.
Hinojosa now claims to be City Attorney, again through illegal acts and votes of Appellee’s

                                               19
         Zamora and Cantu, a minority, have an underlying business interest

         conflict related to this lawsuit, and that has nothing to do with filing

         affidavits. There are not a sufficient number of commissioners with a

         substantial business interest to constitute a majority and potentially

         invoke 171.004(c). This section does not apply, the evidence does

         not support such a claim and this Conclusion is erroneous.

 In item number 5 of the Silva proposed Conclusions of Law, the trial court

   found that the termination of Robert Collins as the City Attorney was not a

   matter that involved any direct personal interest of any commissioner such

   that the action would be void. This conclusion is not supported because it

   is contrary to the evidence and:

      o As discussed above concerning Silva's proposed Finding of Facts

         number 7, the record shows that here, the Appellees have an

         admitted pecuniary interest and a personal interest. Section 171 of

         the Texas Local Government Code prohibits public officials with a

         substantial interest from voting or participating on matters involving

         that business. Tex. Loc. Gov. Code 171.004. Here, Appellees have a

         clear conflict in acting or voting concerning this appeal and lawsuit

         and with respect to counsel's status as they have a direct interest in

         this case, in the business they admittedly did with the City in


                                      20
         violation of the City Charter and state law, and in keeping their paid

         positions as Commissioners despite the Charter mandate that they

         are automatically removed from and disqualified to hold office. See

         Exhibit E. Appellee's self-dealing and conflict could be no more

         obvious.

 In items numbers 6 and 7 of the Silva proposed Conclusions of Law, the

   trial court found that the hiring of Humberto Silva as the attorney for the

   City of Port Isabel in this case did not create a conflict of interest. This

   conclusion is not supported because it is contrary to the evidence:

   Appellees Zamora and Cantu acted and voted to retain Mr. Silva in order to

   terminate the City of Port Isabel’s appeal of this case, where Appellees

   Zamora and Cantu are the opposing parties. Exhibit D, June 21 meeting

   minutes. The conflict of interest is obvious, and the alleged hiring of Silva

   is in doubt due to the infirmity of the notice of that meeting and the fact

   that the Minutes are defective due to being incomprehensible and not

   comporting to 551.021 of the Texas Government Code. The trial court’s

   finding has no basis.

 In item number 9 of the Silva proposed Conclusions of Law, the trial court

   concluded that Robert Collins failed to meet his burden of proof to show

   that he had the requisite authority to represent the city in its official


                                     21
capacity in the trial court and in this court. Item number 10 concludes that

Mr. Collins was lawfully terminated by the City, and no longer has the

authority to represent The City. These conclusions are not supported

because Silva had no standing to bring the Rule 12 motion and as they are

contrary to the evidence and record of this case:

   o Appellees action and vote to remove Appellant's counsel Robert

      Collins was invalid and void due to infirmity of the meeting notice,

      an obvious conflict of interest, and the motion would not have been

      considered or passed without the votes of the self-interested appellee

      commissioners. In addition, Appellees action and vote to remove

      Robert Collins was invalid and void because it is contrary to the law

      to allow illegal and improper action and votes purportedly made as

      part of the acts of a public body to be given any effect or probity in

      this context and as the meeting was not properly noticed and as a

      result any action purportedly taken at the meeting was improper as a

      violation of the Open Meetings Act and the minutes, which are the

      official statement of whatever action was taken are “gibberish and

      nonsense” such that they cannot be discerned or reasonably claimed

      to have accomplished what Mr. Silva alleges.




                                  22
o Other than the void action and void vote, nothing in the record

   indicates that Robert Collins has been removed as the City Attorney

   of Port Isabel or as counsel in this case.       As evidence of his

   authority, Mr. Collins has continued to be and act as the attorney of

   record and City Attorney in other litigation as proved by this record.

   See Exhibit C, pp 24, where the Trial Court takes judicial notice that

   Robert Collins was listed as counsel of record for the City of Port

   Isabel in a case against the City of Brownsville the day of the

   October 23rd hearing.

o The Port Isabel City Charter authorizes the City Attorney represent

   the City in all cases pending in any Court wherein the City is a party.

   Port Isabel City Charter §3.05.

o Assistant City Attorney Dennis Houfek testified based on special

   knowledge and training including courses from Texas Municipal

   League and other training on the issues of conflict of interest for

   members of a public entity that Appellee Commissioners had a

   conflict of interest in terminating Robert Collins as the City

   Attorney, and that the vote to remove Robert Collins was void.

   Exhibit C, pp. 118-121. Because the vote to remove him was void,

   Mr. Collins remains the lawful City Attorney for the City of Port


                              23
         Isabel, and has the authority to represent the City of Port Isabel.

 In addition to the above, any action taken by Appellee Commissioners

   Zamora and Cantu should be considered void, and no effect should be

   given to their votes, because the injunction, which is the subject of this

   appeal, allowing them to purport to sit as Commissioners and vote in the

   first place, was improper. By attempting to use their improperly granted

   authority to terminate the appeal challenging said authority, Appellees are

   attempting frustrate the judicial process and circumvent the authority and

   jurisdiction of this Court. This subverts the very foundations of justice for

   a corrupt purpose.

C. Appellant’s proposed findings of fact and conclusions of law are

  supported by the evidence and should have been adopted by the trial court.

        As addressed in more detail in Appellant’s Findings of Fact and

  Conclusions of Law attached hereto as Exhibit B, the City of Port Isabel

  filed proposed findings of fact and conclusions of law which accurately

  concluded that:

   Humberto Silva is not a party to this lawsuit, and, therefore, did not have

     standing pursuant to Rule 12 T.R.C.P..

   The votes that purported to remove Robert Collins as City Attorney and

     appoint Humberto Silva as Counsel in this suit are void due to the self-


                                     24
   interest of the commissioners who brought the motion, the substantial

   self interest these commissioners have in this proceeding pursuant to

   Tex. Loc. Gov. Code 171.004, and the fact that the motions would not

   have been considered or passed without the actions of the self-interested

   commissioners, Appellees.

 Appellees not only purported to replace opposing counsel in this appeal

   with an attorney of their choosing, but they also purported to appoint

   their attorney, Mr. Hinojosa, as the new City Attorney. Conflicts of

   interest of all involved in those dealings could be no more obvious.

 Appellee/Plaintiffs plainly and openly used a temporary injunction meant

   to maintain the status quo, and instead used the power of that appealed

   order to accomplish their subsequent void and illegal actions and votes to

   wrongfully claim to control both sides of this lawsuit, including their

   stated intent to dismiss the City’s Appeal of the temporary injunction.

 Due to the votes being void for personal conflicts of Appellees, Robert

   Collins is City Attorney for Port Isabel and the only attorney of record

   for Port Isabel in this lawsuit.

 At the hearing, Mr. Hockema, the interim City Manager, testified that

   there is no representation agreement authorizing Mr. Silva to represent

   the City of Port Isabel. Exhibit C, p. 79.

                                      25
 Attached as Exhibit F, and made a part of the record the trial court

   considered as reflected by the transcript of the hearing, are Affidavits by

   City Manager, Ed Meza; Defendant (Appellant) Maria Garza; and

   Defendant Appellant Joe Vega stating that it is their intention and desire

   to pursue the appeal they filed and for the City to be represented in that

   matter by Robert Collins. Exhibit F. Despite Appellants’ intention and

   desire, Mr. Hockema admitted that Mr. Silva, who was appointed in a

   motion by Appellees to represent Appellants, was specifically instructed

   to terminate this appeal. Exhibit C, p. 79.

 Appellee's Cantu and Zamora took actions to remove Appellants’ counsel

   Mr. Collins from defending the lawsuit that they filed, but not from all

   City of Port Isabel representation, demonstrating their intention to only

   act when it fit their personal interests and benefitted them personally. The

   City Secretary, Susana Alcocer, testified that no action has been taken to

   remove Robert Collins as counsel representing Port Isabel in other

   litigation. Exhibit C, p. 24.

      o She testified that:

      Q.    There has not been any action by the City of Port Isabel
      or anybody out there claiming that I'm not representing the city
      as the city attorney in that lawsuit involving the City of
      Brownsville has there?

      A.     No.

                                   26
o At the hearing, she described the specific acts of conflicts of

   interest of Appellees in this case when she testified that: Cantu, a

   Plaintiff (Appellee), in this lawsuit, made the motion to remove

   Defendant (Appellant) City of Port Isabel’s counsel in this case at

   the May 19, 2015 meeting; Exhibit C, pp. 27-28; and Appellee

   Zamora seconded, and both Appellees Cantu and Zamora voted, to

   retroactively remove Defendants Garza, Torres, and Vega’s

   counsel in this lawsuit. Id. at pp. 37-38. Those are the improper

   actions made the basis of the Motion to Show Authority. Rule 1,

   T.R.C.P. would dictate that the wrongful actions of Appellees not

   be supported by a Rule 12 motion as the rules should be applied to

   do justice.

o The City Secretary also testified that Appellees Cantu and Zamora

   repeatedly moved, seconded, and voted on items related to them

   personally, and this lawsuit. Exhibit C, 43-45; Exhibit D (Meeting

   minute showing Cantu and Zamora moving, seconding, and voting

   on issues related to their personal business and litigation they filed

   and are party to in their personal capacities). Appellee Cantu also

   placed the agenda item, seconded, and voted to rescind the finding

   that he violated the City Charter, Exhibit C, pp. 34, and that


                            27
         without Cantu’s seconding, the vote would never have happened.

         Exhibit C, p. 35; Exhibit D.

      o Before serving Port Isabel as Assistant City Attorney, Dennis

         Houfek served as a Special Agent of the Federal Bureau of

         Investigation, and has worked in both the public and private sector.

         Exhibit C, 117-118. At the hearing, Mr. Houfek explained that

         Appellees Cantu and Zamora had a personal interest in the actions

         related to this lawsuit and to remove the City Attorney and City

         Manager so they could accomplish dismissal of this appeal and

         victory in their litigation. He further testified that Appellees Cantu

         and Zamora had a conflict and should not have moved, seconded

         or voted on the issues related to themselves personally, and this

         lawsuit, as described herein. Exhibit C, 121.

                              CONCLUSION

        Mr. Silva did not have standing to bring a motion to show authority.

Therefore, there was no jurisdiction for the trial court to consider or grant

Mr. Silva's Motion, and it should be rendered as denied, and the same

Motion filed by Mr. Silva in this Court should likewise be denied. The

Findings of Fact and Conclusions of Law proposed by Mr. Silva and

adopted by the trial court do not accurately reflect the facts as demonstrated


                                  28
      by the record and applicable law, and the order adopting the Findings and

      Conclusions should be reversed and disregarded. The facts are clear from the

      record: Robert Collins is the proper attorney of record for the City of Port

      Isabel, and no legitimate or lawful action has been taken to the contrary. The

      City of Port Isabel’s filed and proposed findings of fact and conclusions of

      law accurately reflect the facts and applicable law in this case.

                                     PRAYER

      Appellant City of Port Isabel, and its undersigned counsel, pray that for all

of the foregoing reasons, this Court will reverse the trial court’s order on Silva’s

Motion to Show Authority, and deny that Motion in this Court as well, allowing

this Appeal to proceed and so that justice may be done.

                                              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

                                         29
                                      PORT ISABEL
                         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 11th day of
December, 2015:

       Humberto Silva
       Law Office of Humberto Silva
       P.O. Box 2091
       Donna, Texas 78537
       Tel. 956-463-4896
       Hsilvalaw1993@yahoo.com

       Ricardo L. Salinas
       Law Office of Salinas Flores
       2011 North Conway Avenue
       Mission, TX 78572
       Fax: 956-580-9688
       rsalinaslaw@yahoo.com

       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



                                        30
