                                                                                     ACCEPTED
                                                                                 13-15-00237-CV
                                                                 THIRTEENTH COURT OF APPEALS
                                                                        CORPUS CHRISTI, TEXAS
                                                                             7/3/2015 4:43:03 PM
                                                                          CECILE FOY GSANGER
                                                                                          CLERK

                          NO. 13-15-00237-CV

                                                   FILED IN
                                            13th COURT OF APPEALS
                    IN THE 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

                     ORAL ARGUMENT REQUESTED
                      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: 1-956-544-1335
                                          ghinojosa@ghinojosalaw.net




                                     ii
                                          TABLE OF CONTENTS

Identity of Parties and Counsel ............................................................................... ii

Index of Authorities ................................................................................................ v

Statement of the Case............................................................................................. vi

Statement of Oral Argument .................................................................................. vi

Issue Presented: ...................................................................................................... vi

         The Temporary Injunction was granted in violation of Texas law,
         because Appellees did not present evidence to support their
         pleadings of a probable right to recovery.

Statement of Facts ................................................................................................... 1

Summary of Arguments .......................................................................................... 2

Argument and Authorities....................................................................................... 3

I.       Supporting Law ............................................................................................ 3

II.      The Temporary Injunction was granted in violation of Texas law,
         because Appellees did not present evidence to support their pleadings of
         a probable right to recovery. ......................................................................... 4

         A.        Appellees Cantu and Zamora testified that they conducted
                   business with the City and, therefore, supported the
                   Commission’s finding that they were in violation of the City
                   Charter, Section 2.02 .......................................................................... 5

         B.        Appellees Cantu and Zamora presented evidence that supported
                   the validity of the hearing and voting procedure, including their
                   own use of the voting procedure at the same hearing ........................ 6

         C.        All the other evidence presented by Appellees was not relevant to
                   their probable right to recovery addressing instead the irrelevant

                                                            iii
                   possibility that another member conducted business with the city
                   as well ................................................................................................. 7

Conclusion and Prayer ............................................................................................ 8

Certificate of Service ............................................................................................ 10

Certificate of Compliance ..................................................................................... 10

Certification .......................................................................................................... 11




                                                              iv
                                         INDEX OF AUTHORITIES

CASES                                                                                                           PAGE(S)

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) ....................... 4, 5, 8

EMS USA, Inc. v. Shary, 309 S.W.3d 653, 657 (Tex. App. Houston 14th Dist.
2010) ....................................................................................................................... 4

IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 197 (Tex. App.--Fort
Worth 2005, no pet.) ............................................................................................... 4

Wheel Factory v. Sma Props., L.P., 2002 Tex. App. LEXIS 4318 (Tex. App. Dallas
June 18, 2002) ......................................................................................................... 4


STATUTES AND CONSTITUTIONS                                                                                     PAGE(S)

Port Isabel City Charter, Section 2.02 ........................................................ 1, 2, 4, 5

Tex. R. App. P. 6.3.................................................................................................... 10

Tex. R. App. P. 9.4(e) ............................................................................................... 11

Tex. R. App. P. 9.4(i) ................................................................................................ 11

Tex. R. App. P. 9.4(i)(1) ........................................................................................... 11

Tex. R. App. P. 9.5 (b)(d) and (e) ............................................................................. 10




                                                               v
                         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

      The Temporary Injunction was granted in violation of Texas law, because

Appellees did not present evidence to support their pleadings of a probable right to

recovery.




                                         vi
                               STATEMENT OF FACTS

      During a properly-noticed public meeting, and pursuant to a provision of

the Port Isabel City Charter, the City Commission, including Appellees, voted on

the potential violation of City Charter, Section 2.02, of three of the

Commissioners: Appellant Torres, Appellee Cantu, and Appellee Zamora. During

the meeting, by a duly-recorded majority vote, Appellees were removed from their

positions on the City Commission due to their business dealing with the City in

violation of Section 2.02. Port Isabel City Charter Section 2.02 provides for the

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. CR4. Appellees contend by their petition that 1) they were erroneously

removed; or 2) in the alternative, that the City Charter provision is

unconstitutional. CR4. Appellees sought a temporary injunction requiring

reinstatement of Appellees as voting members of the Port Isabel City

Commission. A hearing was held on a Plea to Jurisdiction filed by Appellants and

Appellee’s Motion for Temporary Injunction on April 24, 2015, during which

Appellees presented three witnesses. RR:1. At the hearing, Appellees testified and

                                          1
confirmed their own business dealings with the City and their participation in the

vote on whether or remove another commissioner for the same offense at the same

meeting. The court verbally granted the temporary injunction at the hearing. RR:1,

p. 121, ln. 5. The court did not sign a Temporary Injunction order at that time and

no bond was ever filed. Appellants filed an appeal on the denial of their temporary

injunction and notice of stay due to a separate appeal of the denial of the City’s

Plea to Jurisdiction, on May 12, 2015. CR102. That day, after Notice of Stay, the

Court appears to have signed an order granting the temporary injunction. To this

day, no bond has been filed.

                        SUMMARY OF ARGUMENTS

I.    The Temporary Injunction was granted in violation of Texas law,
      because Appellees did not present evidence to support their pleadings of
      a probable right to recovery.

      A.    Appellees Cantu and Zamora testified that they conducted
            business with the City and, therefore, supported the
            Commission’s finding that they were in violation of the City
            Charter, Section 2.02.

            At the Hearing on the Temporary Injunction, Appellees confirmed the
            facts that were the basis of the City Commission finding them in
            violation of the City Charter, Section 2.02. Appellants confirmed that
            they had automotive establishments and that, through those
            establishments, they conducted business with the City during their
            time as City Commissioners. RR:1 p. 94, ln 1-3, p.86, ln. 16-25; RR:1
            p.86, ln. 8-22, p. 107, ln. 11-22.




                                         2
       B.    Appellees Cantu and Zamora presented evidence that supported
             the validity of the hearing and voting procedure, including their
             own use of the voting procedure at the same hearing.

             Appellees presented evidence that they placed on the agenda, and
             actively voted, on another Commissioner’s potential business dealings
             with the City and possible violation of the same City Charter
             provision at the same meeting where their business dealings were
             raised. Appellees confirmed that neither they, nor anyone else, raised
             any concerns about the Commission’s ability to vote on
             Commission’s business dealings and possible violations of the City
             Charter or the Commission’s ability to vote on the issues at that
             meeting until they were in litigation.

       C.    All the other evidence presented by Appellees was not relevant to
             their probable right to recovery addressing instead the irrelevant
             possibility that another member conducted business with the City
             as well.

             The other evidence supplied by Appellees talked about the business
             another commissioner may have with the City, and the opinion of a
             local reporter that it is a good idea the City Charter anti-corruption
             provisions to be enforced.

             Appellees did not provide any evidence that the City Charter was
             unconstitutional or that they had not violated the City Charter, and
             therefore were improperly removed. Appellees did not provide any
             evidence to establish their probable right to recovery, and therefore
             did not meet the legal requirements to obtain a temporary injunction.

                      ARGUMENT AND AUTHORITIES

I.     Supporting Law

       To obtain a temporary injunction, the applicant must 1) plead a cause of

 action against the defendant that shows a probable right to recover on that cause of

 action; and 2) show a probable, imminent, and irreparable injury in the interim.

                                          3
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); EMS USA, Inc. v.

Shary, 309 S.W.3d 653, 657 (Tex. App. Houston 14th Dist. 2010). The applicant

must then present evidence that establishes the cause of action and supports the

pleadings. Id.; IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 197

(Tex. App.--Fort Worth 2005, no pet.); Wheel Factory v. Sma Props., L.P., 2002

Tex. App. LEXIS 4318 (Tex. App. Dallas June 18, 2002).

II.      The Temporary Injunction was granted in violation of Texas law,

         because Appellees did not present evidence to support their

         pleadings of a probable right to recovery.

      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

      To meet the requirements for obtaining a temporary injunction, Appellees

had the burden to present evidence at the hearing on the Temporary Injunction that

established the elements of their cause of action and proved a probable right to

                                        4
recovery. Butnaru, 84 S.W.3d at 204. However, Appellees did not present evidence

showing any probable right of recovery and, therefore, failed to meet their burden.

As a result, the Temporary Injunction Order should be vacated and reversed.

      The only testimony Appellees presented at the hearing was from three

witnesses: Appellee Cantu, Appellee Zamora, and a witness named Manuel de la

Rosa. None of those witnesses presented evidence to support the assertion that

Appellees were not in violation of the City Charter and that they were improperly

removed.

      A.     Appellees Cantu and Zamora testified that they conducted business

with the City and, therefore, supported the Commission’s finding that they were in

violation of the City Charter, Section 2.02:

            Cantu admitted that both he and Appellant Zamora conducted

             business with the City of Port Isabel while they were commissioners.

             RR:1 p. 94, ln 1-3, p.86, ln. 16-25.

            Zamora confirmed Cantu’s testimony that Zamora conducted business

             with the City. RR:1, p. 107, ln. 11-17, p. 91, 14-17.

            Cantu and Zamora described the nature of their business dealings and

             the involvement with the City that resulted in them making money

             from business transactions with the City while claiming a position as

             City Commissioner. RR:1 p.86, ln. 8-22, p. 107, ln. 11-22.
                                          5
      B.     Appellees Cantu and Zamora presented evidence that supported the

validity of the hearing and voting procedure, including their own use of the voting

procedure at the same hearing.

      Appellees attempted unsuccessfully to have a different City Commissioner

removed from office on the exact same alleged grounds, using the same voting

procedure, at the same hearing. RR:1, p. 112, ln. 4-10. After their effort failed, the

Commission proceeded to entertain and pass a Motion by majority vote to enforce

the City Charter mandate and remove Appellees from office for their admitted

business transactions with and profits from doing business with the City:

            Cantu admitted that Appellees had proper notice of the public meeting

             at issue. RR:1 p. 8, ln. 11-16.

            Cantu admitted he and Zamora both had an opportunity to be heard

             and defend the allegations that they had done business with the City at

             the meeting, as they both attended the meeting. RR:1 p. 79, p.2-7.

            Cantu admitted that the week’s regularly scheduled Tuesday meeting

             was simply moved to Monday for convenience. RR:1 p.78, ln. 20-24.

            Zamora confirmed that no one raised any issues about the City

             Commission’s ability to vote on and decide the issue of their

             disqualification to hold office and resulting removal, or to decide that

             issue at that duly-noticed public meeting. RR:1 p. 112, ln. 4-10.
                                          6
           Cantu and Zamora admitted that they placed another Commissioner’s

            possible disqualification and removal due to alleged business dealings

            with the City on the agenda for the same meeting, that they pursued

            that item, that it was considered, voted on, and rejected by the City

            Commission at the very same meeting. RR:1 P.85, ln. 1-5, RR:1

            p.105, ln. 10-16.

      C.    All the other evidence presented by Appellees was not relevant to

their probable right to recovery addressing instead the irrelevant possibility that

another member conducted business with the city as well:

           Cantu and Zamora testified that Appellant Torres also did business

            with the City. RR:1, p. 94, ln. 1-3. However, that testimony is not

            relevant to their probable right to recovery and whether or not

            Appellee Cantu and Appellee Zamora violated the City Charter and

            were properly removed. In his testimony, Cantu confirmed that he set

            a Commission evaluation of that business on the agenda for the same

            meeting, during which the Commission voted on Cantu’s business

            involvement. RR:1 P.85, ln. 1-5. The commission evaluated whether

            or not Appellant Torres was in violation of the Charter, voted and

            determined that he should not be removed. RR:1 p. 111, ln.25-p.112,

            ln. 2.
                                        7
            The other witness presented by Appellees, Mr. de la Rosa, testified

             that he was told Commissioners could do business with the City under

             certain conditions and confirmed that he thought enforcing the law

             prohibiting Commissioners from conducting business with the City

             was a good idea. RR:1, p. 115, ln. 1-13, p. 117, ln. 6-19. Mr. de la

             Rosa’s understanding of the law and opinions about how the law

             should be applied is not relevant to Appellees’ right to recovery, and

             serves as no evidence to support any Temporary Injunction.

       The only other evidence provided by Appellees presented no additional

testimony in support of their pleadings and to establish their probable right to

recovery. RR:1 p. 121, ln. 1-2.

                         CONCLUSION AND PRAYER

       Appellee’s filed suit claiming that their removal from the City Commission

for violations of the City Charter was improper, and they sought and obtained,

without evidence, a Temporary Injunction Order. However, Appellees failed to

meet their burden to support that pleading with sufficient evidence to prove a

violation of law and probable right to recovery. Without this essential element, the

temporary injunction was issued in violation of Texas law. Butnaru, 84 S.W.3d at

204.



                                         8
      Therefore Appellant City of Port Isabel prays this court will reverse the

order granting Appellee’s Motion for Temporary Injunction.

                                           Respectfully submitted,



                                           ___________________
                                           Robert L. Collins
                                           Texas Bar No. 04618100
                                           Audrey Guthrie
                                           Texas Bar No. 24083116
                                           P.O. Box 7726
                                           Houston, Texas 77270-7726
                                           (713) 467-8884
                                           (713) 467-8883 Facsimile
                                           houstonlaw2@aol.com
                                           ATTORNEYS FOR CITY OF
                                           PORT ISABEL




                                       9
                         CERTIFICATE OF SERVICE

       As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that I have served this document on all other parties, on this 26th day of
June, 2015 and July 3, 2015:

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




                                        10
                      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
1,859 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).




                                      ____________________________
                                           Robert L. Collins




                                        11
                            NO. 13-15-00237-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       Temporary Injunction Order, signed May 12, 2015
TAB A
