                                                                                  ACCEPTED
                                                                              13-15-00237-CV
                                                              THIRTEENTH COURT OF APPEALS
                                                                     CORPUS CHRISTI, TEXAS
                                                                          7/1/2015 9:29:56 AM
                                                                       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 OF7/1/2015
                                          TEXAS 9:29:56 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
  In the 444th Judicial District Court of Cameron County, Texas


             APPELLANTS MARIA DE JESUS
            GARZA AND JOE E. VEGA’S BRIEF


                                    Michael Cowen
                                    Texas Bar No. 00795306
                                    The Cowen Law Group
                                    62 E. Price Road
                                    Brownsville, Texas 78521
                                    Telephone (956) 541-4981
                                    Facsimile (956) 504-3674
                                    E-Mail: Michael@CowenLaw.com
                   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                 Gilberto Hinojosa
Martin C. Cantu                       622 East St. Charles St.
                                      Brownsville, Texas 78520
                                      956-544-4218
                                      Fax: 956-544-1335
                                      ghinojosa@ghinojosalaw.net



                                  2
                           TABLE OF CONTENTS

Identity of Parties and Counsel                                     2
Index of Authorities                                                 4
Statement of the Case                                                6
Statement Regarding Oral Argument                                    6
Issues Presented                                                     7
Statement of Facts                                                   8
Summary of Argument                                                 11
Arguments and Authorities                                           12
     I. The Trial Court Had No Legal Authority to Issue a           12
     Temporary Injunction Returning Cantu and Zamora to Office
     During the Pendency of this Case
     II. The Trial Court Erred In Basing the Temporary Injunction   13
     on Grounds Not Pled by Appellees
     III. The Trial Court Erred in Finding that Cantu and Zamora    15
     Were Removed in Violation of the City Charter
        A. The City Charter Provides Two Separate Ways that a       16
        Commissioner Can Be Removed from Office
        B. The City Commission Had the Authority to Remove          18
        Cantu and Zamora at the April 13, 2015 Meeting
     IV. The Trial Court Erred in Finding the Cantu and Zamora      20
     Were Deprived of Due Process
     V. Section 2.02 of the City Charter is Constitutional          21
     VI. The City Commission Can Remove a Commissioner              22
     Without Resorting to Quo Warranto


                                       3
     VII. The Temporary Injunction is Overly Broad because It      23
     Permits Appellees to Vote on Matters Regarding this Lawsuit
Conclusion and Prayer                                              24
Certificate of Service                                             25
Certificate of Compliance                                          24
Appendix                                                           26




                                      4
                         INDEX OF AUTHORITIES

Cases

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)            23, 24
Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 525 (Tex. 1981)           17
City of Alamo v. Garcia, 960 S.W.2d 221 (Tex. App.–Corpus        11, 12, 13,
Christi 1997)                                                    15, 21, 23
City of Laredo v. Villarreal, 81 S.W.3d 865 (Tex. App.–San               15
Antonio 2002)
EMS USA, Inc. v. Shary, 309 S.W.3d 653 (Tex. App.–Houston                13
[14th Dist.] 2010, no pet.)
Jones v. City of Arcola, 1999 Westlaw 546965 (Tex. App.–Austin           15
1999)
Hamman v. Hayes, 391 S.W.2d 73 (Tex. App.–Beaumont 1965,                 23
writ refused)
Huntress v. McGrath, 946 S.W.2d 480 (Tex. App.–Ft. Worth 1997,           15
orig. proceeding)
Riggins v. City of Waco, 93 S.W. 426 (Tex. 1906)                     15, 22

Statute and Charter Provision

Tex. Local Gov’t § 171.007                                               22
Port Isabel City Charter, Section 2.02                              passim

Attorney General Opinion

Tex. Atty. Gen. Opin. GA-0068 (2003)                                     22




                                         5
                        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.




                                        6
                             ISSUES PRESENTED

1.   Given this Court’s prior holding a city councilman removed pursuant to a city
     charter provision does not have the right to a temporary injunction while he
     pursues judicial review of the removal, did the trial court err in granting such
     an injunction?

2.   Can a trial court grant a temporary injunction based on grounds not plead by
     movants as a basis for injunctive relief?

3.   Did the City of Port Isabel properly remove appellees from their positions as
     city commissioners when appellees admittedly violated the city charter by
     doing business with the city while serving as commissioners?

4.   Did appellees receive due process when they had notice, an opportunity to
     speak and be heard, and actually attended and participated in the meeting in
     which they were removed?

5.   Can a home rule city require a higher ethical standard than the minimum
     required by state law?

6.   Can a home rule city enforce its own charter without having to depend on a
     district attorney or the attorney general to file a quo warranto action?

7.   Can plaintiffs use a temporary injunction to preclude appellate review or an
     effective defense by using the injunction to appoint their attorney as the
     defendant’s city attorney, to replace defendant’s attorney with an attorney
     chosen by plaintiffs and their attorney, and to vote to abandon appeals and to
     prevent the city from defending the lawsuit plaintiffs filed against it?

8.   How can Appellees claim that the City Commission acted arbitrarily and
     illegally in removing them under Section 2.02 when they themselves attempted
     to remove another commissioner under Section 2.02 at the same meeting?




                                         7
                             STATEMENT OF FACTS

      Section 2.02 of the Port Isabel City Charter prohibits City Commissioner’s

from doing business with the City. RR 136-137, 147. Section 2.02 further provides

that any City Commissioner who does business with the city vacates his or her

position. Id. Appellees Martin Cantu and Juan Jose Zamora have admitted doing

business with the City of Port Isabel while serving as City Commissioners. RR 84,

86-87, 108. The issue in this appeal is whether the City of Port Isabel can enforce the

anti-corruption provisions of its own charter by removing City Commissioners who

do business with the city.

      Martin Cantu and Juan Jose Zamora were Port Isabel City Commissioners.

While serving as City Commissioners, they both did business with the city through

their respective auto repair businesses. RR 84, 86-87, 108. Both Cantu and Zamora

testified under oath that they did business with the city while serving as

commissioners, and there was no factual dispute as to whether they violated Section

2.02 of the City Charter.

      A Port Isabel City Commission meeting was scheduled for April 13, 2015. RR

126-129, 175-178. Prior to that meeting, Cantu placed an item on the agenda calling

for a vote to remove Torres from office for allegedly violating Section 2.02 of the

City Charter. RR 85, 127. Torres subsequently placed an item on the agenda for the

                                           8
same meeting to remove Cantu and Zamora for violating the same Section of the

Charter by doing business with the City. RR 177.

       Both Cantu and Zamora had notice of the April 13, 2015 meeting, and of the

fact that an item was placed on the agenda calling for their removal. RR 77-78, 112,

126-129, 175-178. The agenda stated that proposed removal was based on Cantu and

Zamora’s violation of Section 2.02’s prohibition of doing business with the city. RR

177.

       Cantu and Zamora both attended the meeting, and had the opportunity to speak

and be heard. RR 78, 112. At the meeting, Zamora moved to remove Torres from

office pursuant to Section 2.02. RR 112. The commission voted 3-2 against

Zamora’s motion. The commission then determined that Cantu and Zamora had

violated Section 2.02 by doing business with the city, and voted to remove them from

office. CR 93, ¶ 12.

       Cantu and Zamora filed a lawsuit seeking injunctive and declaratory relief to

undo their removal from office. On April 24, 2015, the trial court held an evidentiary

hearing, at which Cantu and Zamora both testified that they had done business with

the city while serving as commissioners. RR 84, 86-87, 108. Despite this confession,

the trial court granted a temporary injunction ordering that they be returned to the

City Commission. CR 103-105.

                                          9
      Cantu and Zamora, together with a newly-elected commissioner who replaced

Torres, have since used the temporary injunction to try to preclude any appellate

review in this case. Despite being parties to this lawsuit, they have voted on matters

related to this lawsuit, including hiring their attorney as the new city attorney, firing

the former city attorney, and voting to stop any appeals of the lawsuit they filed.

Based on appellees’ use of the injunction, the city commission is now advised on

matters related to this lawsuit by the same attorney who represented Cantu and

Zamora in the trial court.




                                           10
                          SUMMARY OF ARGUMENT

      Port Isabel’s City Charter prohibits city commissioners from doing business

with the City, and provides that commissioners who violate this provision forfeit their

office.   Appellees admittedly did business with the city while serving as

commissioners, and were properly removed from their office pursuant to the City

Charter. The trial court erred in granting a temporary injunction returning them to

office.

      Both this Court and the Texas Supreme Court have held that a city commission

has the authority to remove a commissioner. Judicial review of such removals is

limited to two issues: (1) whether the commission acted arbitrarily; and (2) whether

appellees received due process. The undisputed evidence shows that the city

commission did not act arbitrarily in removing appellees because appellees admittedly

violated the City Charter’s prohibition against doing business with the city.

Appellees received due process because they had notice and an opportunity to be

heard prior to the vote on their removal

      Moreover, this Court has previously held that a city commissioner judicially

challenging his removal has no right a temporary injunction maintaining him in

office. City of Alamo v. Garcia, 960 S.W.2d 221, 223-24 (Tex. App.–Corpus Christi

1997).

                                           11
      Finally, this Court should not permit appellees to usurp the Court’s appellate

jurisdiction by allowing appellees to use the temporary injunction to take over

appellant’s defense and abandon this appeal. Temporary injunctions should only be

used to preserve the status quo, and not to create final, unappealable orders.

Appellees are abusing the process by using the temporary injunction to hire their

attorney as the new city attorney, and to vote to force appellants to discontinue this

appeal.



                                   ARGUMENT

I.    The Trial Court Had No Legal Authority to Issue a Temporary Injunction
      Returning Cantu and Zamora to Office During the Pendency of this Case

      (Issue No. 1)

      The trial court did not have the legal authority to issue a temporary injunction

ordering that Cantu and Zamora return to their offices during the pendency of this

lawsuit. The City Commission, pursuant to the City Charter, has the power to remove

commissioners, and Texas law only grants the courts the power to review for abuse

of discretion and lack of due process. Moreover, “the right to a review by a judicial

body does not entitle appellees to a temporary injunction, the effect of which is the

perpetuate them in office pending that review.” City of Alamo v. Garcia, 960 S.W.2d



                                         12
221, 223-24 (Tex. App.–Corpus Christi 1997). An injunction is only appropriate

when the city charter itself is unconstitutional so that it does not constitute “lawful

authority” to remove someone from office Id. at 226-27.

      In the temporary injunction order, the trial court did not find that the city

charter itself was unconstitutional, or that the charter did not provide the city

commission with the lawful authority to remove a commissioner. CR 103-105.

Rather, the trial court merely found that the charter was not followed, and that there

was a lack of due process.1 CR 104. Because the trial court did not find that the

charter was unconstitutional or otherwise did not constitute a lawful authority, it had

no power to issue a temporary injunction. City of Alamo v. Garcia, 960 S.W.2d at

223-224.



II.   The Trial Court Erred In Basing the Temporary Injunction on Grounds
      Not Pled by Appellees

      (Issue No. 2)

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

against the defendant and show both a probable right to recover on that cause of

action. EMS USA, Inc. v. Shary, 309 S.W.3d 653, 657 (Tex. App.—Houston [14th



      1
          Appellants’ disagree with those findings, and have challenged them in this Brief.

                                                 13
Dist.] 2010, no pet.. To show a probable right of recovery, the applicant must plead

and present evidence to sustain the pleaded cause of action. Id.

       In their Third Amended Petition, Appellees only pled one basis for having a

probable right to recovery in support of their request for a temporary injunction:

       20. It is probable that Plaintiff will recover from Defendants after a trial
       on the merits because the law is clear that only a successful quo
       warranto proceeding brought by the appropriate authority, which does
       not include Defendants, can remove Plaintiffs from their respective
       offices. See Tex. Civ. Prac. Rem. Code Section 66 et. seq; Hamman v
       Hayes, 391 S.W. 2d 73, 74 (Tex. App. Beaumont 1965, writ refused).

CR 98. However, the trial court, in granting the temporary injunction, did not find

that appellees could only be removed by a quo warranto proceeding. CR 103-104.

Rather, the trial court found a probable right to recover based on two grounds not

pled as bases for injunctive relief: lack of compliance with the charter and lack of due

process. CR 104. Because appellees failed to prove the cause of action for injunctive

relief they actually pled,2 the temporary injunction should be dissolved.




       2
        Appellees did seek declaratory (but not injunctive) relief based on alleged non-compliance
with the City Charter. RR 96. Appellees did not plead a lack of due process. RR 90-100.

                                               14
III.   The Trial Court Erred in Finding that Cantu and Zamora Were Removed
       in Violation of the City Charter

       (Issue No. 3)

       The Texas legislature vested the power to remove a mayor or commissioner in

the city council, and no power of review is given to the courts. Jones v. City of

Arcola, 1999 Westlaw 546965 (Tex. App.—Austin 1999); see Huntress v. McGrath,

946 S.W.2d 480, 485 (Tex. App.—Ft Worth 1997, orig. proceeding); Riggins v. City

of Waco, 93 S.W. 426, 427 (Tex. 1906). As this Court stated in City of Alamo v.

Garcia, “Texas courts, in recognition of the autonomy and separate powers of

municipal legislatures, will not interfere to protect a person from removal from office

by a man or body of men to whom to power to remove is given by law.” 960 S.W.2d

at 223.   Judicial review is limited to whether the city commission committed an

abuse of discretion or violated due process. Id. “ The most that could be asserted in

favor of the power of the courts is that they may inquire whether or not charges were

duly preferred, a hearing had, and evidence adduced tending to sustain them.”

Riggins, 93 S.W. at 32-33.

       A city’s construction of it’s own charter or ordinance is entitled to serious

consideration as long as it is reasonable. City of Laredo v. Villarreal, 81 S.W.3d 865

(Tex. App.—San Antonio 2002). Moreover, because the trial court’s review of the



                                          15
removal was limited to whether the city commission acted arbitrarily, the city

commission’s interpretation of the City’s charter should be accepted unless there was

no basis for that interpretation.

      Appellees plead two reasons why they claimed the City Charter was not

followed: (1) they argued that the City Commission did not have the power to remove

a commissioner unless that commissioner was first convicted of a crime; (2) they

argued that the City Commission could not remove a commissioner at a “special

meeting.” Both of these arguments fail.



      A.     The City Charter Provides Two Separate Ways that a
             Commissioner Can Be Removed from Office

      The Port Isabel City Charter authorized the City Commission to remove Cantu

and Zamora at a commission meeting.

      Section 2.02 of the City Charter provides, “The Mayor, Commissioners, and

other officers and employees . . . shall not be interested in the profits or emoluments

or any contract, job, work, or service for the City of Port Isabel. . . .” RR 136.

Section 2.02 then provides two mechanisms by which an elected official who violated

the charter can be removed from office. First, the City Commission can vote to

remove that person for violating the charter. Specifically, Section 2.02 provides, “If



                                          16
the Mayor or any City Commissioner fails to maintain, the foregoing qualifications

. . . the City Commission shall at its next regularly scheduled meeting declare a

vacancy to exist and shall fill said vacancy as set forth in Section 2.03 of this

Charter.” RR 137.

      A second method by which a person can be removed is if there is a criminal

conviction. Section 2.02 provides, “Any violation, of this Section shall be a

misdemeanor, and on conviction for such violation such office or employment shall

be forfeited.” RR 137.

      Appellees argue that the second method is the exclusive method of removing

a commissioner. However, this interpretation would render the provision requiring

the City Commission to declare a vacancy at the next regularly scheduled meeting and

fill the vacancy meaningless. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d

535, 540 (Tex.1981) (“It is a rule of statutory construction that every word of a statute

must be presumed to have been used for a purpose”). Moreover, the provision

providing that a mayor or city commissioner may be removed at a meeting is limited

to the mayor and the commissioners. In contrast, the criminal conviction provision

applied to all officers and employees as well. Therefore, the Port Isabel City

Commission did not act in an arbitrary manner when it interpreted Section 2.02 as

permitting a commissioner to be removed at a city council meeting.

                                           17
      Further proof that the City Commission’s interpretation of the charter as

authorizing the removal was not “arbitrary” is the fact that Cantu and Zamora invoked

the same procedure at the same meeting in an attempt to remove Torres. RR 85,

104-105, 111-112. Appellees interpreted the charter in the same way as appellants

until they ended up on the losing side of the removal issue. Because a reasonable city

commission could have interpreted Section 2.02 of the charter as giving the

commission the power to remove commissioners for violating Section 2.02 at a

regularly-scheduled “special” meeting, the removal was neither arbitrary or

capricious, and should be respected by the courts.

      There is also no question that the evidence supports the City Council’s findings

that Cantu and Zamora violated the charter by doing business with the city while

serving as commissioners. Cantu and Zamora both testified that they did business

with city while commissioners. RR 84, 86-87, 108.



      B.     The City Commission Had the Authority to Remove Cantu and
             Zamora at the April 13, 2015 Meeting

      The City Commission did not act arbitrarily in treating the April13, 2015

meeting as a “regularly scheduled” meeting at which it could remove Cantu and

Zamora under Section 2.02. The Port Isabel City Commission normally meets on



                                         18
Tuesdays, but met on April 13, 2015 (the Monday before the previously-scheduled

Tuesday meeting) to accommodate all of the commissioners’ schedules. The meeting

was not called specifically to call for the removal of Cantu and Zamora. In fact, it

was already scheduled for Monday, April 13, 2015 before the agenda item to remove

Cantu and Zamora was added. See RR 126-128 (draft agenda, faxed at 4:49 on April

10, showing that the meeting was scheduled for April 13; the item to remove Cantu

and Zamora was not on the agenda); RR 175-178 (agenda for April 13, 2015 meeting,

including item to remove Cantu and Zamora, posted at 6:20 p.m. on April 10).

      Section 2.02 does not state that a commissioner can only be removed at a

“Regular Meeting” or that a commissioner cannot be removed at a “Special

Meetings.” A reasonable interpretation of the term “regularly scheduled meeting” is

that the meeting has to be scheduled in the normal order of business, and that the

commission cannot call a new meeting just for the purpose of removing

commissioners. Given that Cantu and Zamora placed on item to remove Torres

pursuant to Section 2.02 at the April 13 meeting, and that they did not object to the

consideration oft he removal items at the April 13 meeting on the ground that it was

a “Special Meeting,” it is evident that Cantu and Zamora interpreted the April 13,

2015 meeting as a “regularly scheduled” meeting at which a commissioner could be

removed. It is only after they failed to remove Torres, and they themselves were

                                         19
removed that they complained about the process they themselves first invoked.

      Moreover, Cantu and Zamora cannot show any harm from the fact that the

meeting was held on April 13 rather than April 14. They both had notice of the

meeting, and of the agenda item regarding their proposed removal. They both had an

opportunity to speak and be heard. They both attended and spoke. And most

importantly, they were both admittedly guilty of violating the charter by doing

business with the city, and they would have been as guilty on Tuesday as they were

on Monday.



IV.   The Trial Court Erred in Finding the Cantu and Zamora Were Deprived
      of Due Process

      (Issue No. 4)

      The trial court’s second ground for finding a probable fight to recover was that

appellees due process rights under the Texas Constitution were allegedly violated.

This finding was erroneous for two reasons. First, appellees never pled that their due

process rights were violated. RR 90-100. Second, Cantu and Zamora received the

due process required by law because they had notice of the April 13 meeting and an

opportunity to be heard at that meeting.

      “Due process at a minimum requires notice and an opportunity to be heard at



                                           20
a meaningful time and in a meaningful manner.” City of Alamo v. Garcia, 960

S.W.2d at 225. In the City of Alamo case, this Court found that there was due process

when a city commissioner had the right to appear at a city commission meeting and

to be heard on the issue of his removal. Id. Cantu and Zamora had notice of the

hearing and an opportunity to be heard at the hearing. More over, they cannot claim

that they were prevented from presenting some evidence that would have changed the

outcome of whether they were found to have violated the City Charter. They both

admitted to doing business with the city while serving, which violates Section 2.02.

Therefore, as a matter of law appellees received due process, and the trial court erred

in finding otherwise.



V.    Section 2.02 of the City Charter is Constitutional

      (Issue No. 5)

      Appellees pled, as a basis for declaratory judgment, that Section 2.02 of the

City Charter was unconstitutional. CR 96. The trial court did not find that Section

2.02 was unconstitutional, and appellees did not plead unconstitutionality as a basis

for injunctive relief. CR 97-99, 103-105. Therefore, any argument that Section 2.02

is unconstitutional should not serve as a basis for affirming the temporary injunction.

However, out of an abundance of caution, Appellants have set out the authority for

                                          21
why it complies with the Texas Constitution.

      Section 2.02 of the Port Isabel City Charter is constitutional. Appellees claim

that Section 2.02 is unconstitutional and preempted because it imposes a greater

restriction of an official’s ability to do business with the city than provided by state

law. However, home rule cities are permitted to have ethical requirements that

exceed those imposed by state law. Tex. Atty Gen. Opin GA-0068 (2003). Local

Government Code Section 171.007(b) provides that the conflict-of-interest provisions

of chapter 171 are “cumulative of municipal charter provisions and municipal

ordinances defining and prohibiting conflicts of interests.” Therefore, neither state

statutory nor constitutional law prohibits Port Isabel from prohibiting its

commissioners from doing business with the city.



VI.   The City Commission Can Remove a Commissioner Without Resorting to
      Quo Warranto

      (Issue No. 6)

      The city commission has the power to remove a commissioner from office for

violating the charter.    Quo warranto is not the sole method of removing a

commissioner. The Texas Supreme Court affirmed a city’s right to remove its own

elected officials over a century ago in Riggins v. City of Waco, 93 S.W. 426 (Tex.



                                          22
1906). More recently, the Thirteenth Court of Appeals held that the city has that right

in City of Alamo v. Garcia, 960 S.W.2d 221 (Tex. App.—Corpus Christi 1997).

      In contrast, none of the quo warranto cases cited by appellees involved a city

commission removing an elected official pursuant to a municipal charter. Rather,

every one of those cases related to a private citizen’s attempt to file a lawsuit to

remove a public official from office. E.g. Hamman v Hayes, 391 S.W. 2d 73, 74

(Tex. App. Beaumont 1965, writ refused).



VII. The Temporary Injunction is Overly Broad because It Permits Appellees
     to Vote on Matters Regarding this Lawsuit

      (Issue No. 7)

      Arguing in the alternative, in the event that the Court affirms the temporary

injunction, the Court should reform and narrow the scope of the injunction. As the

injunction now stands Appellees can vote on this lawsuit. They have voted to fire the

city attorney, to make the attorney representing them in this lawsuit into the new city

attorney, to have the attorney representing them in this lawsuit advise the commission

in executive session regarding matters pertaining to this lawsuit, to retain counsel

chosen by their attorney to represent the City in this lawsuit, and to abandon this

appeal. A temporary injunction is only supposed to preserve the status quo. Butnaru



                                          23
v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). It should not be used as a means

to secure a final adjudication, or to prevent appellate review of the trial court’s orders.

Therefore, in the event that the Court affirms the granting of the temporary injunction,

Appellants ask that the Court also modify the injunction to prohibit Appellees from

voting on matters pertaining to this action or otherwise trying to prohibit the City

from appealing or defending itself in the lawsuit Appellees filed.



                           CONCLUSION AND PRAYER

       Appellants Maria de Jesus Garza and Joe E. Vega respectfully pray that the

Court reverse the trial court’s granting of an injunction.



                                                 Respectfully submitted,

                                                 /s/ Michael Cowen
                                                 Texas Bar No. 00795306
                                                 The Cowen Law Group
                                                 62 E. Price Road
                                                 Brownsville, Texas 78521
                                                 Telephone (956) 541-4981
                                                 Facsimile (956) 504-3674
                                                 E-Mail: Michael@CowenLaw.com




                                            24
                          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 24th day of June,
2015:

Gilbert Hinojosa
622 East St. Charles St.
Brownsville, Texas 78520
Fax: 1-956-544-1335
ghinojosa@ghinojosalaw.net

Robert L. Collins
P.O. Box 7726
Houston, Texas 77270-7726
(713) 467-8884
(713) 467-8883 Facsimile
houstonlaw2@aol.com
ATTORNEYS FOR CITY OF
PORT ISABEL

Frank E. Perez
FRANK E. PEREZ & ASSOCIATES, PC
300 Mexico Boulevard
Brownsville, TX 78520
 (956) 504-5991 Facsimile
fperez@feperezandassociates.com

                                               /s/ Michael Cowen




                                          25
                      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
4,797 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).


                                             /s/ Michael Cowen




                                        26
                      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
  In the 444th Judicial District Court of Cameron County, Texas


          APPENDIX TO APPELLANTS MARIA
      DE JESUS GARZA AND JOE E. VEGA’S BRIEF


                                    Michael Cowen
                                    Texas Bar No. 00795306
                                    The Cowen Law Group
                                    62 E. Price Road
                                    Brownsville, Texas 78521
                                    Telephone (956) 541-4981
                                    Facsimile (956) 504-3674
                                    E-Mail: Michael@CowenLaw.com



                               27
                        CONTENTS OF APPENDIX

1.   Temporary Injunction Order

2.   Page containing Section 2.02 of the Port Isabel City Charter

3.   City of Alamo v. Garcia, 960 S.W.2d 221 (Tex. App.–Corpus Christi 1997)




                                       28
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                              G!LBERTU HI~UJOSA                    LP           • " K•• '
                                                                               F;V          3;E~441'3~
                                                                                             .; .... " J ~                             F. 003

                                                 ····-·                                                      :w~~?,~i!JS:w2
                                                                                                             412S/201S 5:19:0<1   ~M
                                                                                                             ErfeGotzo
                                                                                                             cameron County Dietrict Clerk
                                                          CAUSE NO.lOlS-DCJ.-.2342                           By S.o~"iel Zofl"O• l:leputy CIGrk
                                                                                                             5072380

                 JUAN JOSE "JJ" ZAMOlt<t, Sit and                          §         lN IHE DISnttCI COCJRI OF'
                 MA:RTIN C. CANTU                                          §
                                                                           §
                 v.                                                        §         444TJl JlJDICIAL DISl'RICT
                                                                           §
                 CITY OF PORT tsftl!EL; TEnS,                              §
                 MARIA DE JES1JS GARZA;                                    §
                 GUILLERMO TORRES,                                        §
                JOE E. VEGA, KEN PAXTON                                   §
                THE ATTORNEY GENERAL OF TEXAS                             §         CAMERON COUNTY, IEXAS

                                                  TEMPORARY JN.II!N£TION ORDER

                           After considcriug Plaintiffs JJ Zamora's and Martin Ca!ltll 's application for a temporary

                injmctions, the pleadings, the evidence M<l the argumetltl of calll!sel, the court finds that: (1)

                Dofondsnt• voted to remove Plaintiffs as Port Isabe1 Crty Commissioners and w'Jl not allow

                Plaixrtiffs to ccmtinue to act as du\y elected City Commissioners for Places I md 3 afu>r Apl'il 13,
                                                                                                                                        ,
               2015;     and (2) Without this temporary injunction, Plaintiffs will lose their righm to be included in
                llie ongomg business of city government as Port Isabel City Commissio11ers and will lose their
                                                                                                                          .


               right to vote on matters concerning Port Isabel ciiy gov=ent. Therefore, the Court finds tnat

                hann is hntrrinent to l:'laimi:ffS if the court does not Jssuo. the t.emporary illj1mctio11 and that

               p]a,!!1:ifis Wlil oe lll'eporaoly liarmed b<:cause (!) Plaintiffs were auJy electel:l to their respective

               office~ as     Port Isabel City Commissioners Places 1 antl3; (2) Defendants do not regard Plaill.t.iffs

               as City Commissioners llt!y longer and will not allow Plointiffs to continue to oct as Ci;;•

               Comnus:noners; an(] (3) Defendants' actions m            ous~ng   Plaurtit!S !rom tlietr pos!bO'ns as Port

               Isabel City Commissioners dcpri""' Plaintiffs :from tbeir interests, righ.ts and entitlements as

               afforded to Plai!ltiffs under tl1e law and Conoti.tution of the Sta:te of Te1>:as. The Court finds that

     . . . .... ttle "!llJlllj'   ana: ·nann to Plawttm· a6sent "tilL<" temporary   1DJWlCil.CID, Will·      oe tmmeirulte ana                     -   -'   .   -




                                                                                                                                             103
05/12/2015     15:51           9563837608                                139TH                                                             PAGE           02/03
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  ,fl.' . "'' .... • . 1 i)3 Gl P!! GILBERTO HJNDJOSA LP                       •IF    'I 95""44
                                                                                 ,',A ,· 0,b~   I .,.
                                                                                                  ;JJ                                  P. CQ4

    "




               irreparable.      Plaintiffs have established a probable right to reoovery since Plaintiffs were

               -ved by D~fendaals os oil:! eoml!lissi011C!5 hl violatkm of lhe City ofi'ort .tsabel Horue RUle

               Charter, mrte law and in violation of their d.ue process rlglm; protected under tbe Texas

              ConstitntioJl,

                         IT IS TEEl/JlfORE omD, ADJ'UPGED A~ID DBCRBED that Defendmllo City of

              Port Isabel, Maria de Jesus Ga."'Za in her individu~ capacity and her cnpaci1y as Port Isabel City

              Commiosiouer Pla"e 2, Guilli!:!mo Toll'es in his individual capodty and his capacity as Port

              Js,,bel   Cify c":tllmissioner Pl""" 4 an<l Joe B. Vega .m his iiiEii":icloal ea.paeil) ond bis capBLiLJ• as

              Mayor of the City of Port Isabel City are prohibited from: (l) removing Plaintiffs from thei:r

              respective offices as Port Isa~el City Commissioners for Places 1 and 3; (2) taking any actions to

              exclude     pJ.;utjffu :from participation in th!l business oand!!ored by tile Part                     lsab~l    Cit)

              Commissioo; (3) withholding information fl:om Plaintiffs whi~. would. in s.ny wey impede

             Plaintiffs' respective ability to cany out their respective duties"" Port Isabel City Commissmne.rs

             concerning the business conducted by +he City e>f Port lsab=l &llol                  tt... l'91t Isabel            Ciiy

             Commission; (4) takin,g any action to replace Plaintiffs as Pon: !&abel City Co!lllllissioners Places

             1 and 3; (5) declaring vac1111cies for Port Isabel City Comtnissioncr Places 1 and 3, and (6)

             including as an !l(l•ndo item on any fntm• agencJ•. fo• removal ofPloimi:ffs !rom t:ll<oir resJl<"'ti•·e

             offices as Port Isabel City Conunissioncrs.

                        IT :IS FURTHER ORDERED that final trial on tho merits is set for August 28, 201:5 iii:

             10;00 a:m.

                        IT .IS FURTHER ORDERED that this temporary in,junction vacates ond supersedes any

             prior orders ofthi.l Comt.
                                                                   '    ""'"                  -         ''   ',, "'     "   '      "   -    '"    -·-··      -'




                                                                                                                                            104
05/12/2015       15:51          9553837508                                 139TH                                                   PAGE   03/03
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                            0. • Flil    G!LBERTO JINOJOSA LP                   ?AX No.   55554~1335                           ?, DOS




                           J11e Court set the bond at $100.00.

                           The terms ofthis mrnp""'"J' illjnnction wiJ! ae!ltill'!lelllltii fu1tm1 wdex ofti!is Court.



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                           SIGNRD onlhi' tbe     I .2- day e~
                                                 I
                                                                          ~                       '2015.



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                                                             h' .'lc-.. Vl.-1       vfiA ~ j

                                                         '                      I




                                                                                           FILED<{~ o'ciock:=Jl            M
                                                                                     ERIC GARZA             DISTRICT CLERK


                                                                                                  JUN - 1 2~15
                                                                                     c 5!-. -  z                    'A• '"""
                                                                                                                               ~

                                                                                                                                   '"
                                                                                    !j!;/J/)~;;~~~~                    Deputy#!;


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                                                                                          .. -   ..            .. -.               --




                                                                                                                                    105
8                                        Port Isabel - Home Rule Chart er


SECT ION 1.04 EXTENSION OF BOUNDARIES.


                                                                       annex ation o a 1 ona e · o
Isabel and to provid e for the extens ion of bound ary limits and the
                                                                             ure provid ed for in Article 970ao f
adjace nt to said City, all pursua nt to and in confor mance with the proced
                                                                         ments thereto , and any other applicable
the Revise d Civil Starute s of Texas , includ ing all subseq uent amend
                                                                           tants thereo f shall be entitle d to all
State Stah!tes. Upon additio nal territo ry being so annexe d, the inhabi
                                                                                         anees, Rt::solutions and
ri ts, and pnVJ!eges of other citizen s; and shall be bomrd by the Aets, OR!in
Regul ations of the City of Port Isa e .

SECT ION 1.05 CONT RACT ION OF BOUNDARIES.
                                                                              Isabel any territo ry not suitabl e or
     Whene ver there exists within the eorp6r ate limits of the City of Port
                                                                             wit!t t!te laws of the State of Texas,
necess ary for City purpos es, the City Comm ission may, in accord ance
                                                                         ed, howev er, any territo ry so exclud ed
discon tinue said territo ry as a part of the City by Ordina nce; provid
                                                                          of any debts incurr ed while said area
from the City of Port Isabel shall remain liable for its prorat a share
was a part of the City, in accord ance with law.




                                  ARTI CLE II: MUNICIPAL GOVE RNM ENT


    SECT ION 2.91 lVL.A..YOR AND COM MISS IONE RS.

                                                                             City Comm ission , which shall be
        The govern ing body of the City of Port Isabel shall consis t of the
                                                                         be design ated as Comm ission er No. I,
    compo sed of a Mayor , and four Comm ission ers, one of whom shall
                                                                        as Comm ission er No. 4.
    one as Comm ission er No. 2, one as Comm ission er No. 3, and one


    SECT ION 2.02 QUAL IFICA TION S.
                                                                                     States, and have resided in the State
         The Mayor and each Comm ission er shall be citizen s of the United
                                                                              of Pm t Isabel, Texas, f6f a contin uous
    of Texas for a contin uous penod of two (2) years and in the City
                                                                                   at the time of filing as a candid ate for
    period of one year, and have attaine d the age of twenty -one (2 I) years
                                                                                 candidates; in the State Electio n Code.
    such positio n; and shall have the other qualifi cation s as provid ed for
                                                                                  !l.Bt ~e ia~e9!ed to the City, ;~a\•e 11nd
    The Mayor , Comm ission ers, and other officer s and emplo yees il:iall
                                                                                          bttt ndtl:J. sueh ad vatorern taxcs-
    -except fot ad valOJCI11 hHtes iH the cvrrent year_ aR:S the ~tetrietts )till only,                              i~4A8
                                                                                                                      1
                                                                                   is: e ns'il Jtjrg a disspJa
    mtd any utlru. inS:eBtetlH:ess ····eEl to the Giij te Gra timely paiti (8thePt
    indebtedne~~ het'el!ftiler); shall not hold any other public
                                                                    office ofemo !umoo t, exeep t the office ofNat ary
                                                                                 contra ct, job, work or servic e for the
    Public , and shall not be interes ted in the profits or emolu ments or any
                                                                               of any proper ty, real or person al. If the
    City of Port Isabel, or interes ted in the sale or lease to or by the City
                                                                               qualifi cation s, or shall be absent from
    Mayor or any City Comm ission er fails to mainta in, the forego ing
                                                                                  shall at its next regula rly schedu led
    tlnee consec uti .e regula rly sehOOuloo meeting5, the City Comm ission
                                                                              forth in Sectio n 2 03 ofthis Charter. All
    meetin g declar e a vacancy to exist and shall fill said vacanc y as set


                                                                                                                  58
                                          Home Rule Charter                                                9


such qualifications and requirements shall be fully complied with by any prospective candidate for the
position of Mayor or Commissioner at the time of filing for election. Any officer or employee of the City
who shall cease to IJOssess any of the qualtficahons fierem reqmreo snail forthwith forfeit his m her office
and any such contracts in which any officer or employee is or may become mterested may be declareo voio
by the City Commission. Any violation, of this Section shall be a misdemeanor, and on conviction for such
violation, such office or employment shall be forfeited.


SECTION 2.03 VACANCIES OF MAYOR OR COMMISSIONERS.

      When a vacancy occurs in the City Commission, the remaining members of the City Commission shall,
within ten (1 0) days, appoint a qualified person to fill the unexpired term. However, the City Commission
shall not appoint more than one 8t'lmmissiener in any tw.:l•i<: mmlth peciod, and in the m'""t that two
vacancres occur wrthm any twelve (12) month period, the Eity 8t'lmmissit'ln shall eall a special election to
fill the second (or more) vacancies so occurring.


SE€'fi9N ~.04 GQM~ENSP._'l'ION OE MAYOR ANn COMMISSIONERS.

    The Mayor shall receive for his services the sum of One Hundred Dollars ($1 00.00) per month and
each of the four City Commissioners shall receive the sum of Fifty Dollars ($50.00) per month for their
services on the City Commission.


 SECTION 2.05 DUTIES AND POWERS OF MAYOR.

      The Mayor of the City shall be the presiding officer of the Commission. The Mayor shall be entitled to
 vote as a member of the Commission, shall sign all ordinances, resolutions, and financial statements, and
 ohall be the chief executive officer ofthe City and exercise all powers ana perform all oufies rmposeo upon
 the Mayor by this Charter and by the Ordinances of the City.


 SECTION 2.06 DUTIES AND POWERS OF MAYOR PRO-TEMPORE.

     In the absence of the Mayor, a Mayor Pro-tempore shall act m tfie Mayor s place ana stead. At the
 next regular meeting of the City Commission after each election of a Mayor and/or Commissioners, one of
 such Commissioners shall be elected Mayor Pro-tempore by a majority vote of the Commissioners. In the
 absence ofboth the Mayor and the Mayor Pro-tempore, a presiding Mayor Pro-tempore shall be elected by
 a maJontyvote ofrhe eommissioners preserrt.ln the absenee t'lfthe Mayer, th.: Mayefl'ro tempore shall be
 charged with the same ouhes of the Mayor, snail be entitled to the same rights and privileges efthe Mayor
 and shall be subject to the same restrictions and limitations of the Mayor as provided for in this Charter and
 by the laws of the State of Texas.


 SEeTION 2.07 DUTIES AND POV/ERS 9F COI\fMISSIQN.

                                                                                                           .
                                                                                                      59
                                                                                                        Page 1
960 S.W.2d 221
(Cite as: 960 S.W.2d 221)




                                                            power.

           Court of Appeals of Texas,                       [2] Municipal Corporations 268        159(6)
                 Corpus Christi.
THE CITY OF ALAMO and its Employees, Agents                 268 Municipal Corporations
 and all Those Acting in Concert with them or at               268V Officers, Agents, and Employees
           their direction, Appellants,                           268V(A) Municipal Officers in General
                         v.                                          268k153 Removal
          Ponciano GARCIA, Appellee.                                    268k159 Proceedings and Review
                                                                            268k159(6) k. Review. Most Cited
               No. 13–97–340–CV.                            Cases
                  Nov. 25, 1997.                                Courts cannot interfere to protect person from
        Rehearing Overruled Dec. 18, 1997.                  removal from municipal office by man or body of
                                                            men to whom the power to remove is given by law.
     After city commissioner was removed from
board of commissioners and election was held for            [3] Municipal Corporations 268        104
his seat, commissioner sued city to prevent seating
of newly elected commissioner. The 92nd District            268 Municipal Corporations
Court, Hidalgo County, Edward Aparicio, J., gran-               268IV Proceedings of Council or Other Govern-
ted former commissioner temporary injunction, and           ing Body
city appealed. The Court of Appeals, Seerden, C.J.,                268IV(A) Meetings, Rules, and Proceedings
held that: (1) after commissioner's seat was auto-          in General
matically forfeited for absenteeism from board                         268k104 k. Appeal from Decisions. Most
meetings, postdeprivation hearing before calling of         Cited Cases
election for replacement commissioner was suffi-                 Court may review actions of city board of com-
cient to protect former commissioner's due process          missioners for home rule city for abuse of discre-
rights, and (2) notice provision of Open Meetings           tion and due process. U.S.C.A. Const.Amend. 14 §
Act did not apply to forfeiture of seat on city board       1; Vernon's Ann.Texas Const. Art. 1, § 19.
of commissioners for absenteeism from board meet-
                                                            [4] Constitutional Law 92      3875
ings.
                                                            92 Constitutional Law
    Reversed and rendered.
                                                                92XXVII Due Process
                  West Headnotes                                        92XXVII(B) Protections Provided and
                                                            Deprivations Prohibited in General
[1] Municipal Corporations 268          65                             92k3875 k. Factors Considered; Flexibil-
                                                            ity and Balancing. Most Cited Cases
268 Municipal Corporations                                      (Formerly 92k251.5, 92k251.1)
     268III Legislative Control of Municipal Acts,
Rights, and Liabilities                                     Constitutional Law 92       3912
           268k65 k. Local Legislation. Most Cited
Cases                                                       92 Constitutional Law
    Home rule city, which is governed by its city              92XXVII Due Process
charter, looks to legislature only to ascertain wheth-                  92XXVII(B) Protections Provided and
er legislature has limited city's constitutional            Deprivations Prohibited in General




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                                                                                                         Page 2
960 S.W.2d 221
(Cite as: 960 S.W.2d 221)




                92k3912 k. Duration and Timing of           [6] Administrative Law and Procedure 15A
Deprivation; Pre- or Post-Deprivation Remedies.             124
Most Cited Cases
    (Formerly 92k251.6)                                     15A Administrative Law and Procedure
     Pre-deprivation hearing is not required in every            15AII Administrative Agencies, Officers and
case; rather, process required is measured by balan-        Agents
cing of three factors: (1) private interest that will be           15Ak124 k. Meetings in General. Most Cited
affected by official action; (2) risk of erroneous          Cases
deprivation of such interest through procedures                 In order for notice provision of Open Meetings
used, and probable value, if any, of additional or          Act to apply to governmental body's meeting, gov-
substitute procedural safeguards; and (3) govern-           ernmental body must act, discuss, or do public busi-
ment's interest, including function involved and            ness. V.T.C.A. Government Code §§ 551.001(4),
fiscal and administrative burdens that additional or        551.041.
substitute procedural requirement would entail.
                                                            [7] Municipal Corporations 268          89
U.S.C.A. Const.Amend. 14 § 1; Vernon's
Ann.Texas Const. Art. 1, § 19.                              268 Municipal Corporations
                                                                268IV Proceedings of Council or Other Govern-
[5] Constitutional Law 92          4174
                                                            ing Body
92 Constitutional Law                                               268IV(A) Meetings, Rules, and Proceedings
   92XXVII Due Process                                      in General
        92XXVII(G) Particular Issues and Applica-                      268k89 k. Calling and Notice of Meeting.
tions                                                       Most Cited Cases
            92XXVII(G)7 Labor, Employment, and                   Notice provision of Open Meetings Act did not
Public Officials                                            apply to forfeiture of seat on city board of commis-
                 92k4174 k. Elected Officials. Most         sioners for absenteeism from board meetings; city
Cited Cases                                                 charter provision disqualifying commissioner was
   (Formerly 92k278.4(5))                                   self-enacting and did not require action on part of
                                                            board. V.T.C.A. Government Code §§ 551.001(4),
Municipal Corporations 268            159(4)                551.041.

268 Municipal Corporations                                  [8] Municipal Corporations 268          89
    268V Officers, Agents, and Employees
       268V(A) Municipal Officers in General                268 Municipal Corporations
          268k153 Removal                                       268IV Proceedings of Council or Other Govern-
             268k159 Proceedings and Review                 ing Body
                 268k159(4) k. Notice and Hearing.                 268IV(A) Meetings, Rules, and Proceedings
Most Cited Cases                                            in General
     After city commissioner's seat was automatic-                    268k89 k. Calling and Notice of Meeting.
ally forfeited for absenteeism from meetings of             Most Cited Cases
board of commissioners, postdeprivation hearing
                                                            Municipal Corporations 268         92
before calling of election for a replacement com-
missioner was sufficient to protect former commis-          268 Municipal Corporations
sioner's due process rights. U.S.C.A. Const.Amend.             268IV Proceedings of Council or Other Govern-
14 § 1; Vernon's Ann.Texas Const. Art. 1, § 19.             ing Body
                                                                   268IV(A) Meetings, Rules, and Proceedings




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                                                                                                            Page 3
960 S.W.2d 221
(Cite as: 960 S.W.2d 221)




in General                                                      (4) fails to attend four (4) consecutive regular
            268k92 k. Rules of Procedure and Con-             meetings of the Board of Commissioners unless
duct of Business. Most Cited Cases                            he is excused by unanimous vote of the Board of
    Although notice provision of Open Meetings                Commissioners, the vote to be taken at the end of
Act did not apply to forfeiture of seat on city board         the fourth meeting; or
of commissioners for absenteeism from board meet-
ings, Act applied to subsequent hearing at which of-              (5) fails to attend eight (8) regular meetings of
fending commissioner defended his absences and                the Board of Commissioners in any anniversary
remainder of board voted on whether to excuse his             year of such person, unless he is excused by un-
absences. V.T.C.A. Government Code §§                         animous vote of the Board of Commissioners, the
551.001(4), 551.041.                                          vote to be taken at the end of the eighth meeting
                                                              ...
*222 Neil E. Norquest, Chris A. Brisack, Norquest
& Brisack, James E. Darling, Kevin D. Pagan, Mc-                 The City of Alamo alleges Place 4 Commis-
Allen, for appellants.                                      sioner Ponciano Garcia missed four consecutive
                                                            meetings of the Board, and missed eight Board
Aaron Pena, Jr., Edinburg, Keith C. Livesay, McAl-          meetings in one anniversary year. Thus, pursuant to
len, for appellee.                                          the charter, Garcia's seat was automatically for-
                                                            feited. On January 7, 1997, the Board of Commis-
                                                            sioners (the Board) took a vote on whether Garcia's
Before SEERDEN, C.J., and FEDERICO G. HINO-
                                                            absences would be excused. The Board voted not to
JOSA, Jr. and CHAVEZ, JJ.
                                                            excuse Garcia.

                     OPINION                                     On January 21, 1997, after allowing Garcia an
SEERDEN, Justice.                                           opportunity to explain his absences, a majority of
     The City of Alamo, appellant, appeals the trial        the Board members, once again, *223 voted not to
court's decision to issue a temporary injunction pro-       excuse Garcia's absences. An election was there-
hibiting it from swearing-in a newly elected com-           after called for Place 4, i.e., former Commissioner
missioner. We reverse the trial court's decision and        Garcia's seat.
order that the injunction be dissolved.
                                                                 On April 11, 1997, Garcia filed an original pe-
     [1] The City of Alamo is a home rule city gov-         tition claiming that he had not forfeited his city
erned by its city charter. A home rule city looks to        commission seat, and seeking to enjoin the election
the legislature only to ascertain whether the legis-        of any individual to that seat. Without notice to ap-
lature has limited the city's constitutional power.         pellant, a restraining order enjoining the election
Garza v. Garcia, 785 S.W.2d 421, 422                        was entered on April 14, 1997. This order, under
(Tex.App.—Corpus Christi 1990, writ denied). “A             protest of appellant, was subsequently withdrawn.
grant of power of removal from office is strictly           See City of McAllen v. Garza, 869 S.W.2d 558, 560
construed and whatever is not given in unequivocal          (Tex.App.—Corpus Christi 1993, writ denied)
terms is withheld and not implied.” Id. This Court          (Texas law does not allow enjoining elections).
can take judicial notice of the city charter, which is
                                                                Garcia submitted himself as a candidate for the
in the record. See Id. Article II, section 6 of the
                                                            vacated seat on the city commission. On May 3,
Alamo City Charter provides, in relevant part:
                                                            1997, Marcelinos Medina defeated former Commis-
     A mayor or Commissioner shall forfeit his of-          sioner Garcia in the election for Place 4. On May 6,
  fice if the Mayor or Commissioner:                        1997, Garcia filed his first amended petition re-




                            © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                           Page 4
960 S.W.2d 221
(Cite as: 960 S.W.2d 221)




questing declaratory and injunctive relief relating to      however, be able to review a city council's (or com-
his forfeiture and the seating of Medina as commis-         mission's) actions for abuse of discretion and due
sioner. The trial court, without notice to appellant        process. Garza, 785 S.W.2d at 422.
or a hearing, granted Garcia's request for a tempor-
ary restraining order thereby prohibiting appellant             The co-existence of these two rules was best
from swearing-in the newly elected commissioner.            summed up by the San Antonio Court of Appeals in
At that time, the trial court set a hearing on Garcia's     White      v.     Bolner,    223      S.W.2d      686
motion for a temporary injunction.                          (Tex.Civ.App.—San Antonio 1949, writ ref'd). In
                                                            White, Bolner and others sued White as the mayor
     On May 30, 1997, after the hearing on Garcia's         of the city of San Antonio. Bolner and others
motion, the trial court, finding the actions of the         prayed for, and were granted, a temporary injunc-
Alamo City Commissioners unreasonable, orally               tion “restraining A.C. White as Mayor of City of
granted a temporary injunction enjoining appellant          San Antonio, from taking any other further action
from seating anyone in Place 4. A written order was         to oust plaintiffs ... as commissioners of San Anto-
signed by the trial court on June 17, 1997, which           nio Housing Authority, and also enjoining [the re-
added, as further grounds for the injunction, that the      placement commissioners] from acting as commis-
self-enacting forfeiture provision violated the due         sioners of the San Antonio Housing Authority.” Id.
process requirements of, presumably, the Texas              at 687. In reversing and setting aside the injunction,
and/or United States Constitutions. The trial court         the court stated that although Bolner and others
also found the City's charter to be in conflict with        were entitled to judicial review, “the right to a re-
the Texas Open Meetings Act.                                view by a judicial body does not entitle appellees to
                                                            a temporary injunction, the effect of which is to
    Appellant's request for emergency and manda-            perpetuate them in office pending that review.” Id.
mus relief was denied by this Court. Appellant, pur-        at 688. In conclusion, the court stated that the may-
suant to TEX. CIV. PRAC. REM.CODE ANN. §                    or,
51.014(4) (Vernon 1997), brings this interlocutory
appeal of an order granting a temporary injunction.           ... [h]aving jurisdiction and having made an order
                                                              ousting appellees, this order must be presumed to
     In its first point of error, appellant complains         be correct and must be given effect until the con-
that the trial court lacked the authority to interfere,       trary is shown. While appellees have a right to a
via injunctive relief, with the self-enacting forfeit-        judicial review of this matter, they do not have
ure provision contained within the Alamo City                 the right to have this action by the mayor *224
Charter. Specifically, appellant argues that although         suspended and rendered inoperative pending their
Garcia was entitled to judicial review of the Board's         judicial review of the matter.
decision not to excuse his absences, injunctive re-
lief was not available.                                          Id. at 688–89. See also Riggins v. City of Waco,
                                                            100 Tex. 32, 93 S.W. 426 ( 1906)(Texas Supreme
     [2][3] Texas courts, in recognition of the             Court concluded that it could not interfere with or
autonomy and separate powers of municipal legis-            disregard the action of the city council in removing
latures, “will not interfere to protect a person from       the mayor from office other than inquiring into
removal from office by a man or body of men to              whether the council exceeded its lawful authority in
whom the power to remove is given by law.” Hunt-            the attempted removal so that its action may be
ress v. McGrath, 946 S.W.2d 480, 484–85                     considered a nullity); Huntress, 946 S.W.2d at 486
(Tex.App.—Fort Worth 1997, n.w.h.)(quoting                  (court, in granting mandamus relief, held the trial
Callaghan v. Tobin, 40 Tex.Civ.App. 441, 90 S.W.            court abused its discretion in enjoining hearings
328, 330 (1905, writ ref'd)). The courts will,              conducted by city aldermen for removal of mayor);




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Cosmo Life Insurance Co. v. State Board of Insur-           removal ...”)(emphasis added) (quoting Riggins v.
ance, 319 S.W.2d 162, 165 (Tex.Civ.App.—Austin              City of Waco, 100 Tex. 32, 93 S.W. 426, 427 (
1958, no writ)(citing White v. Bolner in support of         1906)); Industrial Accident Board v. O'Dowd, 298
its holding that Cosmo was entitled to judicial re-         S.W.2d 657, 658–59 (Tex.Civ.App.—Austin)
view of Board's order regulating issuance of                (affirming temporary injunction preventing Board
policies but that “such review does not entitle them        from barring plaintiffs from practicing before
to a temporary injunction the effect of which is to         Board based on unconstitutionality of statute pursu-
perpetuate regulations, and rates ...”).                    ant to which Board acted), rev'd, 157 Tex. 432, 303
                                                            S.W.2d 763 (1957)(reversed and dissolved tempor-
     As appellant points out, the Board in the case at      ary injunction finding statute pursuant to which
hand acted within their authority as provided under         Board acted to be constitutional); City of Fort
the city charter. Therefore, appellant argues, based        Worth v. McDonald, 293 S.W.2d 256, 259
on the caselaw cited above, Garcia was not entitled         (Tex.Civ.App.—Fort Worth 1956, writ ref'd n.r.e.)
to injunctive relief.                                       (enforcement of unconstitutional city ordinance
                                                            properly enjoined).
     We do not question the authorities cited by ap-
pellant nor the proposition that the actions of the              Therefore, it appears to us as though injunctive
Board, when acting pursuant to its lawful authority,        relief is available where the Board acts pursuant to
are not subject to injunctive relief. However, in the       “unlawful” authority. In this regard, the trial court,
cases cited by appellant, the actors were acting pur-       upon finding the city charter violative of due pro-
suant to “lawful authority.” That is, the provisions        cess considerations and the Open Meetings Act,
acted upon, whether they be city ordinances or oth-         could have properly enjoined appellant.
er statutory authority, were either not challenged or
were found “lawful.”                                             Appellant, however, in his second point of er-
                                                            ror and his reply brief, argues that the automatic
     For example, in White v. Bolner, 223 S.W.2d at         forfeiture provision of the city charter does not vi-
688–89 (discussed above), the San Antonio Court             olate due process or the Open Meetings Act. We
of Appeals first overruled appellees' contention that       agree.
the statutory authority upon which Mayor White re-
lied upon in ousting appellees was unconstitutional                            DUE PROCESS
and void because it failed to provide for judicial re-           The United States Constitution provides:
view. Only then did the court examine the mayor's           “[N]or shall any State deprive any person of life,
compliance with the statute and hold that appellees,        liberty, or property, without due process of law ...”
while entitled to judicial review, were not entitled        U.S. Const. Amend. XIV, § 1. The due process pro-
to injunctive relief. It appears from the language of       vision of the Texas Constitution states: “No citizen
the opinion that if the statute was held unconstitu-        of this State shall be deprived of life, liberty, prop-
tional as argued by appellees, the injunctive relief        erty, privileges or immunities, or in any manner
granted by the trial court would have been affirmed.        disenfranchised, except by the due course of *225
Cf. Garza, 785 S.W.2d at 423 (“the judgment of a            the law of the land.” TEX. CONST. art. I, § 19.
governing body having discretionary power would             Despite the textual differences between the two
not be reversed unless the body's action was illegal,       provisions, the Texas Supreme Court has concluded
unreasonable, or arbitrary) (emphasis added)(citing         there is no meaningful distinction between the pro-
Lewis v. City of Fort Worth, 126 Tex. 458, 89               visions. University of Texas Medical School at
S.W.2d 975 (1936)); Huntress, 946 S.W.2d at 485             Houston v. Than, 901 S.W.2d 926, 929 (Tex.1995).
(“the courts ... may inquire whether or not the coun-       Therefore, we consider federal due process claims
cil exceeded its lawful authority in the attempted          and State due course claims together using contem-




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porary federal due process interpretations. Id.             the constitutionality of every statute or ordinance is
                                                            accompanied by a presumption that it was drafted
     When analyzing due process, we apply a two-            with constitutional requisites in mind. TEX. GOV'T
part test: (1) we must determine whether appellee           CODE ANN. § 311.021 (Vernon 1988); Texas Em-
had a liberty or property interest entitled to proced-      ployment Com'n v. Remington York, Inc., 948
ural due process; and (2) if so, we must determine          S.W.2d 352, 357 (Tex.App.—Dallas 1997, n.w.h.).
what process is due. Logan v. Zimmerman Brush               Presumably, the City of Alamo, in drafting its
Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153–54,            charter, intended that Garcia be afforded an oppor-
71 L.Ed.2d 265 (1982); Than, 901 S.W.2d at 929.             tunity to be heard, albeit after his seat was declared
Assuming arguendo Garcia had a sufficient liberty           vacant. House of Tobacco, Inc. v. Calvert, 394
or property interest in his position as city commis-        S.W.2d 654, 658 (Tex.1965)(although statute does
sioner, we find the required process was provided.          not provide for notice and a hearing, such is not un-
                                                            constitutional since these provisions may be by im-
     [4] Due process at a minimum requires notice
                                                            plication incorporated into the statute unless the
and an opportunity to be heard at a meaningful time
                                                            statute expressly provides otherwise) (citations
and in a meaningful manner. Than, 901 S.W.2d at
                                                            omitted); Limon v. State, 947 S.W.2d 620, 626–27
930 (citing Mathews v. Eldridge, 424 U.S. 319,
                                                            (Tex.App.—Austin 1997, no pet. h.)(“[T]he fact
333, 96 S.Ct. 893, 901–02, 47 L.Ed.2d 18 (1976)).
                                                            that a statute does not expressly provide for notice
What process is due is a “flexible” concept depend-
                                                            and hearing does not render it unconstitutional.”)
ing on the facts and circumstances of the particular
                                                            This is further evidenced by the fact that Garcia
case. Mathews, 424 U.S. at 334, 96 S.Ct. at 902;
                                                            was, upon request, given an opportunity to explain
Than, 901 S.W.2d at 930. In general, there is no
                                                            his absences to the Board on January 21, 1997. The
rule that a “pre-deprivation” hearing is required in
                                                            only question remaining is whether this post-
every case. Chaney v. Suburban Bus. Div. Of Re-
                                                            deprivation hearing was sufficient to comply with
gional Transportation Authority, 52 F.3d 623, 628
                                                            due process.
(7th Cir.1995). Rather, the process required is
measured by the balancing of three factors: (1) the              [5] Applying the three Mathews factors, we
private interest that will be affected by the official      conclude that a post-deprivation hearing was suffi-
action; (2) the risk of an erroneous deprivation of         cient to protect Garcia's due process rights. Al-
such interest through the procedures used, and the          though Garcia, being subject to an automatic for-
probable value, if any, of additional or substitute         feiture provision, loses the right to challenge the
procedural safeguards; and (3) the government's in-         applicability of the provision prior to forfeiture,
terest, including the function involved and the fiscal      such an interest pales in comparison to other in-
and administrative burdens that the additional or           terests. For example, when a board member effect-
substitute procedural requirement would entail.             ively abandons the duties of his office, the need for
Mathews, 424 U.S. at 335, 96 S.Ct. at 902–03                the establishment of the vacancy becomes urgent.
                                                            The citizens of the city were not being represented
     It is undisputed that Garcia received no notific-
                                                            as they were entitled to be, with a full Board of
ation that his office was to be vacated other than his
                                                            Commissioners. Additionally, the issue of the ap-
presumed knowledge of his own absences from the
                                                            plication of the charter *226 provision in question
board meetings and of the requirements of the city
                                                            is one of simple resolution. Determining whether a
charter. There was no hearing conducted prior to
                                                            commissioner misses four consecutive meetings, or
his automatic forfeiture. There is nothing in the city
                                                            eight meetings in a given year, is not likely to be
charter, however, which expressly forecloses the
                                                            subject to factual dispute. Accordingly, we con-
opportunity to be heard regarding the facts upon
                                                            clude that Garcia was afforded due process.
which his seat was forfeited. The presumption of




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                OPEN MEETINGS ACT                           (more important the governmental action, the more
     As part of the basis in awarding injunctive re-        specific the notice must be).
lief, the trial court found that the charter provisions
in question “were incapable of being satisfied and               [7] The city charter provision in question,
simultaneously comply with the Open Meetings                however, does not require action on the part of the
Act....” We disagree.                                       Board. Rather, the charter provision which disquali-
                                                            fied Garcia from holding his position was self-
                                                                      FN1
    [6] The Open Meetings Act was enacted in                enacting.       Upon the occurrence of his fourth
1967 to assure that the public has the opportunity to       consecutive and eighth absence, his disqualification
be informed about the transactions of public busi-          from office was automatic without the need for fur-
ness. City of San Antonio v. Fourth Court of Ap-            ther action by the remainder of the commission.
peals, 820 S.W.2d 762, 765 (Tex.1991); Acker v.             The Board did not terminate Garcia's position; Gar-
Texas Water Com'n, 790 S.W.2d 299, 300                      cia forfeited his position. Therefore, the provisions
(Tex.1990) (quoting Acts 1967, ch.271, § 7, 1967            of the Open Meetings Act are inapplicable.
Tex. Gen. Laws 597, 598). The act provides:
                                                                     FN1. Under such an automatic forfeiture
    A governmental body shall give written notice                    provision, only the occurrence of the dis-
  of the date, hour, place, and subject of each meet-                qualifying event itself, not the reasons
  ing held by the governmental body.                                 therefore, are relevant to whether the pro-
                                                                     vision applies. See Harrison v. Chesshir,
     TEX. GOV'T CODE ANN. § 551.041 (Vernon                          316         S.W.2d          909,       914
1994). A “meeting” includes “a deliberation ... dur-                 (Tex.Civ.App.—Amarillo 1958), rev'd on
ing which public business or public policy over                      other grounds, 159 Tex. 359, 320 S.W.2d
which the governmental body has supervision or                       814 (1959); Prince v. Inman, 280 S.W.2d
control is discussed or considered or during which                   779, 781 (Tex.Civ.App.—Beaumont 1955,
the governmental body takes formal action.” TEX.                     no writ)(only fact susceptible to judicial
GOV'T CODE ANN. § 551.001(4) (Vernon 1994).                          review was determined to be whether dis-
From this definition and from an examination of the                  qualifying event occurred).
caselaw applying the Open Meetings Act, it is clear
that the governmental body must act, discuss, or do              [8] The provisions of the Open Meetings Act
in order for the notice provision of the Open Meet-         were, however, applicable to the subsequent hear-
ings Act to apply. See Acker, 790 S.W.2d at 300             ing (see discussion on due process) at which Garcia
(purpose of Act is to assure that public has the            defended his absences, and the remainder of the
“opportunity to be informed concerning the transac-         Board voted on whether to excuse Garcia's ab-
tions of public business.”); Markowski v. City of           sences. There is no argument by either party that
Marlin, 940 S.W.2d 720, 725 (Tex.App.—Waco                  the requirements of the Open Meetings Act were
1997, no writ)(notice sufficient under act if it            not met in relation to that hearing, nor would such
would alert reader to fact that some action would be        affect our holding that the city charter provisions in
taken on certain topic); Rettberg v. Texas Dept. Of         question are not inherently inconsistent with the no-
Health,     873      S.W.2d      408,     411,    413       tice provisions of the Open Meetings Act.
(Tex.App.—Austin 1994, no writ)(issue is whether
notice of governmental meeting was “sufficiently                               CONCLUSION
specific to alert the interested public that some dis-           Accordingly, because due process considera-
cussion and action could occur ...”); Point Isabel          tions are not violated, and because the city charter
Indep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176, 180          does not conflict with the Open Meetings Act, we
(Tex.App.—Corpus Christi 1990, writ denied)                 find the city charter to be “lawful” authority. There-




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fore, because it is *227 uncontested that the Board
acted within the confines of the charter provisions,
injunctive relief is not available. (See above).

     We sustain appellant's first and second points
of error, reverse the judgment of the trial court, and
render judgment that the order of injunction be dis-
solved. All other points need not be discussed.
TEX.R.APP. P. 47.1.

Tex.App.–Corpus Christi,1997.
City of Alamo v. Garcia
960 S.W.2d 221

END OF DOCUMENT




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