                                        DISSENTING OPINION
                                              No. 04-10-00324-CV

                                 KILLAM RANCH PROPERTIES, LTD.,
                                           Appellant

                                                         v.

                                         WEBB COUNTY, TEXAS,
                                               Appellee

                       From the 341st Judicial District Court, Webb County, Texas
                                 Trial Court No. 2007-CVQ-001680-D3
                             Honorable Michael P. Peden, Judge Presiding 1

      DISSENTING OPINION TO MAJORITY OPINION ON MOTION FOR EN BANC
                            RECONSIDERATION

Opinion by: Steven C. Hilbig, Justice
Dissenting Opinion by: Marialyn Barnard, Justice, joined by Sandee Bryan Marion, Justice

Sitting en banc: Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Sandee Bryan Marion, Justice
                 Phylis J. Speedlin, Justice
                 Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: April 11, 2012

           Because I find Webb County’s lack of transparency and accountability in the bidding

process troubling and disagree with the majority’s holding that Webb County’s sale of the

property was proper, in compliance with the statute, and based on legislative intent, I dissent to

the majority’s opinion on motion for en banc reconsideration. Reversal and remand is, in my

opinion, mandated because the method of sale used in this case does not conform to standard

business practices and offends notions of fair play, Collins v. County of El Paso does not support



1
    The Honorable Michael P. Peden, sitting by assignment.
Dissenting Opinion                                                                   04-10-00324-CV


the conclusion for which it is cited, but most importantly, there was more than a scintilla of

evidence produced by Killam Ranch Properties, Ltd. in response to Webb County’s motion for

summary judgment.

        The Texas Local Government Code provides county governments with two options for

selling real property via a sealed bid process. See TEX. LOC. GOV’T CODE ANN. §§ 263.007,

272.001 (West Supp. 2011). Section 263.007 provides for “Sale or Lease of Real Property

Through Sealed-Bid Procedure,” while section 272.001 provides for “Notice of Sale or Exchange

of Land by Political Subdivision.” Id. Although the provisions share certain requirements, each

provision also contains requirements the other does not. Compare TEX. LOC. GOV’T CODE ANN.

§ 263.007 with TEX. LOC. GOV’T CODE ANN. § 272.001 (section 272.001 does not require local

governments to adopt county procedure for sale of real property, requiring only that local

governments comply with enumerated requirements, and does not require local governments to

establish minimum acceptable bid; section 263.007 requires both). In my opinion, a county

government may not “bait” potential bidders with one method, and then “switch” to the other

method after bids are received. It is also my opinion that the case relied upon by this court in its

opinion does not support the “bait and switch” methodology–in fact, the case does not address

such a situation.

        In Collins v. County of El Paso, the county published a “Notice to Bidders” in the local

paper without specifying the sale procedure to be used under the Local Government Code. 954

S.W.2d 137, 142-43 (Tex. App.—El Paso 1997, pet. denied). After a bid was accepted and the

earnest money check deposited, the county commissioner’s court, over the course of several

weeks, was unable to procure sufficient votes to authorize the county judge to sign the warranty

conveying the property. Id. at 143. Litigation ensued, and the County of El Paso asserted the



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Dissenting Opinion                                                                04-10-00324-CV


county commissioner’s court had failed to provide proper notice of the proposed land sale

pursuant to the mandates of section 263.007 of the Local Government Code. Id. The trial court

granted summary judgment, finding section 263.007 controlled the sale, and its requirements

were not met. Id. at 145.

        On appeal, the El Paso Court of Appeals reversed, holding there are two methods by

which a county may conduct a sale of real property–section 263.001, the alternate,

“discretionary” procedure, and section 272.001, the “default” procedure that provides minimally

sufficient procedures that counties must comply with when selling real property. Id. at 149-50.

Because there was no evidence the county intended the bid procedure to be governed by the

requirements of section 263.007, given the county’s failure to adopt a procedure for the sale and

its failure to reference either section 263.007 or section 272.001, the court held the “default”

provision of section 272.001 controlled. Id. The County argued that even though section

263.007 was not explicitly referenced in the published Notice to Bidders, it could be inferred by

the county’s actions in attempting to sell the property that the county intended the sale to be

conducted pursuant to section 263.007. Id. at 150. The appellate court rejected this argument,

stating “[t]he absence in the record of any indication that County Commissioners adopted a

procedure to sell real property by sealed bid renders moot a discussion of the second element

required in Section 263.007—the determination of a minimum bid under Section 263.007(c)(2).”

Id. at 149.

        The majority opinion in this case relies on Collins for the proposition that a county

commissioners court may choose to sell land under sections 263.007 or 272.001. And, if the

commissioners court does not choose which section applies, then “as long as the sale complied




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Dissenting Opinion                                                                 04-10-00324-CV


with the minimum statutory requirements of section 272.001, the sale was proper.” Majority Op.

at ____. However, Collins is inapposite here.

        Unlike Collins, there is evidence, sufficient to raise a fact question for purposes of

summary judgment, that the Webb County Commissioners Court adopted a procedure for the

sale pursuant to section 263.007: (1) the commissioners court officially established a minimum

bid of $10 million by a four to one vote; (2) the twenty-year veteran Webb County purchasing

agent testified he received direction and instruction from the commissioners court to sell the

property and that Webb County uses section 263.007 in its sales of real property, noting he never

remembered Webb County ever using section 272.001 for a sale; and (3) Webb County’s public

notice and bid specifications specifically referenced section 263.007, stating, “The property will

be sold through procedure pursuant to § 263.007, Texas Government Code. . . . The bid process

is pursuant to § 263,007.”

        Thus, unlike Collins, there is evidence the commissioners court intended the sale of the

property to be pursuant to section 263.007. Accordingly, there was no need to “default” to

section 272.001. In Collins there was no evidence the county intended to implement section

263.007. Here, however, there is more than a scintilla of evidence of the commissioners court’s

intent that the land sale proceed under the requirements of section 263.007. To conclude Webb

County’s intent to proceed under one provision as opposed to the other is irrelevant undermines

the clear legislative intent, shown by the enactment of two separate provisions with separate

requirements. If the majority’s opinion is correct, a county could advise bidders that the sale

would be structured under the more stringent requirements of section 263.007, but then decline

to be bound by such requirements upon whim. This completely undermines the confidence of

potential bidders and opens the door to improper bidding procedures.



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Dissenting Opinion                                                                      04-10-00324-CV


        Allowing counties to advertise one procedure and then change its proverbial mind is

tantamount to a “bait and switch” scheme. Simply put, a government entity should not be

authorized to accept bids under the requirements of one provision and then change the

requirements without basic notice and due process to the bidders.              To suggest otherwise

promotes a lack of accountability and transparency. Because I do not believe the Collins opinion

supports this interpretation and I do not believe this was the legislative intent, I dissent.

        The majority systematically attempts to eliminate evidence Killam Ranch presented in

support of its motion for summary judgment by holding such evidence was no evidence. First,

the majority holds the November 14, 2005 commissioners court “original minutes do not

constitute any evidence of intent” for a minimum bid because several years later, after the bid

was let and this suit was filed, the Webb County Commissioners Court decided to amend the

minutes to reflect no minimum bid was required. Majority Op. at ____. Second, the majority

holds the twenty-year veteran Webb County purchasing agent’s testimony that he specifically

has used section 263.007 and he could never remember using section 272.001 is no evidence of

the Webb County Commissioners Court intent. Id. Third, the majority concludes the public

notice and bid specifications that referenced section 263.007 stating “The property will be sold

through procedure pursuant to § 263.007, Texas Government Code. . . . The bid process is

pursuant to § 263.007” is no evidence of intent. Id. This is an appellate review of a summary

judgment motion, and there is clearly some evidence, meaning there are genuine issues of

material fact. The evidence cannot be discounted simply because Webb County attempted to

withdraw the bid and reform the procedure years later.

        Finally, the majority suggests this dissent is making “an equity argument.” Id. My

dissent is not based on equity; though I do believe allowing Webb County to “bait and switch”



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Dissenting Opinion                                                                04-10-00324-CV


its bidding procedures is unfair and may lead to inequitable results. Rather, my dissent is based

on application of the correct summary judgment standard of review and a proper interpretation of

Collins. Accordingly, I would hold the trial court erred in granting summary judgment in favor

of Webb County and remand the matter for further proceedings.


                                                Marialyn Barnard, Justice




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