                                                                                          ACCEPTED
                                                                                      03-16-00565-CV
                                                                                            13903401
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                11/21/2016 1:23:04 PM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                           Case No. 03-16-00586-CV
                           Case No. 03-16-00565-CV
                                                        FILED IN
                                                 3rd COURT OF APPEALS
                                                      AUSTIN, TEXAS
                        IN THE COURT OF APPEALS 11/21/2016 1:23:04 PM
          FOR THE    THIRD DISTRICT OF TEXAS AT AUSTIN
                                                     JEFFREY D. KYLE
                                                          Clerk



                CITY OF AUSTIN, TEXAS, and MARC A. OTT,
               in his official capacity as City Manager of the CITY
                                OF AUSTIN, TEXAS

                         Appellants and Cross-Appellees

                                       vs.

               UTILITY ASSOCIATES, INC., and MR. V. BRUCE
                     EVANS, a Resident of Austin, Texas

                         Appellees and Cross-Appellants


UTILITY ASSOCIATES, INC. & MR. V. BRUCE EVANS’ REPLY BRIEF
         Oral Argument Requested Pursuant to Tex. R. App. P. 9.4(g)


    Smith, Gambrell & Russell LLP        Jordan, Hyden, Womble, Culbreth &
    100 Congress Avenue, Suite 2000      Holzer, P.C.
    Austin, TX 78701                     Cielo Center Bldg. 1 - Suite #330,
    Tel: (512) 498-7617                  1250 S. Capital of Texas Hwy,
    Fax: (512) 879-5032                  Austin, TX 78746
    Email: pbarlow@sgrlaw.com            Tel: (361) 884-5678
    Email: pcrofton@sgrlaw.com           Fax: (361) 888-5555
    Email: bdeninger@sgrlaw.com          Email:       sjordan@jhwclaw.com
                                                      pholzer@jhwclaw.com
                                                      aortiz@jhwclaw.com

    Attorneys for Cross-Appellant        Attorneys for Cross-Appellant
    Utility Associates, Inc.             Mr. V. Bruce Evans

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                                                                      SGR/14718082.4
                             TABLE OF CONTENTS

SUMMARY OF ARGUMENTS                                                           5	  
ARGUMENT                                                                       7	  
 I.	   The Defendants Misconstrue the Facts and the Law Concerning
     Plaintiffs' LGC Claims                                                    7	  
        A.	   THE UDJA Affords Remedies Not Available Under the LGC           7	  
        B.	   Plaintiffs' Action Is Primarily Declaratory In Nature           9	  
        C.	   The Defendants’ Misconduct Does Not Change The
             Declaratory Nature of the Action                                  10	  
        D.	   The Defendants Seek to Rewrite Texas Statutory and
             Decisional Law                                                    13	  
 II.	   Defendants Misconstrue the Facts and Law Concerning Plaintiffs’
     Ultra Vires Claims                                                        15	  
        A. The Evidence Shows the Defendants’ Ultra Vires Conduct              16	  
        B.	   The Defendants Now Dispute the Underlying Facts                 17	  
 III.	   The Recovery of Attorneys’ Fees is Necessary to Combat Public
     Corruption                                                                21	  
        A.	   The Defendants Seek to Avoid Public and Judicial Review
             of Their Current and Future Illegal and Corrupt Acts              22	  
        B.	   The Legislature Allows Corruption Fighters to Recover
             Attorneys’ Fees                                                   24	  
        C.	   Plaintiffs Have Saved Austin’s Taxpayers Significantly More
             than the Fees in this Matter                                      24	  
 IV.	   Conclusion                                                            26	  
 V.	   Prayer For Relief                                                      27	  




                                     Page 2 of 30
                                                                          SGR/14718082.4
                                   TABLE OF AUTHORITIES

Cases	  
Camarena v. Tex. Employment Com’n,
  754 S.W.2d 149 (Tex. 1988)................................................................................ 13
City of El Paso v. Heinrich,
  284 S.W.3d 366 (Tex. 2009)................................................................................ 16
City of New Braunfels v. Carowest Land, Ltd.,
  432 S.W.3d 501 (Tex. App. Austin 2014) ........................................................... 15
City of Round Rock v. Whiteaker,
  241 S.W.3d 609 (Tex. App. Austin 2007) ........................................................... 19
Crosstex Energy Servs., L.P. v. Pro Plus, Inc.,
  430 S.W.3d 384 (Tex. 2014)................................................................................ 22
Gattis v. Duty,
  349 S.W.3d 193 (Tex. App. Austin 2011) ........................................................... 26
Guadalupe-Blanco River Auth. v. Tex. A.G.,
  2015 WL 868871 (Tex. App. Austin Feb. 26, 2015) ............................................. 8
Helena Chem. Co. v. Wilkins,
  47 S.W.3d 486 (Tex. 2001)……………………………………………………..20
Houston Belt & Terminal R.R. Co. v. City of Houston,
  478 S.W.3d 154, 163 (Tex. 2016)........................................................................ 21
In re City of Corpus Christi,
  2012 WL 3755604 (Tex. App. Corpus Christi Aug. 29, 2012) ........................... 12
In re Continental Airlines, Inc.,
  988 S.W.2d 733 (Tex. 1988).............................................................................. 7, 9
In re State,
  159 S.W.3d 203 (Tex. App. Austin 2005) ............................................................. 7
Kassen v. Hatley,
  887 S.W.2d 4 (Tex. 1994).................................................................................... 19
Labrado v. County of El Paso,
  132 S.W.3d 581 (Tex. App. El Paso 2004).................................................... 13, 19
Lee v. Mitchell,
  23 S.W.3d 209 (Tex. App. Dallas 2000) ............................................................. 22
MBP Corp. v. Bd. of Trustees of Galveston Wharves,
  297 S.W.3d 483 (Tex. App. Houston 2009) ........................................................ 18
Park v. Escalera Ranch Owners’ Ass’n., Inc.,
  457 S.W.3d 571 (Tex. App. Austin 2015)………………………...……………20
Patel v. Tex. Dept. of Licensing and Regulation,
  469 S.W.3d 69 (Tex. 2015).................................................................................. 11


                                                 Page 3 of 30
                                                                                                  SGR/14718082.4
Securtec, Inc. v. County of Gregg,
  106 S.W.3d 803 ................................................................................................... 19
Securtec, Inc. v. County of Gregg,
  106 S.W.3d 803 (Tex. App. Texarkana 2003) ..................................................... 13
Souder v. Cannon,
  235 S.W.3d 841 (Tex. App. Fort Worth 2007) .................................................... 19
State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez,
  82 S.W.3d 322 (Tex. 2002).................................................................................. 27
Steffel v. Thompson,
  415 U.S. 452 (1974) ........................................................................................... 7, 8
Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
  852 S.W.2d 440 (Tex. 1993)................................................................................ 17
Tex. Dep’t of Parks & Wildlife v. Miranda,
  133 S.W.3d 217 (Tex. 2004)................................................................................ 18
Tex. Educ. Agency v. Leeper,
  893 S.W.2d 432 (Tex. 1994)................................................................................ 26
Walter E. Heller & Co. v. Barnes,
  412 S.W.2d 747 (Tex. Civ. App. El Paso 1967) .................................................. 12
Ward v. Lamar Univ.,
  484 S.W.3d 440 (Tex. App. Houston 2016) ........................................................ 14

Statutes	  
Tex. Civ. Prac. & Rem. Code § 37.002 ............................................................... 6, 24
Tex. Civ. Prac. & Rem. Code § 37.009 ................................................................... 22
Tex. Gov’t Code § 1205.001 et seq. .......................................................................... 8
Tex. Gov’t Code § 1205.061 ..................................................................................... 8
Tex. Gov’t Code § 1205.151 ..................................................................................... 8
Tex. Gov’t Code § 311.016 ..................................................................................... 19
Tex. Gov’t Code § 552.323 ..................................................................................... 22
Tex. Hum. Res. Code § 36.110 ............................................................................... 22
Tex. Loc. Gov’t Code § 252.061 ......................................................................passim
Tex. Loc. Gov't Code § 252.043(h) ......................................................................... 18

Other Authorities	  
Uniform Declaratory Judgments Act, Prefatory Note (Unif. Law Com’n 1922) . 6, 7




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                                                                                                       SGR/14718082.4
                         SUMMARY OF ARGUMENTS

      The Trial Court erred in granting the Defendants’ Plea to the Jurisdiction

(“PTJ”) against Plaintiffs’ claims under the Uniform Declaratory Judgment Act

(“UDJA”). The Defendants’ arguments to the contrary seek to overturn almost 100

years of settled law by arguing that Chapter 252 of the Texas Local Government

Code (“LGC”) authorizes the Trial Court to grant declaratory relief.              The

Defendants also impliedly yet erroneously argue that LGC chapter 252, when

combined with the Defendants’ intentional misconduct in signing the Contract

after this action was filed, changes the predominate nature of the Plaintiffs’ claims

from declaratory to injunctive.

      The Defendants likewise misconstrue the facts and the law concerning

Plaintiffs’ claims against the City Manager for ultra vires conduct.              The

Defendants dispute the material jurisdictional facts, thereby showing the PTJ

should not have been granted. The Defendants also misconstrue the scope of their

discretion under LGC chapter 252 to argue that they had the discretion to violate

the requirements of the competitive bid law.

      The Defendants arguments come down to one point – they seek to avoid

public and judicial review of their illegal procurement of body cameras, at the

expense of all Texas taxpayers and citizens. The Defendants seek to change the

law in a way that would thwart the Legislature’s intent to encourage citizens and


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                                                                         SGR/14718082.4
taxpayers to fight corruption by allowing corruption fighters to recover their costs

expended protecting the public. This case demonstrates the Legislature’s wisdom

through the $760,000 of taxpayer funds already saved and the well over $5 million

of total taxpayer funds that will be saved.

      Because this matter involves multiple statutory provisions and has already

been the subject of multiple contested hearings as well as a companion appeal by

Utility and Taxpayer – and pursuant to Tex. R. App. P. 39.7 – Plaintiffs request the

Court hear oral argument on this appeal.




                                     Page 6 of 30
                                                                        SGR/14718082.4
                                   ARGUMENT

 I.     The Defendants Misconstrue the Facts and the Law Concerning
        Plaintiffs’ LGC Claims

      A. The UDJA Affords Remedies Not Available Under the LGC

The Uniform Declaratory Judgments Act (“UDJA”) grants courts the authority to

issue declarations that “settle and afford relief from uncertainty and insecurity with

respect to rights, status and other legal relations.” Tex. Civ. Prac. & Rem. Code §

37.002. Prior to enactment of the UDJA, most states, including Texas, required a

party to have been injured in order to obtain relief. See Uniform Declaratory

Judgments Act, Prefatory Note, pg. 3 (Unif. Law Com’n 1922) (“[i]t is still a

primary rule of jurisdiction that until a party has been hurt, and has suffered loss,

he has no standing in court”).

        The UDJA changed the injury-first-litigate-second process by providing

courts with the prospective ability to “declare rights and duties so that parties may

guide themselves in the proper legal road, and, in fact, and in truth, avoid

litigation.” Id. at 5.   Consistent with the UDJA’s intent to allow prospective

determinations of rights, the UDJA does not include an enforcement remedy as it

orders nothing to be done. Steffel v. Thompson, 415 U.S. 452, 482 (1974) (“A

declaratory judgment is simply a statement of rights, not a binding order




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                                                                          SGR/14718082.4
supplemented by continuing sanctions.”)1 That enforcement remedy comes in the

form of ancillary injunctive relief to ensure that a party abides by a declaration

under the UDJA. In re Continental Airlines, Inc., 988 S.W.2d 733, 736 (Tex.

1988) (“[t]he mere possibility that a defendant will disobey the final [declaratory]

judgment of a court, causing it to enforce its judgment through injunction, does not

transform the suit into an injunction suit. . . .”)

       In contrast to the prospective nature of the UDJA, Tex. Loc. Gov’t Code

(“LGC”) § 252.061 addresses past misconduct by cities, i.e. after the taxpayers and

the disappointed bidders have “been hurt and [] suffered loss.” See Uniform

Declaratory Judgments Act, Prefatory Note, pg. 3 (Unif. Law Com’n 1922). LGC

§ 252.061, entitled “Injunctions,” empowers a court to enjoin a city from making

payments or otherwise performing under an illegal contract that has already been

entered into. Contrary to the assertion of the Defendants,2 LGC § 252.061 does not

authorize the court to provide declaratory relief, but rather to provide “coercive,”

i.e. injunctive, relief. (Cross-Appellees’ Brief, pg. 7). See Steffel, 415 U.S. at 471.

       The nature of UDJA is made clear by comparison with the other declaratory

judgment act adopted by the Legislature – the Public Security Declaratory

1
  Texas looks to cases interpreting the Federal Declaratory Judgment Act as authority for
interpreting the UDJA. See In re State, 159 S.W.3d 203, 207 (Tex. App. Austin 2005)
(explaining that Texas courts “look to federal case law because section 37.002(c) of the
declaratory judgment act compels us to construe the statute in harmony with federal law
concerning declaratory judgments.”).
2
  Defendants cite no authority for their contention that LGC § 252.061 authorizes a court to grant
declaratory relief. (Cross-Appellees’ Brief, p. 7).

                                          Page 8 of 30
                                                                                     SGR/14718082.4
Judgments Act.3 See Tex. Gov’t Code §§ 1205.001 - .152. Unlike the UDJA, the

EDJA expressly provides that a declaration under the EDJA “is a permanent

injunction” against any matter “that could have been raised in the action.” Tex.

Gov’t Code § 1205.151. The EDJA also authorizes the court to “enjoin the

commencement, prosecution, or maintenance” of any proceeding that might

interfere with the court’s ability to decide the matter. Tex. Gov’t Code § 1205.061.

Notably, the EDJA expressly provides the court the ability to issue prospective

declaratory relief, like the UDJA, and coercive remedial injunction relief like LGC

§ 252.061.

    B. Plaintiffs’ Action Is Primarily Declaratory In Nature

       The Plaintiffs seek declaratory relief that is not “purely or primarily

injunctive.” See In re Continental Airlines, 988 S.W.2d at 736 (“the injunction

venue statute applies only to suits in which the relief sought is purely or primarily

injunctive”). As set forth in their Amended Petition, Plaintiffs seek the following

declarations by the Court:

       1. That the Defendants “engaged in an improper procurement unauthorized
          by law;”

       2. That the award of the RFP to the higher priced and non-responsive bidder
          is void;



3
  The Public Security Declaratory Judgments Act is referred to herein as the Expedited
Declaratory Judgment Act (“EDJA”) as it is by Texas Courts. See generally Guadalupe-Blanco
River Auth. v. Tex. A.G., 2015 WL 868871 (Tex. App. Austin Feb. 26, 2015).

                                       Page 9 of 30
                                                                              SGR/14718082.4
        3. That the Contract be awarded to Utility as the highest scoring responsive
           bidder.

1 C.R. 189, ¶ 104.

        In addition to those declarations, the Plaintiffs’ Amended Petition also seeks

the following injunctive relief:

        1. Enjoin the Defendants from engaging in an illegal and improper
           procurement;

        2. Enjoin the Defendants from performing any aspect of the Contract;

        3. Enjoin the Defendants from cancelling the RFP;

        4. Require the Defendants to award the Contract to Utility.

1 C.R. 189, ¶ 87.

        Plaintiffs requested seven specific items of equitable relief, three which are

prospective declaratory relief not available under LGC § 252.061. Consequently,

Plaintiffs seek declaratory relief that is distinct from the injunctive relief requested

under LGC § 252.061. Defendants’ contention to the contrary misconstrues the

averments of the Amended Petition. (Cross-Appellees’ Brief p. 8-9 “[Plaintiffs]

claims under the UDJA are identical to those pursue [sic] under Chapter 252 [. .

.]”).

   C. The Defendants’ Misconduct Does Not Change The Declaratory Nature of
      the Action

        Plaintiff Utility’s original Petition was primarily a declaratory judgment

action because it sought: 1) a declaration that the Defendants had illegally awarded


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                                                                            SGR/14718082.4
the Contract to the non-responsible bidder Taser; and 2) ancillary injunctive relief

to prevent the Defendants from executing a contract with Taser. (Original Petition,

¶¶ 73 & 57) Utility sought injunctive relief because at the time Utility commenced

this action, the Defendants had not executed the Contract. 1 C.R. 13, ¶ 57. After

the lawsuit was filed and Utility notified the Defendants of the Trial Court’s intent

to schedule a mutually agreed date for the TRO hearing, the Defendants attempted

to strip the Court of jurisdiction by rushing to sign the Contract.4 2 R.R. 196-199.

       Importantly, the Court’s jurisdiction attached when Utility filed this action.

See Patel v. Tex. Dept. of Licensing and Regulation, 469 S.W.3d 69, 78 (Tex.

2015) (“standing is determined at the beginning of a case, and whether the relief

ultimately granted is the same for all parties is not determinative of the question”).

When Utility initiated this action, it could not seek injunctive relief under LGC §

252.061 because there was no contract of which the Trial Court could enjoin

performance. 1 C.R. 11, ¶ 57. Instead, Utility sought an order that the Defendants

be enjoined from signing the contract so that the Trial Court could grant the

declaratory relief sought. 1 C.R. 17.

       Upon being notified that the Trial Court was requesting available dates for a

hearing on Utility’s request for a TRO, the Defendants intentionally and in bad


4
  The relevant facts, including the testimony of the City’s Purchasing Officer concerning the
interruption of his vacation so that he could authorize the execution of the Contract, is explained
on pages 29-31 of Cross-Appellees’ Brief in the companion appeal to this one.

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                                                                                     SGR/14718082.4
faith attempted to thwart the Trial Court’s ability to review the Defendants’ illegal

award of the Contract. (Cross-Appellees’ Brief, pg. 7). The Defendants, upon the

advice of the City’s Law Department, interrupted the Purchasing Officer’s vacation

to obtain his authorization to hurriedly sign the Contract before the Trial Court

could enter a TRO. 2 R.R. 196-199. As a consequence of the “midnight signing”

of the Contract by Defendants, Taxpayer joined this action and Plaintiffs filed their

Amended Petition that for the first time sought under LGC § 252.061 that the Trial

Court enjoin the Defendants from performing the Contract which they had illicitly

signed. (Cross-Appellees’ Brief, pg. 7).

      Defendants’ misconduct after the filing of this action neither changes the

character of this action from predominately declaratory nor deprives the Plaintiffs

of their right to seek relief under the UDJA. 1 Supp. C.R. 3-5; see also In re City of

Corpus Christi, 2012 WL 3755604, *4 (Tex. App. Corpus Christi 2012) (“the main

purpose of the suit is to obtain a declaratory judgment establishing the boundaries

between two cities, and the temporary injunctive relief sought, that is, the

preservation of any collected taxes, is merely ancillary or adjunctive to that

relief”). Additionally, the Defendant’s misconduct estops them from raising the

argument that the Plaintiffs’ claims under the UDJA are pre-empted by a statute

that only became applicable due to the Defendants’ intentional, bad faith conduct.

Walter E. Heller & Co. v. Barnes, 412 S.W.2d 747, 753 (Tex. Civ. App. El Paso


                                    Page 12 of 30
                                                                          SGR/14718082.4
1967) (Citing the “well-known maxim that ‘He who comes into equity must come

with clean hands’ and [explaining that a litigant who has committed misconduct]

cannot place itself in the position of an ‘innocent person’ under the principle of

estoppel [that] when one of two innocent persons must suffer, the sufferer should

be the one whose confidence put into the hands of the wrongdoer the means of

doing the wrong.”

   D. The Defendants Seek to Rewrite Texas Statutory and Decisional Law

      Texas law concerning bid protests favors government entities, and most

cases involving bid protests are disposed of based on sovereign/governmental

immunity or mootness. Nevertheless, no reported Texas decision has dismissed a

bid protest claim under the UDJA based on the redundant remedy doctrine, and the

Defendants impliedly concede this point. (See Cross-Appellees’ Brief, pg. 11

“[t]hese cases [allowing a UDJA claim to proceed] generally reference purchasing,

bidding and the remedies available to challenge governmental procurements.”) In

contrast, in the reported bid protest decisions in which the Plaintiff established

jurisdiction, the UDJA claims have not only survived, in some instances the UDJA

attorney’s fees claim is the only part of the claim that survives. See Labrado v.

County of El Paso, 132 S.W.3d 581, 601 (Tex. App. El Paso 2004) (remanding the

case for further proceedings on bid protest claims for declaratory judgment and

attorney’s fees); Securtec, Inc. v. County of Gregg, 106 S.W.3d 803, 813 (Tex.


                                   Page 13 of 30
                                                                       SGR/14718082.4
App. Texarkana 2003) (plaintiff’s bid protest claim for declaratory judgment and

attorney’s fees were “live” and not “moot” even though construction of the project

was complete); see also Camarena v. Tex. Employment Com’n, 754 S.W.2d 149,

151 (Tex. 1988) (“live” issue of plaintiffs’ right to recover attorney’s fees

prevented mootness); Ward v. Lamar Univ., 484 S.W.3d 440, 451 (Tex. App.

Houston 2016) (plaintiff’s claim for declaratory relief was not moot because she

sought attorney’s fees under the UDJA).

       The Defendants invite this Court to rewrite this established law, without

citing any authority for so doing other than a misplaced belief the scope of the

relief under the UDJA is the same as that available under LGC § 252.061. (Cross-

Appellees’ Brief, pg. 11-15).5         However, while extending this invitation, the

Defendants do not disclose that in the Trial Court they argued that LGC Chapter

252 was inapplicable to the RFP and hence not relevant to this matter. 1 C.R. 384.

       The Defendants newly constructed argument on the scope of LGC chapter

252 is inconsistent with established Texas law as applied for almost 100 years:

              1. Since the adoption of the first competitive bidding statutes for
                 cities and counties in 1917, no reported decision has determined
                 that the competitive procurement law itself gives a right to
                 declaratory relief;



5
 In furtherance of this argument, the Defendants argue in their companion appeal that LGC §
252.061 pre-empts all other remedies that might otherwise apply to a claim of illegal or corrupt
contracting by a city. (Cross-Appellees’ Brief, pg. 6-11).

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             2. Since the adoption of the UDJA in 1947, no reported decision has
                held that relief under the UDJA is duplicative of the relief
                available under the competitive procurement laws;

             3. Since the adoption of the current competitive bid law in 1987
                (LGC chapters 252 (cities) and 262 (counties)), no reported
                decision has dismissed a taxpayer’s or unsuccessful bidder’s
                claims for declaratory relief under the UDJA on the basis that the
                LGC preempts those claims or that UDJA claims are redundant of
                those under the LGC;

             4. Since the adoption of the current competitive bid law in 1987
                (LGC chapters 252 (cities) and 262 (counties)), no reported
                decision has determined that statutes criminalizing bribery and
                other forms of corruption in public contracting are preempted by
                the LGC’s criminal remedial provisions;

             5. As recently as 2014, this Court determined that a UDJA claim can
                be asserted for violations of LGC Chapter 252. See City of New
                Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 533 (Tex. App.
                Austin 2014) (explaining that plaintiff’s claim for declaratory relief
                against city fell “squarely within chapter 252’s waiver of sovereign
                immunity [as] it seeks a declaration that the city violated chapter
                252 in regard to [a] contract, thereby rendering that contract void
                and unenforceable.”).

      The Trial Court erred in granting the PTJ against Plaintiffs’ claims under the

UDJA. This Court should reverse the Trial Court’s Order dismissing Plaintiffs’

UDJA claims and remand for a trial on the merits.

II.   Defendants Misconstrue the Facts and Law Concerning Plaintiffs’ Ultra
      Vires Claims

      The broad scope of sovereign/government immunity has given rise to the

ultra vires claim as a way to redress illegal conduct by public officials. City of El

Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009). Importantly, an ultra vires claim is


                                    Page 15 of 30
                                                                          SGR/14718082.4
limited to injunctive relief, or declaratory relief under the UDJA, because money

damages are not available. Id. at 376.

    A. The Evidence Shows the Defendants’ Ultra Vires Conduct

       The Plaintiffs pled, and offered evidence at the TI Hearing of, illegal

conduct by the Defendants, including:

       1. The Defendants failed to disqualify as non-responsive the Taser offer, as
          required by LGC § 252.043(h),6 even though that offer did not satisfy the
          Mandatory Technical Requirements of the RFP (3 R.R. 311-316);

       2. The Defendants failed to disqualify as non-responsive the Taser offer, as
          required by LGC § 252.043(h), even though that offer did not contain
          complete pricing as required by the RFP (3 R.R. 338-344);

       3. The Defendants failed to award the Contract, as required by LGC. §
          252.043(h), to the Offeror that submitted the responsive offer that
          provided the City with the best value.

    B. The Defendants Now Dispute the Underlying Facts

       The Trial Court was required to construe the facts, both those pled and those

offered as record evidence, and any inferences to be drawn from those facts in

favor of the Plaintiffs’ claims having jurisdiction. Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). The Defendants’ nevertheless

argue that the weight of the record evidence, and the inferences to be drawn from

that evidence, show the Plaintiffs’ claims fail on the merits: “the Plaintiffs have



6
  Pursuant to LGC § 252.043(h), if a municipality applies the competitive sealed proposals
requirement to a contract, it “must be awarded to the responsible offeror whose proposal is
determined to be the most advantageous to the municipality considering the relative importance
of price and the other evaluation factors” in the RFP.

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                                                                                 SGR/14718082.4
only offered self-serving statements and self-created documents that were given no

objective credibility by the trial court.” (Cross-Appellees’ Brief, pg. 22).

      The Defendants’ arguments demonstrate the existence of disputed

jurisdictional facts that go to the merits of the underlying claims that the

Defendants illegally awarded and executed a contract with a non-responsible

offeror. Simply put, a Trial Court errs if it grants a plea to the jurisdiction without

allowing the trier of fact to decide jurisdictional factual disputes. MBP Corp. v.

Bd. of Trustees of Galveston Wharves, 297 S.W.3d 483, 488 (Tex. App. Houston

2009) (“if the evidence reveals a fact question on the jurisdictional issue, we will

remand the dispute to be resolved by the fact-finder.”). As explained by the Texas

Supreme Court, “after the state asserts and supports with evidence that the trial

court lacks subject matter jurisdiction, we simply require the plaintiffs, when the

facts underlying the merits and subject matter jurisdiction are intertwined, to show

that there is a disputed material fact regarding the jurisdictional issue.” Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

   C. The Defendants Argue They Have the Discretion to Violate the Law

      Government officials are required to comply with the law at all times when

performing their official duties. Phrased differently, a government official does

not have the discretion to violate the law. See Kassen v. Hatley, 887 S.W.2d 4, 8

(Tex. 1994) [emphasis added] (“The purpose of official immunity is to insulate the


                                     Page 17 of 30
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functioning of government from the harassment of litigation, not to protect erring

officials.”); see also City of Round Rock v. Whiteaker, 241 S.W.3d 609, 628-629

(Tex. App. Austin 2007) (explaining that sovereign immunity does not extend to a

government official whose acts are illegal or unauthorized by law); Souder v.

Cannon, 235 S.W.3d 841, 854-858 (Tex. App. Fort Worth 2007) (explaining

improper conduct of city officials that was not protected by official immunity).

      LGC chapter 252 requires cities to follow proscribed procedures when

conducting a competitive procurement. In the context of a procurement using a

request for proposal, cities as well as the personnel acting on their behalf are

prohibited from awarding a contract to an offeror that does not meet the minimum

RFP requirements. LGC § 252.043(h) and Labrado at 598-599 (concluding that

requirements stated in request for bids were material); see also Securtec at 813

(finding that the LGC required the County Defendant to communicate in the RFP

all material terms, including its desire to entertain pricing revisions of pricing in

proposals, to ensure all bidders receive fair and equitable treatment). Additionally,

Chapter 252 provides that “the contract must be awarded to the responsible offeror

whose proposal is determined to be the most advantageous to the municipality

considering the relative importance of price and the other evaluation factors

included in the request for proposals.”        LGC § 252.043(h).     As the City’s

Purchasing Officer, Mr. Scarboro, testified:


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               Offers that do “not meet the mandatory requirements
               would not be – would not be compliant with the
               solicitation specifications, therefore nonresponsive.” 2
               R.R. 178.

This obligation to award the contract to the responsible offeror who provides the

best value is mandatory, not discretionary.7

       The Plaintiffs pled, and offered evidence showing that, the Defendants did

not comply with these mandatory requirements. The pled and proved facts show

that Utility and Taser submitted proposals. 1 C.R. 329-330. The Defendants

evaluated those proposals and determined that Taser did not meet the Mandatory

Technical Requirements and had not submitted complete pricing. 3 R.R. 311-316

and 338-344. The Defendants ranked the Offers and assessed Utility as the highest

ranked, responsive bidder, but nevertheless ranked Taser’s non-responsive Offer

higher despite these recognized defects in Taser’s Offer.8 1 C.R. 329-330.

       The Defendants’ “evaluation matrix” below shows the Defendants’ ranking

of Taser’s and Utility’s offers after the discretionary evaluations had been

completed:


7
  The governing body of a city has the right to reject any or all “bids.” LGC chapter 252
distinguishes between “proposals” which are submitted in response to an RFP, and “bids” which
are submitted in response to request for sealed bids. For purposes of this appeal, this distinction
is not relevant because the Austin City Council decide to award the Contract without purporting
to reject any of the Offers, including Utility’s Offer.
8
   The Defendants manipulated the ranking process by making after-the-fact reductions to
Utility’s score, to ensure that Taser’s Offer was ranked higher than Utility’s. However, the
Defendants’ improper manipulation of the ranking process is not relevant because Taser’s offer
is non-responsive, and the highest ranked responsive Offeror is Utility.

                                          Page 19 of 30
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(* in the chart above denotes Offers that are non-responsive). See 1 C.R. 330

(excerpt).9

       LGC chapter 252 provides that the Defendants “must” award the Contract to

the highest ranked, responsible Offeror. This requirement is not discretionary – it

is mandatory.10 Contrary to Defendants’ assertions, Plaintiffs do not seek to

interfere with Defendants’ exercise of discretion in ranking the Offers. (Cross-
9
   The above matrix also notes that Austin Ribbon – another Offeror – was disqualified and
ineligible for award.
10
   Texas courts look to the Texas Code Construction Act when construing statutory language.
Lee v. Mitchell, 23 S.W.3d 209, 212 (Tex. App. Dallas 2000). Pursuant to the Code Construction
Act, “May” creates discretionary authority or grants permission or a power whereas “Must”
creates or recognizes a condition precedent. See Tex. Gov’t Code § 311.016. Both this Court and
the Texas Supreme Court have stated “that “must” generally has a mandatory effect, creating a
duty or obligation.” Park v. Escalera Ranch Owners’ Ass’n., Inc., 457 S.W.3d 571, 588 (Tex.
App. Austin 2015) citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).

                                        Page 20 of 30
                                                                                  SGR/14718082.4
Appellees’ Brief pg. 16-20). Accordingly, Plaintiffs do not seek declaratory relief

concerning discretionary acts by the Defendants or relief that is otherwise

unavailable under the UDJA.11

       Plaintiffs simply seek a declaration that the Contract should be awarded to

Utility – the highest scoring responsible bidder – as illustrated by the version of

Defendants’ ‘evaluation matrix’ below that has been modified to comply with the

requirements imposed on the Defendants by LGC § 252.043(h):




(* in the chart above denotes Offers that are non-responsive).



11
   Houston Belt & Terminal R.R. Co. v. City of Houston, 478 S.W.3d 154, 163 (Tex. 2016)
(“[G]overnmental immunity bars suits complaining of an exercise of absolute discretion but not
suits complaining of either an officer’s failure to perform a ministerial act or an officer’s exercise
of judgment or limited discretion without reference to or in conflict with the constraints of the
law authorizing the official to act”).

                                           Page 21 of 30
                                                                                        SGR/14718082.4
          The Trial Court erred in granting the PTJ against Plaintiffs’ claims under the

UDJA. This Court should reverse the Trial Court’s Order dismissing Plaintiffs’

UDJA claims and remand for a trial on the merits.

III.      The Recovery of Attorneys’ Fees is Necessary to Combat Public
          Corruption

          Recently, public corruption in Texas has garnered significant and

widespread unflattering media coverage.12 This corruption squanders taxpayer

money, enriches corrupt public officials, and unfairly rewards contractors willing

to “pay to play.”13 Taxpayers and other victims of this corruption play a vital role

in identifying and stopping this illegal behavior. However, those who benefit from

the corruption strive to keep the public ignorant of and powerless to stop the illicit

conduct.

       A. The Defendants Seek to Avoid Public and Judicial Review of Their Current
          and Future Illegal and Corrupt Acts

          The Defendants have, throughout this case, tried to prevent judicial review

of the illegal process by which the City entered the Contract to purchase overpriced

and deficient body cameras from Taser. The Defendants repeatedly denied that the

12
   Katie Hall, Crystal City Mayor, City Manager Arrested in Public Corruption Raids, Austin
American Statesman, February 4, 2016 at http://www.statesman.com/news/crime--law/crystal-
city-mayor-city-manager-arrested-public-corruption-raids/KoJUcy17ClDXQFeP1ZwOJK/ (last
visited November 14, 2016); see also Corruption in a Small Texas Town, FBI News,
https://www.fbi.gov/news/stories/corruption-in-a-small-texas-town (last visited October 3,
2016).
13
   Matt Zapotosky, This Might be the Most Corrupt Little Town in America, Washington Post,
March 5, 2016 at https://www.washingtonpost.com/world/national-security/this-might-be-the-
most-corrupt-little-town-in-america/2016/03/05/341c21d2-dcac-11e5-81ae-
7491b9b9e7df_story.html (last visited November 14, 2016).

                                       Page 22 of 30
                                                                              SGR/14718082.4
Trial Court had jurisdiction, in the hope that the Trial Court would dismiss the

matter without the public having the opportunity to learn of the Defendants’ rigged

procurement process.

      The Defendants’ extraordinary efforts to avoid judicial review of their

conduct include:

      1. The midnight signing of the Contract in hopes of avoiding a TRO and
         mooting Utility’s claims;

      2. Arguing LGC chapter 252 did not apply to the RFP because this was an
         exempt public safety procurement, only to abandon that argument after
         Plaintiffs obtained a copy of the City’s Procurement Manual which
         established the Defendants did not follow any of the processes required
         to have a procurement exempted from LGC Chapter 252 (2 Supp. C.R.
         26-186 and 2 Supp. R.R. 28-34); and

      3. Arguing that LGC § 252.061 was inapplicable to this matter, only to
         abandon that argument and argue on appeal that LGC § 252.061 is
         applicable and limits Plaintiffs available remedies so that the Defendants
         can cancel the RFP and moot this action.

The Defendants’ ‘Stalingrad defense tactics’ demonstrate their intent to make this

case as difficult and expensive as possible in an effort to prevent Plaintiffs from

obtaining judicial review of the illegal procurement of the Contract with Taser.

However, any newly imposed judicial limits on Plaintiffs’ rights in this case will

limit the ability of all taxpayers’ and bidders’ victimized by future corrupt

procurements to obtain judicial review. Without judicial review, the citizens’ and

taxpayers’ means of holding their government accountable will be significantly

reduced, and there will be fewer checks on corrupt public officials.


                                    Page 23 of 30
                                                                        SGR/14718082.4
     B. The Legislature Allows Corruption Fighters to Recover Attorneys’ Fees

        The Legislature recognizes that public citizens and taxpayers who seek

judicial relief to fight corruption benefit the entire body politic. Accordingly, in

order to protect the public good, the Legislature affords such plaintiffs the ability

to recover their fees and expenses. Examples include:

             i.   Whistleblower claims – Tex. Educ. Agency v. Leeper, 893 S.W.2d
                  432 (Tex. 1994) (explaining that Texas’ “Whistleblower Act
                  expressly provides for waiver of immunity and for recovery of
                  attorneys’ fees”);

            ii.   Open Meeting Act claims – Gattis v. Duty, 349 S.W.3d 193, 202
                  (Tex. App. Austin 2011) (discussing that whether a party is entitled
                  to recover attorney’s fees under the Open Meetings Act “turns on
                  whether there has been a material alteration in the legal
                  relationship between the parties”);

           iii.   Open Records Act claims – see Tex. Gov’t Code § 552.323;

           iv.    UDJA claims – see Tex. Civ. Prac. & Rem. Code § 37.009; and

            v.    Medicaid Fraud claims – see Tex. Hum. Res. Code § 36.110.

     C. Plaintiffs Have Saved Austin’s Taxpayers Significantly More than the Fees
        in this Matter

        The wisdom of encouraging taxpayers and unsuccessful bidders to pursue

judicial relief for illegal procurement is demonstrated by this matter. The Plaintiffs

have, by filing this action, already saved the taxpayers of the City of Austin over

$762,000 dollars in connection with the body camera procurement.14 And if the


14
  See description of cuts to the City of Austin’s 2016-2017 Budget, available on the Austin City
Council website at: http://www.austintexas.gov/edims/document.cfm?id=263149 (last visited on
November 11, 2016).

                                         Page 24 of 30
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Plaintiffs prevail on the merits, the taxpayers of the City of Austin may save well

over $5 million dollars.15

       While admittedly this Court’s role is not to review the merits of the

Plaintiffs’ claims, this Court is charged with interpreting the Legislature’s

enactments of laws that provide citizens and taxpayers with checks on illegal

contracting by public officials. See State ex rel. State Dep’t of Highways & Pub.

Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) [internal citations omitted]

(explaining that when Texas courts interpret statutory language “we try to

determine and give effect to the Legislature’s intent [and] determine legislative

intent from the entire act and not just from isolated portions.”) There can be no

debate that the Legislature intended to provide taxpayers with tools to stop, and in

appropriate circumstances to reverse, illegal and wasteful spending by city

officials. Even the Defendants now concede that one of those tools is LGC §

252.061.

       But as repeatedly determined by the courts, another of those tools is the

UDJA, and with it the right of plaintiffs to seek to recover their costs expended in

15
  On June 23, 2016, the City Council approved an approximate total cost of $17.2M for body-
cameras/services (comprised of approximately $12.2M for body-cameras from Taser pursuant to
the Contract and approximately $5M for another contract under a separate procurement for
iPhones from AT&T which are required to supplement the body-cameras provided by Taser in
order to satisfy all the Mandatory Technical Requirements of the RFP). 1 C.R. 139-140.
However, Utility’s offer – which satisfied ALL of the requirements in the RFP and did not
require any additional contracts – was less than the Taser Offer itself, let alone the Taser Offer
and the iPhone contract. Thus, if the Contract is awarded to Utility the City will save well over
$5M. 2 R.R. 89-93.

                                          Page 25 of 30
                                                                                     SGR/14718082.4
protecting the public good. Importantly, the UDJA does not provide a plaintiff

with a right to recover its fees and costs. Rather, the UDJA authorizes a court to

exercise its discretion to award fees as is “equitable and just” to either the plaintiff

or the defendant. See UDJA § 37.009.

      Trial courts are in the best position to determine when it is equitable and just

to allow a plaintiff to recover its costs expended saving taxpayer money.              A

judicially imposed change in the current law concerning a taxpayer’s ability to

recover its costs fighting corruption will thwart the Legislature’s intent, and will

beget more corruption and wasteful spending of taxpayer money. The Defendants

invite this Court to change established law for the sole purpose of shielding their

current and future improper acts from judicial scrutiny. This Court should reject

that invitation so as to help protect all Texans from public corruption.

IV.   Conclusion

      The Trial Court erred in dismissing Plaintiffs’ claims under the UDJA. The

Plaintiffs’ claims are primarily declaratory in nature, and Plaintiffs’ request for

ancillary injunctive relief under LGC § 252.061 does not affect the declaratory

nature of Plaintiffs’ claims.

      The Trial Court also erred in dismissing Plaintiffs’ claims under the UDJA

relative to the City Manager’s ultra vires conduct. The Defendants failed to follow




                                     Page 26 of 30
                                                                            SGR/14718082.4
the procedures mandated by LGC chapter 252, and the Defendants do not have the

discretion to violate those legal requirements.

      The Trial Court’s dismissal of Plaintiffs’ UDJA claim for attorney’s fees

will have a chilling effect on citizens and taxpayers throughout the state. This

effect will thwart the Legislature’s intent to fight corruption and embolden public

officials to waste taxpayer money protected from public and judicial scrutiny.

Accordingly, this Court should reverse the Trial Court’s dismissal of Plaintiff’s

UDJA claims with prejudice.

V.    Prayer For Relief

      WHEREFORE, Plaintiffs, Utility Associates, Inc. and Mr. V. Bruce

Evans, pray that this Court reverse the portion of the Trial Court’s Order

granting the Defendants’ Plea to the Jurisdiction as to Plaintiffs’ claims under

the UDJA, and remand this case for further proceedings.

                   Respectfully submitted this 21st day of November, 2016,

                          Smith, Gambrell & Russell LLP
                          100 Congress Ave., Suite 2000
                          Austin, TX 78701
                          Tel: (512) 498-7617
                          Fax: (512) 879-5032
                          Email:pbarlow@sgrlaw.com
                                 pcrofton@sgrlaw.com
                                 bdeninger@sgrlaw.com

                                       By:     /s/ Peter B. Barlow
                                               Peter B. Barlow, Esq.
                                               TX Bar No.: 24098860

                                     Page 27 of 30
                                                                        SGR/14718082.4
                         Peter M. Crofton, Esq.
                         GA Bar No.: 197122
                         Admitted Pro Hac Vice
                         Benjamin P. Deninger, Esq.
                         GA Bar No.: 549925
                         Pro Hac Vice Application Pending

Attorneys for Cross-Appellant Utility Associates, Inc.


      Jordan, Hyden, Womble, Culbreth & Holzer, P.C.
      Cielo Center Bldg. 1 - Suite #330,
      1250 S. Capital of Texas Hwy
      Austin, Texas 78746
      Tel: (361) 884-5678
      Fax: (361) 888-5555
      Email:sjordan@jhwclaw.com
            pholzer@jhwclaw.com
            aortiz@jhwclaw.com

                  By:    /s/ Shelby A. Jordan
                         Shelby A. Jordan
                         St. Bar No. 11016700
                         Antonio Ortiz
                         St. Bar No. 24074839

Attorneys for Counter-Appellant Mr. V. Bruce Evans




               Page 28 of 30
                                                  SGR/14718082.4
       CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

      This is to certify that this document complies with the applicable word count
requirements in Tex. R. App. P. 9.4 and contains 6,338 words.

                                      /s/ Shelby A. Jordan
                                      Shelby A. Jordan




                                   Page 29 of 30
                                                                        SGR/14718082.4
                          CERTIFICATE OF SERVICE

       This is to certify that I served a copy of the foregoing on all parties, or their
attorneys of record, in compliance with the Texas Rules of Appellate Procedure,
this 21st day of November, 2016.

VIA Electronic Mail & E-Services to:

Matthew W. Tynan
Matthew.tynan@austintexas.gov
City of Austin-Law Department
Post Office Box 1546
Austin, Texas 78767-1546
Tel: (512) 974-2185
Fax: (512) 974-1311

ATTORNEYS FOR DEFENDANTS

                                        /s/ Shelby A. Jordan
                                        Shelby A. Jordan




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                                                                            SGR/14718082.4
