                                                                                         ACCEPTED
                                                                                     13-15-00218-CV
                                                                     THIRTEENTH COURT OF APPEALS
                                                                            CORPUS CHRISTI, TEXAS
                                                                                6/24/2015 4:54:59 PM
                                                                              CECILE FOY GSANGER
                                                                                              CLERK

                            NO. 13-15-00218-CV

    IN THE THIRTEENTH COURT OF APPEALS DISTRICT    OFINTEXAS-
                                                FILED
                                         13th COURT OF APPEALS
                  CORPUS CHRISTI-EDINBURG
                                      CORPUS CHRISTI/EDINBURG, TEXAS
                                                      6/24/2015 4:54:59 PM
                                                       CECILE 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


   On Appeal from the 444th Judicial District Court of Cameron County, Texas
                        Cause No. 2015-DCL-02342


     APPELLANT GUILLERMO TORRES’, INDIVIDUALLY, BRIEF



Frank E. Pérez
State Bar No. 15776540
Frank E. Pérez & Associates, P.C.
300 Mexico Boulevard
Brownsville, Texas 78520
Telephone: (956) 504-5403
Facsimile: (956) 504-5991
E-mail: fperez@feperezandassociates.com

ATTORNEY FOR APPELLANT
GUILLERMO TORRES, INDIVIDUALLY

ORAL ARGUMENT REQUESTED
   ______________________________________________________________

               A. INDENTITY OF PARTIES AND COUNSEL
__________________________________________________________________

      Pursuant to Tex. R. App.P.38.1(a), Guillermo Torres, Individually,

Appellant herein, certifies that the following is a complete list of all parties and the

names and addresses of all counsel.

Appellant

      City of Port Isabel, Texas

Appellant’s Counsel

      Robert L. Collins
      State Bar No. 04618100
      Audrey Guthrie
      State Bar No. 24083116
      Robert L. Collins & Associates
      P.O. Box 7726
      Houston, Texas 77270-7726
      Telephone: (713) 467-8884
      Facsimile: (713) 467-8883
      E-mail: houstonlaw1@aol.com
      E-mail: theaudlawyer@icloud.com

Appellant

      Maria De Jesus Garza

Appellant’s Counsel

      Michael R. Cowen
      State Bar No. 00795306
      The Cowen Law Group
      62 E. Price Road
      Brownsville, Texas 78521
                                           ii
     Telephone: (956) 541-4981
     Facsimile: (956) 504-3674
     E-mail: michael@cowenlaw.com

Appellant

     Joe E. Vega

Appellant’s Counsel

     Michael R. Cowen
     State 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

Appellant

     Guillermo Torres, Individually

Appellant’s Counsel

     Frank E. Pérez
     State Bar No. 15776540
     Frank E. Perez & Associates, P.C.
     300 Mexico Boulevard
     Brownsville, Texas 78520
     Telephone: (956) 504-5403
     Facsimile: (956) 504-5991
     E-mail: fperez@feperezandassociates.com

Appellee

     Juan Jose “JJ” Zamora, Sr.




                                      iii
Appellee’s Counsel

     Mr. Gilberto Hinojosa
     State Bar No. 0970110
     Law Office of Gilberto Hinojosa & Associates, PC
     622 East St. Charles Street
     Brownsville, TX 78520
     Telephone: (956) 544-4218
     Facsimile: (956) 544-1335
     E-mail: ghinojosa@ghinojosalaw.net


Appellee

     Martin C. Cantu

Appellee’s Counsel

     Mr. Gilberto Hinojosa
     State Bar No. 0970110
     Law Office of Gilberto Hinojosa & Associates, PC
     622 East St. Charles Street
     Brownsville, TX 78520
     Telephone: (956) 544-4218
     Facsimile: (956) 544-1335
     E-mail: ghinojosa@ghinojosalaw.net




                                     iv
                          B. TABLE OF CONTENTS

A. Identity of Parties and Counsel…..……………………………...                   Page ii

B. Table of Contents……………………………………………....                             Page v

C. Index of Authorities……………….…………………………….                            Page vii

D. Statement of the Case……………………………………………                             Page viii

E.   Request for Oral Argument……………………………………...                       Page ix

F.   Issues Presented:                                                Page x

     Issue Number One- Trial Court Action after May 12, 2015 is Page x
                       Void

     Issue Number Two-The Denial of the Plea to the                   Page x
                      Jurisdiction is Erroneous

G. Statement of Facts………………………………………………..                             Page 1

H. Summary of the Argument………………………………………                             Page 3

     Issue Number One-Trial Court Action after May 12, 2015 is        Page 3
                      Void

     Issue Number Two-The Denial of the Plea to the Jurisdiction is   Page 3
                      Erroneous

I.   Argument ………………………………………………………..                                 Page 4

     Issue Number One-Trial Court Action after May 12, 2015 is Void Page 4

     Issue Number Two-The Denial of the Plea to the Jurisdiction is
                       Erroneous                                      Page 4

J.   Prayer………………………………………………………….....                                Page 7

K. Certificate of Compliance……………………………………….                          Page 8
                                        v
L.   Certificate of Service…………………………………………….                        Page 9

M. Appendix…………………………………………………………                                    Page 10
     Order Denying City of Port Isabel’s Plea to the Jurisdiction
     signed on April 24, 2015………………………………………..                    Tab A
     Tex. Civ. Prac. & Rem. Code §51.014…………………………..                 Tab B
     Plaintiffs’ Notice of Nonsuit without Prejudice filed on May 15, Tab C
     2015………………………………………………………………

     Plaintiffs’ Withdrawal of Plaintiffs’ Notice of Nonsuit without
     Prejudice and Request for Reinstatement filed on May 18, Tab D
     2015…………………………………………………………….

     Order Reinstating Plaintiffs’ Suit signed on May 18, 2015…….    Tab E
     Defendants’ Motion to Reconsider Plaintiffs’ Motion to
     Reinstate and to Deny Reinstatement filed on May 19, Tab F
     2015…………………………………………………………….

      Defendants’ Amended Motion to Reconsider Plaintiffs’ Motion
      to Reinstate and to Deny Reinstatement filed on June 1, Tab G
      2015…………………………………………………………….

     Plaintiffs’ Notice of Nonsuit without Prejudice of Guillermo Tab H
     Torres filed on June 10, 2015……………………………………

     Order of Dismissal without Prejudice of Guillermo Torres Tab I
     signed on June 15, 2015………………………………………….




                                      vi
                                C. INDEX OF AUTHORITIES


CASES                                                                                               PAGE

Ballantyne v Champion Builders, Inc.,
      144 S.W. 3d 417 (Tex. 2004) ......................................................................6

Bland Independent School District v. Blue,
      34 S.W.3d 547 (Tex. 2000). ........................................................................4

In re Marriage of J.B.
      326 S.W.3d 654, 662 (Tex.App.-Dallas 2010, pet. argued 11-5-13) ..........4

Kassen v. Hatley,
     887 S.W. 2d 4 (Tex. 1994) ..........................................................................7

Telthorster v. Tennell,
      92 S.W.3d 457 (Tex. 2002) .........................................................................6

Texas Ass'n of Bus. v. Texas Air Control Bd.,
      852 S.W.2d 440, 446 (Tex.1993) ................................................................5

Texas Department of Criminal Justice v. Miller,
      51 S.W.3d 583, 587 (Tex. 2001) .............................................................4, 5

Texas Department of Transportation v. Jones,
      8 S.W.3d 636 (Tex. 1999) ..........................................................................4

Texas Natural Resource & Conservation Comm'n v. White
      46 S.W.3d. 864, 868 (Tex.2001) .................................................................6

STATUTES

Tex. Civ. Prac. & Rem. Code §51.014 ......................................................... 2, 3, 4




                                                     vii
                       D. STATEMENT OF THE CASE

      This case is a suit for permanent injunction and declaratory relief after a vote

by the City Commission of the City of Port Isabel, Texas to vacate two City

Commission seats (those of J. J. Zamora and Martin Cantu) pursuant to the City

Charter section 2.02 and 2.03.




                                         viii
                     E. REQUEST FOR ORAL ARGUMENT

      Pursuant to Rule 38.1(e) of the Texas Rules of Appellate Procedure,

Appellant Guillermo Torres requests that the Court grant oral argument for the

following reasons:

      a.    Oral argument would give the Court a more complete understanding

            of the facts presented in this appeal; and

      b.    Oral argument would significantly aid the Court in deciding this case.




                                         ix
                             F. ISSUES PRESENTED

Issue Number One-Trial Court Action after May 12, 2015 is Void

      Any action taken by Zamora and Cantu in the trial court after May 12, 2015,

and all orders entered by the trial court after May 12, 2015 (the date City of Port

Isabel, Texas, Maria De Jesus Garza, Guillermo Torres, and Joe E. Vega filed their

interlocutory appeal and their Notice of Stay) is void, and Zamora and Cantu’s

claims against Guillermo Torres are pending and ripe for this Court to consider and

decide.

Issue Number Two-The Denial of the Plea to the Jurisdiction is Erroneous

      The trial court’s determination that City of Port Isabel, Texas, Maria De

Jesus Garza, Guillermo Torres, and Joe E. Vega’s Plea to the Jurisdiction should

be denied is erroneous because Zamora and Cantu’s mere references to statutes

that purport to waive governmental immunity or establish a state’s consent to be

sued are insufficient to confer jurisdiction on the trial court; and Zamora and Cantu

failed to introduce evidence to establish a waiver of sovereign immunity sufficient

to overcome a plea to the jurisdiction.




                                          x
                         G. STATEMENT OF FACTS

      Zamora and Cantu filed their Original Petition on April 15, 2015. (CR

001:2)

      City of Port Isabel, Texas, Maria De Jesus Garza, Guillermo Torres, and Joe

E. Vega filed their Plea to the Jurisdiction and Original Answer on April 20, 2015.

(CR: 001:23)

      Zamora and Cantu filed their Third Amended Petition on April 23, 2015.

(CR 001:90)

      The trial court held a hearing on City of Port Isabel, Texas, Maria De Jesus

Garza, Guillermo Torres, and Joe E. Vega’s Plea to the Jurisdiction and on Zamora

and Cantu’s Motion for Temporary Injunction on April 24, 2015. (RR: 1:1)

      On April 24, 2015 the trial court denied City of Port Isabel, Texas, Maria De

Jesus Garza, Guillermo Torres, and Joe E. Vega’s Plea to the Jurisdiction and

granted Zamora and Cantu’s Motion for Temporary Injunction. (RR: 1:121)

      On April 24, 2015 the trial court signed and entered its Order Denying City

of Port Isabel, Texas, Maria De Jesus Garza, Guillermo Torres, and Joe E. Vega’s

Plea to the Jurisdiction. (CR: 001:101) (App. Tab A)

      City of Port Isabel, Texas, Maria De Jesus Garza, Guillermo Torres, and Joe

E. Vega appealed the trial court’s order denying their plea to the jurisdiction on

May 12, 2015. (CR 001:102)


                                        -1-
      On May 12, 2015 the City of Port Isabel, Texas, Maria De Jesus Garza,

Guillermo Torres, and Joe E. Vega notified the trial court and the parties that all

matters in the trial court were stayed by virtue of the appeals, as provided in

§51.014 of the Texas Civil Practices and Remedies Code. (CR 001:110) (App. Tab

B)

      On May 15, 2015 Zamora and Cantu filed their nonsuit of City of Port

Isabel, Texas, Maria De Jesus Garza, Guillermo Torres, and Joe E. Vega. (App.

Tab C)

      On May 18, 2015 Zamora and Cantu filed their Withdrawal of their nonsuit

and motion to reinstate. (App. Tab D)

      The trial court granted this motion on that same date. (App. Tab E)

      On May 19, 2015 and June 1, 2015 City of Port Isabel, Texas, Maria De

Jesus Garza, Guillermo Torres, and Joe E. Vega filed their Motion to Reconsider

and Amended Motion to Reconsider, again advising the trial court and the parties

that all matters in the trial court were stayed by virtue of the appeals, as provided

in §51.014, CPRC. (App. Tabs F and G)

      On June 10, 2015 Zamora and Cantu filed their notice of nonsuit as to

Guillermo Torres. (App. Tab H)

      On June 15, 2015 the trial court granted this nonsuit. (App. Tab I)




                                         -2-
                     H. SUMMARY OF THE ARGUMENT

Issue Number One-Trial Court Action after May 12, 2015 is Void

      In the trial court, Zamora and Cantu attempted to nonsuit all claims against

Guillermo Torres twice. Zamora and Cantu withdrew their nonsuit after the first

time and asked for a reinstatement, which the trial court granted without a hearing.

Zamora and Cantu nonsuited their claims against Guillermo Torres again, which

the trial court granted without hearing. Each attempted and purported nonsuit was

filed after Guillermo Torres had filed his Notice of Appeal, after filing his Notice

of Stay pursuant to Section 51.014, C.P.R.C., and during the effective period of

the automatic stay. The nonsuits were, therefore, void.

Issue Number Two-The Denial of the Plea to the Jurisdiction is Erroneous

      Zamora and Cantu failed to plead or prove any facts sufficient to establish a

waiver of sovereign immunity, or the City of Port Isabel’s consent to be sued.

Zamora and Cantu’s live pleading in the trial court, their Third Amended Petition,

contains mere vague references to statutes and rules that do not suffice to confer

jurisdiction on the trial court. Further, Zamora and Cantu failed to introduce facts,

evidence, involving their particular case sufficient to allow the trial court to

determine whether immunity was waived or consent given.




                                         -3-
                                    I. ARGUMENT

Issue Number One-Trial Court Action after May 12, 2015 is Void

       Section 51.014(b), C.P.R.C., provides that an interlocutory appeal under

subsection (a)(8) stays the commencement of a trial in the trial court and all other

proceedings in the trial court pending resolution of the appeal. Therefore, any

action taken by Zamora and Cantu in the trial court after May 12, 2015, and all

orders entered by the trial court after May 12, 2015 (the date City of Port Isabel,

Texas, Maria De Jesus Garza, Guillermo Torres, and Joe E. Vega filed their

interlocutory appeal and their Notice of Stay) are void. See In re Marriage of J.B.,

326 S.W.3d 654, 662 (Tex.App.-Dallas 2010, pet. argued 11-5-13) ("An order

signed during a stay is a 'legal nullity.'").

       Each of the following cases involve a stay under §51.014, C.P.R.C., and its

nullifying effect of actions taken in violation of that stay.

       Zamora and Cantu’s claims against Guillermo Torres are pending.

Issue Number Two-The Denial of the Plea to the Jurisdiction is Erroneous

       The trial court’s determination that City of Port Isabel, Texas, Maria De

Jesus Garza, Guillermo Torres, and Joe E. Vega’s Plea to the Jurisdiction should

be denied is erroneous under the Texas Supreme Court’s holdings in Texas

Department of Transportation v. Jones, 8 S.W.3d 636 (Tex. 1999) (per curium);

Bland Independent School District v. Blue, 34 S.W.3d 547 (Tex. 2000); and Texas


                                            -4-
Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). In

those cases the Supreme Court has made clear that mere references to statutes that

purport to waive governmental immunity or establish a state’s consent to be sued

are insufficient to confer jurisdiction on the trial court. Zamora and Cantu’s Third

Amended Petition does not contain a paragraph alleging any particular

jurisdictional facts or law. (CR 001:90-100) Throughout Zamora and Cantu’s

pleadings, including their latest live pleadings (Plaintiffs’ Third Amended

Petition), Zamora and Cantu merely reference statutes they claim waive

governmental immunity or cite statutes they claim establish this state’s consent to

be sued. (CR 001:94; 95, consent, case law; 95, C.P.R.C.; 96, City Charter)

      However, Zamora and Cantu bear the greater burden of establishing, with

evidence, a waiver of sovereign immunity sufficient to overcome a plea to the

jurisdiction. In Miller, the Supreme Court stated that, after reviewing the terms of

the applicable statute purportedly conferring jurisdiction, the court must then,

“consider the particular facts of the case before us to determine whether it comes

within that scope.” Miller, 51 S.W.3d at 587. The Miller court went on to state

that a "court deciding a plea to the jurisdiction is not required to look solely to the

pleadings but may consider evidence and must do so when necessary to resolve the

jurisdictional issues raised." Therefore, to decide whether Jeannie Miller has

"affirmatively demonstrate[d] the court's jurisdiction to hear the cause," Texas


                                          -5-
Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993), "we

consider the facts alleged by the plaintiff, and to the extent it is relevant to the

jurisdictional issue, the evidence submitted by the parties." Texas Natural

Resource & Conservation Commission v. White, 46 S.W.3d. 864, 868 (Tex.2001).

Zamora and Cantu introduced no evidence sufficient to allow the trial court to

determine whether Zamora and Cantu had established subject matter jurisdiction.

      Appellant Torres respectfully submits that, contrary to Zamora and Cantu’s

bare assertions of statutes that purportedly confer jurisdiction, their pleadings

unequivocally establish, factually, that Torres acted in his official capacity only,

and therefore, Zamora and Cantu’s allegations actually negate the subject matter

jurisdiction. (CR 001:93) Torres submits that Plaintiffs’ Third Amended Petition

does not allege “individual” action by Torres. Indeed, during the hearing on April

24, 2015, Cantu affirmatively stated that at the same meeting of which Zamora and

Cantu now complain, he voted to oust Torres, but was acting in good faith as per

the City Charter. (RR 1:97, 104)

Official Immunity

      Zamora and Cantu allege that Torres acted as a Commissioner of the City of

Port Isabel. (RR 1:93) As such he was a government official. See Telthorster v.

Tennell, 92 S.W.3d 457 (Tex. 2002). Further, allegations establish that Torres’

acts were only discretionary and governmental. (RR 1:93) See Ballantyne v


                                         -6-
Champion Builders, Inc., 144 S.W. 3d 417 (Tex. 2004); and Kassen v. Hatley, 887

S.W. 2d 4 (Tex. 1994). Zamora and Cantu never alleged nor provided evidence

that Torres acted in any capacity other than as a Commissioner of the City of Port

Isabel.

      Zamora and Cantu, therefore, failed to satisfy their burden of establishing

that the trial court had subject matter jurisdiction over Torres in his individual

capacity; and the trial court’s denial of Torres’ plea to the jurisdiction was

erroneous.

Adoption of Brief Filed by Robert Collins

      Appellant Guillermo Torres adopts by reference the arguments made in the

brief filed by Robert Collins as attorney for Appellant City of Port Isabel.

                                    J. PRAYER

      Appellant Guillermo Torres asks that this Court reverse the trial court’s

denial of his Plea to the Jurisdiction, dismiss Zamora and Cantu’s claims against

him, find that Appellant is protected by the doctrines of official immunity, and for

such other and further relief to which Appellant Guillermo Torres may show

himself justly entitled.

                                       Respectfully submitted,
                                       FRANK E. PÉREZ & ASSOCIATES, P.C.

                                       By:        /s/ Frank E. Pérez
                                                Frank E. Pérez


                                          -7-
                                               State Bar No. 15776540
                                               300 Mexico Boulevard
                                               Brownsville, Texas 78520
                                               Telephone: (956) 504-5403
                                               Facsimile: (956) 504-5991
                                               ATTORNEY FOR APPELLANT
                                               GUILLERMO TORRES,
                                               INDIVIDUALLY


                    K. CERTIFICATE OF COMPLIANCE

      I hereby certify that Appellant Guillermo Torres’, Individually, Brief

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), because it contains 1,512 words, excluding any parts

exempted by Tex. R. App. P. 9.4(i)(1).

                                       /s/ Frank E. Pérez
                                     Frank E. Pérez & Associates, P.C.




                                         -8-
                       L. CERTIFICATE OF SERVICE

      I hereby certify that on this the 24th day of June 2015, a true and correct

copy of the foregoing instrument has been served upon counsel of record by the

following method:

      VIA E-SERVICE
      Mr. Gilbert Hinojosa
      Law Office of Gilberto Hinojosa & Associates, PC
      622 East St. Charles Street
      Brownsville, TX 78520
      Attorney for Appellees Juan Jose “JJ” Zamora
      and Martin C. Cantu

      VIA E-SERVICE
      Mr. Robert L. Collins
      Robert L. Collins & Associates
      P.O. Box 7726
      Houston, Texas 77270-7726
      Attorney for Appellants City of Port Isabel, Texas

      VIA E-SERVICE
      Mr. Michael R. Cowen
      The Cowen Law Group
      62 E. Price Road
      Brownsville, TX 78521
      Attorney for Appellants Joe E. Vega
      and Maria de Jesus Garza


                                        /s/ Frank E. Pérez
                                      Frank E. Pérez & Associates, P.C.




                                        -9-
                                M. APPENDIX

Order Denying City of Port Isabel’s Plea to the Jurisdiction signed on
April 24, 2015…………………………………………………...                                     Tab A
Tex. Civ. Prac. & Rem. Code §51.014……………………………..                         Tab B
Plaintiffs’ Notice of Nonsuit without Prejudice filed on May 15,
2015…………………………………………………………………….                                          Tab C
Plaintiffs’ Withdrawal of Plaintiffs’ Notice of Nonsuit without
Prejudice and Request for Reinstatement filed on May 18, 2015
…………………………………………………………………………                                             Tab D
Order Reinstating Plaintiffs’ Suit signed on May 18,
2015…………………………………………………………………..                                          Tab E
Defendants’ Motion to Reconsider Plaintiffs’ Motion to Reinstate and
to Deny Reinstatement filed on May 19, 2015……………………..                    Tab F
Defendants’ Amended Motion to Reconsider Plaintiffs’ Motion to
Reinstate and to Deny Reinstatement filed on June 1,
2015…………………………………………………………………..                                          Tab G
Plaintiffs’ Notice of Nonsuit without Prejudice of Guillermo Torres
filed on June 10, 2015…………………………………………………                                Tab H
Order of Dismissal without Prejudice of Guillermo Torres signed on
June 15, 2015………………………………………………………….                                     Tab I




                                       - 10 -
