City of Leon Valley, Texas, Unknown Employee(s) of City of Leon Valley, and Irene Baldridge v. Wm. Rancher Estates Joint Venture, Rafael Alfaro, Jose Alfaro, Carman Alfaro, Daniel Bee, Robert Caldwell, Anne Caldwell, Earl Doderer, Sylvia Doderer, James Dowdy, Betty Dowdy, Issac Elizondo, Suzanne Elizondo, Roberto Galindo, Erma Galindo

ACCEPTED
04-14-00542-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/5/2015 7:32:09 PM
KEITH HOTTLE
CLERK

CASE NO. 04-14-00542-CV
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE COURT OF APPEALS 03/5/2015 7:32:09 PM
FOR THE FOURTH JUDICIAL CIRCUITKEITH E. HOTTLE
SAN ANTONIO, TEXAS Clerk

CITY OF LEON VALLEY, TEXAS, UNKNOWN
EMPLOYEE(S) OF CITY OF LEON VALLEY and
IRENE BALDRIDGE
Appellants

v.

WM. RANCHER ESTATES JOINT VENTURE,
RAFAEL ALFARO, JOSE ALFARO, CARMAN ALFARO,
DANIEL BEE, ROBERT CALDWELL, ANNE CALDWELL,
DEFERENCE SERVICE BUSINESS, INC., EARL DODERER,
SYLVIA DODERER, JAMES DOWDY, BETTY DOWDY,
ISAAC ELIZONDO, SUZANNE ELINZONDO, ROBERTO GALINDO,
ERMA GALINDO, SHIRL JACKSON, ANNE JACKSON, AND
RICARDO A. PADILLA
Appellees

APPELLEES' BRIEF

O. RENE DIAZ
DIAZ JAKOB, LLC
THE HISTORIC MILAM BUILDING
115 East Travis, Suite 333
San Antonio, Texas 78205
Telephone: (210) 226-4500
Facsimile: (210) 226-4502
ORD@diazjakob.com

COUNSEL FOR APPELLEES

ORAL ARGUMENT REQUESTED
 IDENTITY OF COUNSEL

Appellees / Trial Court Plaintiffs:

Wm. Rancher Estates Joint Venture
Rafael Alfaro
Jose Alfaro
Carman Alfaro
Daniel S. Bee
Robert Caldwell
Anne Caldwell
Deference Service Business, Inc.
Earl Doderer
Sylvia Doderer
James Dowdy
Betty Dowdy
Isaac Elizondo
Suzanne Elizondo
Roberto Galindo
Erma Galindo
Shirl Jackson
Anne Jackson
Ricardo A. Padilla

Counsel for Appellees / Trial Court Plaintiffs:

0. RENE DIAZ, ESQ.
JASON J. JAKOB, ESQ.
DIAZ JAKOB, LLC
THE HISTORIC MILAM BUILDING
115 E. Travis Street, Ste. 333
San Antonio, Texas 78205
Telephone: (210) 226-4500
Facsimile: (210) 226-4502
ORD@diazjakob.com
JJJ@diazjakob.com

2
Appellants / Trial Court Defendants:

City of Leon Valley, Texas
Unknown Employee(s) of City of Leon Valley
and Irene Baldridge

Counsel for the Appellants / Trial Court Defendants:

Patrick C. Bernal
Clarissa M. Rodriguez
Denton Navarro Rocha Bernal Hyde & Zech
A Professional Corporation
2517 N. Main Avenue
San Antonio, Texas 78212
Telephone: (210) 227-3243
Facsimile: (210) 225-4481
patrick.bemal@rampage-sa.com
clarissa.rodriguez@rampage-sa.com

3
 TABLE OF CONTENTS

IDENTITY OF COUNSEL .......................................................................................2

TABLE OF CONTENTS ...........................................................................................4

TABLE OF AUTHORITIES .....................................................................................6

STATEMENT OF THE CASE...............................................................................11

ISSUES PRESENTED...............................................................................................12

STATEMENT REGARDING ORAL ARGUMENT ................................................12

STATEMENT OF FACTS ......................................................................................12

ARGUMENT & AUTHORITIES ...........................................................................20

RESPONSE TO ISSUE NO. 1: The trial court properly denied the Plea to the
Jurisdiction because the Appellees claims fall within recognized constitutional or
statutory exceptions to the City's governmental immunity. ……………………….….27

RESPONSE TO ISSUE NO. 2: The trial court properly denied the City's plea to the
jurisdiction because Appellees pleaded and proved with competent evidence numerous
violations the Texas Open Meetings Act, and the evidence submitted by Appellees on
disputed jurisdictional issues must be taken as true, with all doubts resolved in favor of
the Appellees. …………………………………………………………….……………32.
RESPONSE TO ISSUE NO. 3:

The trial court properly denied the City of Leon Valley's Plea to the Jurisdiction because
Appellees have properly invoked the Court's jurisdiction for constitutional, nuisance,
declaratory judgment and tort claims……………………………………………..….…60
RESPONSE TO ISSUE NO. 4
Irene Baldridges’ conflict of interest, and other activities outside the scope of her
legislative duties are recognized exceptions to her legislative immunity………….......63
CONCLUSION ...........................................................................................................69

PRAYER ..................................................................................................................70

CERTIFICATE OF SERVICE ..................................................................................71
4
 TABLE OF AUTHORITIES

Cases

AN Collision Center v. Town of Addison, 310 S.W. 3d 191
(Tex. App.-Dallas 2010, no pet.) ..........................................................23, 24

Bland ISD v. Blue, 34 S.W.3d 547 (Tex. 2000).........................................................8

City of Dallas v. Jennings, 142 S.W. 3d 310 (Tex. 2004) .......................................23

City of Dallas v. Jill Herz, P.C., 363 S.W.3d 896
(Tex. App.-Dallas 2012, no pet.) ................................................................13

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ......................................25

City of Houston v. Williams, 216 S.W.3d 827 (Tex. 2007) .....................................26

City of Oak Ridge N v. Mendes, 339 S.W.3d 222
(Tex. App.-Beaumont 2011, no pet.) ............................................................8

Continental Coffee Prods. v. Cazarez, 937 S.W.2d 444 (Tex. 1996)....................7, 8

Dalon v. City of DeSoto, 852 S.W. 2d 530
(Tex. App.-Dallas 1992, writ denied) ...................................................24, 26

Galveston Racquet Club, Inc. v. City of Galveston, 178 S.W.3d 167
(Tex. App.-Houston [1st Dist.] 2005, no pet.) ......................................28, 29

Hernandez v. City of Lubbock, 253 S.W.3d 750
(Tex. App.-Amarillo 2007, no pet.) ............................................................28

Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) ....30, 31, 32, 34

Love Terminal Partners, L.P. v. City of Dallas, 256 S.W.3d 893
(Tex. App.-Dallas 2008, no pet.) ................................................................15

In re Perry, 60 S.W.3d 857 (Tex. 2001)..............................................................9, 31

Salazar v. Morales, 900 S.W.2d 329 (Tex. App.-Austin 1995, no writ) ................9

Salazar v. Wilson, No. 08-13-00171-CV, 2014 WL 1940673
 (Tex. App.-El Paso, May 14,2014, no pet. 11.) .............................................9

San Antonio Water System v. Overby, 429 S.W.3d 716
(Tex. App.-San Antonio, 2014, no pet.) .....................................................29

Sanchez v. Board of Adjustment for City of San Antonio,
387 S.W.3d 745 (Tex. App.-El Paso 2012, reh'g den.) ........................l7, 18

Smith v. City of League City, 338 S.W.3d 114
(Tex. App.-Houston [14th Dist.] 2011, pet. ref'd)......................................22

Sosa v. City Of Corpus Christi, 739 S.W.32d 397
(Tex. App.-Corpus Christi 1987, writ den.)................................................21

State v. Holland, 453 S.W.2d 871 (Tex. Civ. App.-Tyler 1970, no writ)...............7

Tex. Ass 'n. of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993) .............7

Tex. Bay Cheny Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379
(Tex. App. -Fmi Wmih 2008, no pet.)..........................................................30

Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)......8, 9, 19

Tex. Natural Res. Conservation Comm 'n v. White,
46 S.W.3d 864 (Tex. 2001) .............................................................8, 9, 27, 28

WeatheJford v. City of San Marcos, Tex., 157 S.W.3d 473
(Tex. App.-Austin 2004, rev. den.).............................................................31

Wichita Falls State Hasp. v. Taylor, 106 S.W.3d 692 (Tex. 2003)...................12, 13

8
Statutes

Tex. Civ. Prac. & Rem. Code Ann. §101.021 (West 1985) .............................26, 27

Tex. Civ. Prac. & Rem. Code§ 101.0215 (West 2013) ..........................................27

Tex. Civ. Prac. & Rem. Code Ann. §101.057 (West 1985) .............................29, 30

Tex. Gov't. Code Ann. § 311.005 (West 1989).......................................................11

Tex. Gov't. Code Ann. § 311.034 (West 2005).......................................................11

Tex. Gov't. Code Ann. Ch. 551 et. seq. (West 2013)..............................................14

Tex. Gov't. Code Ann.§ 551.021 (West 2013).......................................................17

Tex. Gov't. Code Ann. § 551.022 (West 2013).................................................17, 18

Tex. Gov't. Code Ann.§ 551.072 (West 1993).................................................19, 20

Tex. Gov't. Code Ann.§ 551.141 (West 1993).......................................................15

Tex. Gov't. Code Ann.§ 551.142 (West 1993).......................................................14

Tex. Gov't Code Ann.§ 551.143 (West 1993)........................................................15

Tex. Gov't. Code Ann. § 551.144 (West 1999)...........................................16, 19, 20

Tex. Gov't. Code Ann. § 551.146 (West 2013).......................................................13

Tex. Health & Safety Code§ 343.011(c)(l1) (West 2013).....................................12

Tex. Lac. Gov 't Code Ann., Ch. 171 et. seq...........................................................19

Tex. Lac. Gov't Code Ann. § 171.006 (West 1989) ...................................18, 19, 21

Tex. Occ. Code Ann. § 1101.557 (West 2005) .......................................................20

Tex. Occ. Code Ann.§ 1101.558 (West 2003) .......................................................20

9
Constitutional Provisions

TEX. CONST. art.. I, § 17 ........................................................................................23

TEX. CONST. art. I, § 19 ........................................................................................22

10
 STATEMENT OF THE CASE

Appellants City of Leon Valley and Councilmember Irene Baldridge, are not

entitled to immunity because each of the causes of action asserted against the Appellants

fall within recognized constitutional and statutory exceptions to sovereign immunity,

official immunity and legislative immunity.

Under the applicable standards of review under Tex. Dept. of Parks & Wildlife v.

Miranda, 133 S.W.3d 217 (Tex. 2004), both Appellant Irene Baldridge’s and the City of

Leon Valley’s claims of immunity fail because there genuine issues of material fact on

jurisdictional issues.

With five (5) separate violations of the Texas Open Meetings Act properly

alleged and supported by credible evidence, there is no immunity for the City of Leon

Valley, because the Texas Open Meeting Act authorizes, actual monetary damages,

injunctive, mandamus and declaratory relief as well as attorneys fees and taxable court

costs.

Appellant Baldridge’s activities, including her failure to disclose her conflict of

interest and her failure to recuse herself from the city council vote on the Appellees

property all fall within recognized exceptions to the absolute and legislative immunity.

11
 ISSUES PRESENTED

Appellees’ Response to Issue No.1 Presented

The trial court properly denied the Plea to the Jurisdiction because the Appellees
claims fall within recognized constitutional or statutory exceptions to the City's
governmental immunity.

Appellees’ Response to Issue No.2 Presented
The trial court properly denied the City's plea to the jurisdiction because Appellees
pleaded and proved with competent evidence numerous violations the Texas Open
Meetings Act, and the evidence submitted by Appellees on disputed jurisdictional
issues must be taken as true, with all doubts resolved in favor of the Appellees.

Appellees’ Response to Issue No. 3 Presented
The trial court properly denied the City of Leon Valley's Plea to the Jurisdiction
because Appellees have properly invoked the Court's jurisdiction for constitutional,
nuisance, declaratory judgment and tort claims.

Appellees’ Response to Issue No. 4 Presented

Irene Baldridges’ conflict of interest, and other activities outside the scope of her
legislative duties are recognized exceptions to her legislative immunity.

STATEMENT REGARDING ORAL ARGUMENT

Appellees have requested oral argument to assist the Court in considering and

deciding important issues of fact and law presented in this case particularly with

regard to Appellant Baldridge’s conflict of interest and the City of Leon Valley’s

numerous violations of the Texas Open Meetings Act as well as Appellees various

legal and equitable remedies.

APPELLEES’ STATEMENT OF FACTS.

The Appellees own undeveloped land within the City of Leon Valley, Texas,
12
which is referred to as the “property in question.” The Appellees also formed a real

estate, joint venture called the Wm. Rancher Estates Joint Venture (Wm. Rancher

Estates) in order assist in the efforts to jointly market and sell their land. [CR V7 -110-

118 ]

The Appellees contracted with Appellee, Daniel S. Bee as a licensed Texas Real

Estate Broker/Agent, and his company, Appellee, Deference Service Business, Inc.

(“DSB, Inc.”) to plat, market and sell the land. Daniel S. Bee is also the elected and/or

appointed Manager and Executive Officer, and authorized agent and representative of

the Joint Venture. Appellee Daniel S. Bee holds an equitable interest in the property

due his contractual relationship as a real estate broker with and for the other Appellees.

[C.R. V7, 157-173]

Through the assistance of Daniel S. Bee, the Appellees entered into a contract

for the sale of land described as the property in question with an entity later identified

as Huntington Communities. The contract for the sale of the Appellees’ land was

entered into on or about June 21, 2010, for a total price of $1,975,000.00. [ C.R. V7,

157-173]

Appellant, Irene Baldridge is a competing licensed Texas Real Estate Agent,

who co-owned, with her late husband, Appellant, ALIE BALDRDIGE (a/k/a AL

BALDRDIGE), the company known as International Realty Plus. As a licensed Texas

Real Estate Agent, Baldridge she worked under the brokerage of Appellant, Alie

Baldridge (A/K/A AL Baldridge), who was a licensed Texas Real Estate Broker.

Appellant Alie Baldridge was the sponsoring broker for Irene Baldridge and he was
13
responsible for all of acts and omissions of Irene Baldridge as an agent for Alie

Baldridge and International Realty Plus. [C.R. V7, 157-173]

Together, Appellants Irene Baldridge and her late husband, Alie Baldridge

owned and did business together as International Realty Plus. Accordingly, Alie

Baldridge and International Realty Plus are vicariously liable under legal doctrine of

respondeat superior for any and all of the negligent or intentional acts or omissions

done by Irene Baldridge that were done within the course and scope of her duties as a

real estate agent; and/or that were done in furtherance of the real estate business; and/or

that were done as an owner/officer/director of International Realty Plus. [CR V7, 118-

121

Irene Baldridge was also an elected official in the City of Leon Valley, where

she served as a city council member for the City of Leon Valley, particularly during the

relevant period from July 2010 until at least April 2011. Beginning in or about July

2010, it became apparent to the Appellees that Appellant Baldridge had a serious

conflict of interest between her public role as a city council member for the City of

Leon Valley, and her private, business role as a licensed real estate agent, owner and/or

employee of International Realty Plus. [CR V7, 118-121

In or about July 2010, Appellant Baldridge contacted Appellee, Daniel S. Bee

and indicated she represented certain private real estate client(s), including a builder

and a developer, who were interested in purchasing and developing the property in

question which was also known by its designation in City of Leon Valley documents as

Seneca West. [CR V7, 118-121 ; C.R. V7, 157-173]
14
 Appellant, Baldridge met Fred Ballard of Huntington Properties, the

purchaser/developer of the Seneca West property on or about May 22, 2010, at the

Leon Valley City Hall. They were introduced by Daniel S. Bee, and at that time, Fred

Ballard told Baldridge directly that he (Mr. Ballard d/b/a Huntington Communities) had

the Seneca West property under contract with a pending request for an R-6 zoning

designation with the City of Leon Valley. From that time forward Baldridge knew or

should have known that the property in question was under contract for purchase, and

that there was a pending application for a zoning designation or re-designation with the

City of Leon Valley. . [CR V7, 118-121 ; C.R. V7, 157-173]

In July 2010, Appellant Baldridge contacted and solicited the Daniel S. Bee,

stating that she (Irene Baldridge) represented real estate clients who were interested in

making an offer to purchase, develop, and build homes on the property in question,

which she identified as Seneca West, property that she knew was located within and

under the territorial jurisdiction of the City of Leon Valley. Initially, on or about July

22, 2010, in a recorded telephone call, Appellant Baldridge informed Daniel S. Bee

that said her clients were prepared to make an offer to purchase the property in

question; she later indicated that her clients were prepared to sign a letter of intent to

purchase the property in question. . [CR V7, 118-121 ; C.R. V7, 157-173]

Subsequently, on or about August 10, 2010, Daniel S. Bee met with Irene Baldridge

and the Baldridge Clients at International Realty Plus, to discuss the specific terms of

the letter of intent to purchase. At said meeting on or about August 10, 2010, Irene

Baldridge and the Baldridge Clients, verbally reaffirmed and confirmed to Daniel S.
15
Bee the existing contractual, agency relationship between Baldridge and the Baldridge

Clients were identified as Steve Hanan’s son, Bill Jackson of Hanan Development Co.

and David Matlock, of M/I Homes. David Matlock of M/I Homes later in June 2011,

just 3 months after the vote on city council, submitted an offer to purchase the property

for $1.975 Million. At that time in June 2011, David Matlock sought to include

Baldridge in the transaction. . [CR V7, 118-121 ; C.R. V7, 157-173]

From the first time that Baldridge solicited the purchase of the property in

question on or about July 7, and latter on July 22, 2010, Daniel S. Bee informed

Appellant Baldridge that Appellees already had the property in question under a

contract of sale to a competing buyer; therefore, Appellant, Baldridge knew or should

have known the Appellees were parties to a contract with a competing buyer/ builder /

developer to sell the property in question and that the property in question was the

subject of an upcoming zoning or re-zoning vote on the Leon Valley City Council. .

[CR V7, 118-121 ; C.R. V7, 157-173]

On or about July 7, 2010 Appellant Baldridge acknowledged to the Appellees

the serious and direct conflict of interest she had between her role as an agent for

prospective buyers of the property in question vs. her role as a city council member for

the City of Leon Valley, and at that time, Appellant Baldridge admitted and recognized

she would have to abstain and not participate or vote in any official City of Leon

Valley action regarding the property in question, because Baldridge knew that she a

substantial interest in a business entity of her own, and her business also had a

substantial interest in real property (i.e., an equitable interest in the Land that exceeded
16
$2,500), when it was reasonably foreseeable that the action on the matter before council

would have a special economic effect on the value of the property in which she and her

business entity, and her husband, and their business had an equitable interest . [CR V7,

118-121 ; C.R. V7, 157-173]

The serious conflict of interest for Appellant, IRENE BALDRDIGE became

deeper and more apparent on or about August 10, 2010, when Appellee Daniel S. Bee

was summoned to a meeting with Appellants, Irene Baldridge, and Alie Baldridge at

the offices of International Realty Plus. Present at the meeting were Irene Baldridge

and Alie Baldridge as well as their real estate clients, including the competing

developer and builder previously identified as the “Baldridge Clients,” who were the

prospective purchasers and/or developers of the property in question. At the August

2010 meeting, Baldridge’s clients directly confirmed to Daniel S. Bee, the existence of

Irene Baldridge’s agency and representation of them in the proposed transaction and

reaffirmed and personally verified their intent to make a bona fide offer and sign a

letter of intent to purchase the property in question. Both Baldridge and her clients

used their pending offer to purchase and promise to sign a letter of intent to press the

Appellee for details of the pending offer to purchase the property in question; however,

the details of the pending offer purchase the property in question were not disclosed to

the Appellants at that time. . [CR V7, 118-121 ; C.R. V7, 157-173]

Since 2003, and on an ongoing basis up until the present time in 2013, the

Appellants, City of Leon Valley, Marcus Semmelmann, Albert & Monica Alcocer,

Sharon & Ray Hendricks, Marion Larkin have continuously and wrongfully interfered
17
with the Appellees interest, use and enjoyment of the property in question by

repeatedly without any legal right, permit, permission, or due process, invaded the

property in question and intentionally or negligently created conditions either on their

own adjacent property or on the property in question, that have altered the natural flow

of water in the flood plain of Drain 1 – Huebner Creek. The various intentional acts

and omissions of the Appellants, jointly and severally, have substantially increased the

flow of water and have caused continuous and recurring flooding and ponding on the

Appellees’ property in question. . [CR V7, 118-121 ; C.R. V7, 157-173]

The Appellants’ wrongful conduct has caused a substantial increase in the

accumulation of water and flooding on the Appellees’ land which has substantially

interfered with the Appellees’ private use and enjoyment of their own property, and it

has caused the Appellees sustain actual damages that were proximately caused the

intentional or negligent acts of the Appellants. . [CR V7, 118-121 ; C.R. V7, 157-173]

On or about November 4, 2011, the Appellants invaded the property in question,

without any legal right, permit or permission, or due process and with their motorized

vehicles and motorized equipment proceeded on Appellees land and began to dig a

trench on the property in question, within an area inside the flood plain, which further

altered the natural flow of water on the flood plain of Drain 1 - Huebner Creek. The

resulting alteration of the natural flow of water on the flood plain has caused serious

and permanent damage to the property, by causing continuous and recurring flooding

on the property in question, which substantially interferes with the Appellees’ private

use and enjoyment of the property and/or which permanently limited the Appellees’
18
access to their own property. . [CR V7, 118-121 ; C.R. V7, 157-173]

All of the taking and damaging caused by Appellant, City of Leon Valley was

done without permit (inside the flood plain), without any granted easement, and

without any legal right to enter, alter or damage the property in question; City of Leon

Valley had no permission from any landowner to enter, to take, damage or alter the

property in question, and the City of Leon Valley has repeatedly and continuously

taken possession of the property in question for an alleged public use, without any just

compensation to the Appellees for the taking, damaging or destroying of the Appellees’

property.

At the time it committed the foregoing intentional acts, the City of Leon Valley

was fully aware and on notice of the lack of legal authority or permission to enter, take,

damage or alter the property in question . [CR V7, 118-121 ; C.R. V7, 157-173]

This unlawful diversion or impounding of the natural flow of water in Drain 1 –

Huebner Creek by the Appellants, jointly and severally, has caused serious, permanent

and ongoing damage to the property in question by causing continuous and recurring

flooding and ponding of the property in question, essentially creating a bog, which

substantially interferes with the Appellees’ use and enjoyment of the property in

question so as to constitute a taking as a whole property, or in the alternative, it has

caused damage or destruction to such a significant portion of the property, and to such

a degree that it has affected and diminished the value of the entire remainder of the

Appellees’ property, and/or it has permanently limited the access to the Appellees’

property. [CR V7, 118-121 ; C.R. V7, 157-173].
19
 The intentional actions of the Appellants who have repeatedly entered the

Appellees land without permission, right, privilege or due process have created a public

and private nuisance and constitute a trespass for which the Appellees seek real-

property damages.

I.

ARGUMENT & AUTHORITIES

Applicable Standard of Review under

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

Pleas to the jurisdiction have no specific procedural requirements under the

Texas Rules of Civil Procedure. In fact, pleas to the jurisdiction are mentioned only

once in the Texas Rules of Civil Procedure, in Rule 85, Tex. R. Civ. P. which states

that a “plea to the jurisdiction” may be included in a defendant’s original answer.

Despite the lack of any specific procedural guidance from the rules, the use of pleas to

the jurisdiction has risen dramatically, since 1997, when the Texas Civil Practice and

Remedies Code was amended by the addition of Section 51.014 (a)(8), which

established a right to interlocutory appeal from either the granting or denial of a plea

to the jurisdiction filed by a governmental entity. Due to the lack of any procedural

guidance in the rules of procedure, the standards applicable to the review of pleas to

the jurisdiction developed through applicable case law.

There are two seminal cases which govern the procedures as well as the

applicable standard of review for pleas to the jurisdiction: Bland Indep. Sch. Dist. v.

20
Blue, 34 S.W.3d 547, 555 (Tex. 2000) and Texas Department of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 227 (Tex. 2004). Prior to the Bland and Miranda

decisions, pleas to the jurisdiction were resolved solely by an analysis of the

pleadings, without evidentiary support. See, Firemen’s Ins. Co. v. Bd. Of Regents

of Univ. of Tex. Sys., 909 S.W.2d 540, 541 (Tex. App.—Austin 1995, writ denied)

(“In a plea to the jurisdiction, the trial court must base its decision solely on the

allegations in the plaintiff’s pleadings”). But beginning with the Bland case, trial

courts were instructed to resolve pleas to the jurisdiction by considering the evidence

submitted. However, the Bland court also cautioned against going too deeply in the

merits of the case, “quote from Bland stating courts should not delve too deeply……”

Bland at 555.

In the Bland case, the Supreme Court held that a trial court may consider

evidence submitted in connection with a plea to the jurisdiction, but cautioned against

going too deeply into the merits of the case. Id. at 554. Evidence considered during

the plea to the jurisdiction should be limited to jurisdictional issues and not the merits

of the case, but because it is sometimes difficult not to go deeply into the merits once

the trial court considers evidence at the hearing on the plea to the jurisdiction, the

standard of reviewing this evidence was addressed by the Texas Supreme Court in

Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.

2004).

In Miranda, the Court addressed the tension between the governmental entity’s

21
right to seek dismissal through pleas to the jurisdiction against each plaintiff’s

constitutional right to have their day in court, with fact questions resolved through

trial by jury. Id. at 228. Miranda requires the trial court to examine jurisdictional

issues early in order to “determine … whether it has the constitutional authority to

decide the case before allowing litigation to proceed.” Id. at 226. Miranda also

requires a two-step approach to analyzing pleas to the jurisdiction. Id. at 225—228.

Two Step Analysis Required by the Miranda Case:

The First Step -- the Sufficiency of the Pleadings Standard - The first step

required by the Miranda jurisdictional issue analysis applies if the plea to the

jurisdiction challenges the sufficiency of the pleadings, in which case the pleadings

must always be construed liberally to give effect to the intent of plaintiff’s allegations,

assuming in effect, that if the facts as alleged are true, have the plaintiffs stated a valid

waiver sovereign immunity. “When a plea to the jurisdiction challenges the pleadings,

we determine if the pleader has alleged facts that affirmatively demonstrate the court's

jurisdiction to hear the cause. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 446 (Tex.1993). We construe the pleadings liberally in favor of the plaintiffs and

look to the pleaders' intent. Id” Miranda at p. 226..

However, Miranda makes it clear that if the plea to the jurisdiction is based

upon evidence of jurisdictional facts, it may be necessary to order additional

discovery to take place on the jurisdictional issues. It is within the trial court’s

discretion to determine if a fuller development of the facts of the case is necessary

22
before hearing the plea to the jurisdiction. Id. at 227.

Second Step – the Evidentiary Analysis dictated by Miranda:

When the defendant submits a plea to the jurisdiction that contains evidence,

if the trial court determines that sufficient facts have already been developed, then

the court may simply analyze the evidence submitted and -- similar to the standard

for summary judgment -- if the court concludes that a fact issue is created when

examining the jurisdictional facts, then the trial court cannot grant a plea to the

jurisdiction and the issue must be resolved by a jury. Id. at 227. Only when the

relevant evidence submitted for the plea to the jurisdiction is either undisputed or

fails to raise a fact question on the jurisdictional issue, may the trial court rule on

the plea to the jurisdiction as a matter of law. Id.

If the governmental entity asserts and supports its contention that the trial court

lacks subject matter jurisdiction, the plaintiff must merely show 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) (citing Huckabee v. Time Warner Entm’t

Co., 19 S.W.3d 413, 420 (Tex. 2000)). Similar to the summary judgment procedure,

when the plea to the jurisdiction is denied the plaintiffs preserve their right to have

their day in court and present the disputed fact issues to a jury. Id. at 228. Also

similar to the summary judgment practice evidence, when the appellate court

reviews the evidence on appeal, “…[the reviewing court] takes as true all

evidence favorable to the nonmovant…[and] indulges every reasonable inference

23
 and resolves any doubt in the nonmovant’s favor. Id.

In the seminal case for determining a plea to the jurisdiction based upon

sovereign immunity Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Even in the

Bland, the Supreme Court ruled that evidence could be considered in determining

pleas to the jurisdiction, but at the same time, Bland cautioned against about delving

too deeply into the merits of the evidence surrounding the jurisdictional issues. The

Bland Court said that the trial “…court should, of course, confine itself to the

evidence relevant to the jurisdictional issue.”Id at 555, “But the proper function of a

dilatory plea does not authorize an inquiry so far into the substance of the claims

presented that plaintiffs are required to put on their case simply to establish

jurisdiction.” Id. at 554. The proper function of a plea to the jurisdiction is to

determine if the trial court has subject matter jurisdiction to rule on the issues raised

by the plaintiffs’ pleadings, Bland and Miranda authorize an inquiry into the evidence

as it relates to jurisdiction, but the Plaintiffs should not be required to put on their

whole case just to establish jurisdiction. So long as there is viable cause of action that

is pleaded and there is a genuine issue of material fact as to some jurisdictional facts,

then Plaintiffs have met their burden. Indeed, the Supreme Court restated the

standard in the Miranda as follows:

“If the evidence creates a fact question regarding the jurisdictional issue, then

the trial court cannot grant the plea to the jurisdiction, and the fact issue will be

resolved by the fact finder. Id at 227-228.“…by reserving for the fact finder the

24
resolution of disputed jurisdictional facts that implicate the merits of the claim or

defense, we preserve the parties' right to present the merits of their case at trial.” Id. at

228.

Critical Factor of the Standard of Review Omitted by the Appellants

Although the Appellants correctly stated that the standard of review is de novo,

the Appellants omitted the following critical portions of the standard of review

prescribed by the Supreme Court in Miranda:

When reviewing a plea to the jurisdiction in which the pleading requirement has

been met and evidence has been submitted to support the plea that implicates the

merits of the case, we take as true all evidence favorable to the nonmovant. See Sci.

Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). We indulge every

reasonable inference and resolve any doubts in the nonmovant's favor. Id.

The practical implications of this element of the applicable standard for review

for this case are significant because – similar to Miranda – the pleading requirements

have been met and volumes of evidence have been submitted to support the plea all of

which implicate the merits of the case; therefore, the Court must accept all evidence

favorable to the Appellees as established and undisputed truth. Any material fact

pleaded by the Appellees on which they have submitted even a scintilla of evidence

must be treated by the Court as an absolutely true statement, which means that all

evidence to the contrary submitted by either the City of Leon Valley or by Irene

Baldridge must be disregarded and treated as having no consequence – at least for

25
 purposes of the plea to the jurisdiction.

The Appellants incorrectly argue for an evidentiary standard far beyond what is

required. Bearing in mind that the Court must treat every fact pleaded must be taken as

true… but in this case, the Plaintiffs have done far more than plead numerous causes of

action over which the court has jurisdiction, -- in fact the plaintiffs second amdned

Petition properly pleads Eleven different causes of action including, but the Plaintiffs

have gone a step further. Plaintiffs have also submitted at least four different affidavits

proving the prima facie elements of each cause of action. This is far more

“jurisdictional evidence” than is necessary to determine the trial court had jurisdiction,

and it is actually sufficient evidence to meet the standard for defeating a motion for

summary judgment which is not actually before the court in this matter

This is not a case where the jurisdictional facts are straightforward and can be

easily discerned as a question of law by way of a plea to the jurisdiction. There are

genuine issues of material fact as to jurisdiction that rightfully should be determined by

a trier of fact, mainly because the facts are so inextricably intertwined with the merits of

the case. The Supreme Court recognized that certain cases where jurisdictional facts are

so inextricably intertwined with legitimate controversies over the merits that it is

appropriate to defer such questions for the trier of fact. In Miranda the Court wrote:

“However, in some cases, disputed evidence of jurisdictional facts that also implicate

the merits of the case may require resolution by the finder of fact. See Gates v. Pitts,

291 S.W. 948, 949 (Tex.Civ.App.-Amarillo 1927, no writ); Gentry, 21 S.W. at 570; see

26
also Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 n. 3 (1st Cir.2001) (observing that

in certain situations, the predicate facts can be so inextricably linked to the merits of the

controversy that the district court may "defer resolution of the jurisdictional issue until

the time of trial"); Cameron v. Children's Hosp. Med. Ctr., 131 F.3d 1167, 1170 (6th

Cir.1997) ("[W]hether a district court has subject matter jurisdiction is a question for

the court, not a jury, to decide, even if the determination requires making factual

findings, unless the jurisdictional issue is inextricably bound to the merits of the case.");

Williamson v. Tucker, 645 F.2d 404, 413 n. 6, 416 n. 10 (5th Cir.1981) (suggesting that

a federal district court's role in determining jurisdictional facts may be more limited in

cases in which the jurisdictional attack implicates the merits of plaintiff's cause of

action).”

. APPELLEES’ RESPONSE TO ISSUE NO. 1.

The trial court properly denied the Plea to the Jurisdiction because the Appellees
claims fall within well recognized constitutional or statutory exceptions to the
City's governmental immunity.

In Issue No. 1, the Appellants are challenging the sufficiency of the Appellees’

pleadings. When applying the proper standard of review, then each of the plaintiffs

allegations must be taken as true and the court must determine if the pleader has

alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause.

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

the pleadings liberally in favor of the plaintiffs and looking to the pleaders' intent. Id”

Miranda at p. 226.

27
 Standard of Review for Sufficiency of the Pleading:

Recalling the applicable standard for review of this allegation, the Court must

always construe the Plaintiffs/Appellees, pleadings liberally to give effect to the intent

of plaintiff’s allegations, analyzing whether the plaintiffs have stated a valid waiver of

sovereign immunity, assuming the facts as alleged are true. When the pleading

sufficiency is challenged, the Court must always be careful not to require the Appellees

to prove their entire case on plea to the jurisdiction. The proper function of a dilatory

plea does not authorize an inquiry so far into the substance of the claims presented that

plaintiffs are required to put on their case simply to establish jurisdiction.” Bland at

554. “…by reserving for the fact finder the resolution of disputed jurisdictional facts

that implicate the merits of the claim or defense, we preserve the parties' right to present

the merits of their case at trial.” Miranda at 228. So long as there is viable cause of

action that is pleaded and there is a genuine issue of material fact as to some

jurisdictional facts, then Plaintiffs have met their burden. Indeed, the Supreme Court

restated the standard in the Miranda as follows: “If the evidence creates a fact question

regarding the jurisdictional issue, then the trial court cannot grant the plea to the

jurisdiction, and the fact issue will be resolved by the fact finder. Id at 227-228

In their Second Amended Petition, the Appellees pleaded the following actions

with respect to the City of Leon Valley’s intentional actions:

60. Specifically, on November 4, 2011, the DEFENDANTS invaded
the Property in Question, without any legal right, permit or
permission, or due process and proceeded to dig a trench on the
28
 Property in Question, within an area inside the flood plain, which
further altered the natural flow of water on the flood plain of Drain
1 - Huebner Creek. The resulting alteration of the natural flow of
water on the flood plain has caused serious and permanent damage
to the property, by causing continuous and recurring flooding on
the Property in Question, which substantially interferes with the
PLAINTIFFS’ private use and enjoyment of the property and/or
which permanently limited the PLAINTIFFS’ access to their own
property.
61. All of the taking and damaging caused by Defendant, CITY OF
LEON VALLEY was done without permit (inside the flood plain),
without any granted easement, and without any legal right to enter,
alter or damage the Property in Question; CITY OF LEON
VALLEY had no permission from any landowner to enter, to take,
damage or alter the Property in Question, and the CITY OF LEON
VALLEY has repeatedly and continuously taken possession of the
Property in Question for an alleged public use, without any just
compensation to the PLAINTIFFS for the taking, damaging or
destroying of the PLAINTIFFS’ property.
62. At the time it committed the foregoing acts, the CITY OF LEON
VALLEY was fully aware and on notice of the lack of legal
authority or permission to enter, take, damage or alter the Property in
Question.
Plaintiffs’ Second Amended Petition [CR V7, 127-128] .
Appellants claim there is no waiver of immunity, however, this ignores the heart

of the Appellees claims that through the intentional actions of entering the Plaintiffs

land to dig a trench specifically for the purposes of intentionally diverting the natural

29
flow of water for an alleged public use, the City of Leon Valley, knew and intentionally

caused water to back up and accumulate upon the Appellees’ property. This is the

essence of a constitutional taking claim under the Texas Constitution, article 1 section

17, which meets the standard for review for sufficiency of the pleadings under Tex.

Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004).

Keeping in mind that the court must indulge in every inference in favor of the

Appellees, there is no immunity for such claims under the Texas Constitution, Article I,

Section 17 of the constitution. In the City of Dallas v. Jennings, 142 S.W. 3d 310

(Tex. 2004), the Supreme Court held, “…[W]hen a governmental entity physically

damages private property in order to confer a public benefit, that entity may be liable

under Article I, Section 17 if it (1) knows that a specific act is causing identifiable

harm; or (2) knows that the specific property damage is substantially certain to result

from an authorized government action -- that is, that the damage is necessarily an

incident to, or necessarily a consequential result of the government’s action.” City of

Dallas v. Jennings, 142 S.W.3d 310, 315-16 (Tex. 2004) Appellees have clearly

pleaded a cause of action against the City of Leon Valley that is permissible under

Article I, Section 17 of the Texas Constitution.

A nuisance claim can only be brought against a governmental entity if that

nuisance rises to the level of a constitutional taking or unless governmental immunity is

specifically waived by the Texas Tort Claims Act. See City of Dallas v. Jennings, 142

S.W.3d 310, 315-16 (Tex. 2004); see also Gen. Servs. Comm’n v. Little-Tex Insulation

30
Co., 39 S.W.3d 591, 598 (Tex. 2001) (to establish takings claim a claimant must prove

governmental entity intentionally performed certain acts that resulted in ″taking″ of

property for public use). In effect, the takings clause waives governmental immunity

for certain taking claims. See City of Dall. v. VSC, LLC, 347 S.W.3d 231, 236 (Tex.

2011); State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). To prevail on a taking

claim, the plaintiff must prove the ″governmental actor acted intentionally to take or

damage property for a public use.″ Holland, 221 S.W.3d at 643;

The Supreme Court has also held that cities may be ″…held liable for

depreciation in value of land and for physical discomfort resulting from nuisances in the

exercise of governmental functions…” such as digging of ditches for the purposes of

improving or altering drainage as alleged by the Plaintiffs/Appellees in several different

sections of the Second Amended Petition [CR V7, 127-128]

Municipal liability in such cases is ″bottomed on the inhibition of the

Constitution, both Federal and State, that property cannot be appropriated without due

compensation, even though appropriated in the exercise of governmental functions ″

Gotcher v. City of Farmersville, 139 S.W.2d 361, 362-363 (Tex. Civ. App.--Dallas

1940, writ granted) aff’d 137 Tex. 12, 151 S.W.2d 565 (Tex. 1941).

When the proper standard of review is applied to each of the Issues outlined in

Appellants Brief, it becomes obvious that the trial court properly concluded it subject

matter jurisdiction over each of the Appellees claims against the Appellants. .

31
 APPELLEES’ RESPONSE TO ISSUE NO. 2.

RESPONSE TO ISSUE NO. 2: The Trial Court Properly Denied The City's Plea

To The Jurisdiction Because Appellees Pleaded and Proved With Competent

Evidence Numerous Violations The Texas Open Meetings Act, and The Evidence

Submitted By Appellees On Disputed Jurisdictional Issues Must Be Taken As

True, with All Doubts Resolved In Favor Of The Appellees.

Importance of the Miranda Analysis for Issue No. 2.

Perhaps more than on any other issue raised by the Appellants’ Brief, the correct

application of the standard of review dictated by the Miranda analysis is outcome

determinative on Issue No. 2, which deals with the Appellees’ claims under the Texas

Open Meetings Act (“TOMA”), Chapter 551 of the Texas Government Code. On

Appellants’ Issue No. 2 – the Appellees as well as Baldridge and the City of Leon

Valley submitted voluminous evidence, most of which touches on jurisdictional issues,

but also goes to the merits of the claim, and on virtually every issue, the evidence

submitted by the Appellants and Appellees is diametrically opposed.

A simple comparison of the Affidavit of Irene Baldridge [CR V, ] with the

Affidavit of Daniel Bee juxtaposes certain jurisdictional factual disputes: (a) Baldridge

denies any interest in the Appellees land and claims she never represented any buyers in

relationship to the land while Daniel Bee not only states that Baldridge contacted him to

solicit an offer on the land, but he offers a telephone recording transcript of the

conversation, and he attended a meeting to discuss the terms of the bargain. This is

32
critical to the jurisdictional issues because Baldridge never disclosed to the City or to

any other city council members that she had been in negotiations to purchase the land or

that she represented potential buyers. If Daniel Bee’s facts are taken as true, -- as they

should be under the Miranda disputed evidence test -- then Baldridge had serious

conflict of interest that should have been disclosed, and Baldridge should have

abstained from the vote on zoning the land. If disqualified from the vote on the land,

then Baldridge also had a legal and moral duty not to participate in any executive

session that dealt with or touched on the land issues, or contractual or personnel issues

that dealt with land transaction issue. For instance, interviews of job candidates for the

position of city manager took place during January through April 2011 (See CR V

), and the city manager’s job includes review of all contracts that deal with tax

abatement and development issues within the City of Leon Valley. The city manager

would have direct input and negotiating authority on land development and tax

abatement issues for the city, all of which directly affects zoning issues. During this

period of time between January through April of 2011, the City had over twelve

executive sessions and Baldridge participated in most if not all of them. (See the list of

Executive Sessions derived from the review of record produced by Leon Valley.].

Baldridge’s conflict of interest should have been disclosed, and she should not have

participated in any executive sessions dealing with land acquisition, zoning, or any

contracts or personnel issues such as city manager, whose position would have such a

direct impact upon all future zoning, land development and tax abatement issues for the

33
City of Leon Valley. The land in question in this case was a tract of approximately 70

acres, with a value of approximately $1.95 Million, and for a small city such as Leon

Valley, the economic impact was estimated to be in the tens of millions of dollars.

[See the Affidavit of Daniel Bee,

Baldridge denies the representation of buyers for the land because her entire

immunity defense relies upon the non-existence of that fact, but yet, Appellee Daniel

Bee recounts two direct encounters with Baldridge prior to the vote before city council

in which she not only admits to representing buyers for the land, but she actually solicits

a sales price and sets up a meeting to discuss further terms. The genuine issues of

material fact are obvious, and the Miranda analysis requires, “[w]hen reviewing a plea

to the jurisdiction in which the pleading requirement has been met and evidence has

been submitted to support the plea that implicates the merits of the case, [the court]

take[s] as true all evidence favorable to the nonmovant. See Sci. Spectrum, Inc. v.

Martinez, 941 S.W.2d 910, 911 (Tex.1997). [The court] indulge[s] every reasonable

inference and resolve any doubts in the nonmovant's favor. Id.” Miranda at 228.

Whether the Defendants’ Plea to the Jurisdiction is analyzed under the

sufficiency of the pleading standard or under the evidentiary standard required by Texas

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

court clearly has subject matter jurisdiction over the Plaintiffs’ five (5) separate TOMA

violations, which serve as the basis for injunctive relief, the declaratory relief, the

mandamus relief, as well as the monetary relief, attorneys fees and court costs that

34
Plaintiff/ Appellees would be entitled to if they prevail on the TOMA causes of action.

Issue No. 2A. The Open Meetings Act Specifically and Impliedly Authorizes

recovery of Monetary or Economic Damages.

Appellants admit that TOMA specifically authorizes recovery of monetary

damages, Sec 551.142. However, this narrow analysis engaged in by the Appellants

ignores the obvious: All of the other legal and equitable remedies authorized by TOMA

have a direct, and sometimes indirect monetary or economic impact upon the Plaintiffs.

In our case, the shear monetary value or economic impact of the equitable relief sought

for violations of TOMA far outweighs the out-of-pocket losses or monetary damages

amounts sustained by the Plaintiff/Appellees. For instance, one equitable remedy

specifically authorized by TOMA, the simple remedy of declaring void the illegal vote

in which Baldridge participated, notwithstanding her admitted conflict of interest, a

remedy specifically authorized by TOMA section 551.141, could result in a successful

sale of the land, whose value has been estimated to be approximately $1.95 Million.

Attorneys’ fees, another remedy specifically authorized by TOMA, sections 551.142,

551.146, has an economic or monetary value to the Appellees which could easily

exceed $100,000.00. It is therefore simplistic and denying the obvious to argue that the

remedies authorized by TOMA would not result in a direct economic and monetary

benefit to the Plaintiff/Appellees should they prevail in this matter.

Plaintiff/Appellees have properly pleaded in their Second Amended Original

Petition violations of TOMA, and Plaintiff/Appellees have sought the various forms of

35
equitable and legal remedies, including but not limited to injunctive relief, mandamus

relief, declaratory judgment, and attorneys fees and court costs. Each of these remedies

is specifically authorized by statue. Section 5521.142 of TOMA provides:

(a) An interested person, including a member of the news media,
may bring an action by mandamus or injunction to stop, prevent,
or reverse a violation or threatened violation of this chapter by
members of a governmental body.
(b) The court may assess costs of litigation and reasonable attorney
fees incurred by a plaintiff or defendant who substantially
prevails in an action under Subsection (a). In exercising its
discretion, the court shall consider whether the action was
brought in good faith and whether the conduct of the
governmental body had a reasonable basis in law.
Texas Open Meetings Act, Sec. 551.142
The right to seek declaratory judgment under the Texas Uniform Declaratory Judgments

Act, chapter 37 of the Texas Civil Practice & Remedies Code, for violations of TOMA

has also been recognized by the Texas courts Bd. of Trs. v. Cox Enters., Inc., 679

S.W.2d 86, 88 (Tex. App.—Texarkana 1984), aff’d in part, rev’d in part on other

grounds, 706 S.W.2d 956 (Tex. 1986) (recognizing news media’s right to bring

declaratory judgment action to determine if board had violated the Act); see also City of

Fort Worth v. Groves, 746 S.W.2d 907, 913 (Tex. App.—Fort Worth 1988, no writ)

(concluding that resident and taxpayer of city had standing to bring suit for declaratory

judgment and injunction against city for violation of the Act).

The Plaintiffs live pleading, the Plaintiffs’ Second Amended Original Petition

stated valid causes of action against City of Leon Valley & Irene Baldridge for which

they have no immunity. Specifically, Plaintiffs have pleaded at least five (5) separate
36
violations of the Texas Open Meetings Act, Chap 551, Texas Gov’t Code. Neither the

City of Leon Valley nor Irene Baldridge has immunity for violations of Chapter 551 of

the Texas Government Code, the “Texas Open Meetings Act” (“TOMA”). Texas courts

have uniformly held, “[t]he Open Meeting Act expressly waives sovereign immunity for

violations of the [A]ct.” Hays Cnty. v. Hays Cnty. Water Planning P’ship, 69 S.W.3d

253, 257 (Tex. App. – Austin 2002, no pet.); see also, Riley v. Comm’rs Ct., ____

S.W.3d ___, No. 03-11-00276-CV, 2013 WL 2348272 at *1-2 (Tex.App. – Austin May

23, 2013, no pet.).

APPELLEES’ RESPONSE TO ISSUE NO. 2 B AND 2 C: At Least Five (5)
Separate Violations of Texas Open Meetings Act were Properly Pleaded and
Supported by Competent Evidence.

In the Second Amended Petition, the Plaintiffs have alleged at least five (5)

separate violations of TOMA for which there is no immunity, the violations of TOMA

committed by the City of Leon Valley and Irene Baldridge include the following:

(a) Prohibited Participation in an Executive Session and Vote in violation of
TOMA Sec. 551.072 & Sec. 551.087;
(b) Alteration of Public Records – stated as a Failure to Prepare and Keep
Minutes or Make a Recording of an Open Meeting in compliance with TOMA,
which is a violation of TOMA Sec. 551.021;
(c) Failure to Make a Complete Copy of the Minutes or Recordings of an Open
Meetings Available for Public Inspection, which is a violation of TOMA Sec.
551.022;
(d) Prohibited Participation in a Closed Meeting in violation of TOMA Sec.
551.144; and
(e) Conspiring to Circumvent TOMA in violation of the Texas Common law as
articulated by the San Antonio Fourth Court of Appeals in Willman v. City of San
Antonio, 123 S.W.3d 469 (Tex. App. –San Antonio 2003, pet. denied).

37
 There are at least five (5) separate TOMA violations established through

competent evidence submitted by Appellees. [See the Affidavits of Elizabeth Bee,

C.R. V7, 182-183 and Daniel Bee C.R. V7, 157-173] Keeping in mind that

Appellees requested additional discovery on these issues, but were repeatedly denied

the right to conduct more discovery on these disputed issues the Appellees only option

was to gather and submit controverting Affidavits and to point out the gaps,

omissions, alterations, adulterations and/or missing records that were held back by the

City of Leon Valley.

Under applicable standards of review, all reasonable inferences that can be

drawn in favor of the Appellees from the evidence submitted must go in favor of the

Appellees. From the records submitted by the City of Leon Valley, the trial court could

draw inferences that numerous records were missing or intentionally held back by the

City of Leon Valley which would implicate violations of the Local Government Code

and the Texas Open Meetings Act by the City of the Leon Valley and by Council

Member Irene Baldridge.

The missing minutes and agendas are all reasonably calculated to lead to the

discovery of admissible evidence on the questions of whether Defendant Baldridge

participated in prohibited executive sessions that dealt with any matters touching upon

real estate purchases, property development, drainage issues, tax abatement or

TIF’s(Tax Increment Financing). If Baldridge did attend any of these meetings then

she and the City of Leon Valley committed multiple violations of the Texas Open
38
Meetings Act (TOMA) for which there is no immunity. Appellees are entitled to

inference in their favor from the missing records, especially when the records are

produced so selectively by the City.

Regarding the five (5) Executive Sessions that Irene Baldridge did participate in,

although the City Council Agenda and Minutes carefully describe the intended purpose

of the meetings as either discussion of “pending litigation” or “personnel matters,” the

labelling of the subject matter of executive sessions was a subterfuge, because in each

case the subject matter of the meeting undoubtedly touched upon real estate matters.

Based upon information and belief, the litigation in question, mentioned in meeting

minutes, involved a lawsuit that included zoning and tax abatement issues; and the

executive sessions dealing with a “personnel matter” involved the recruitment,

interviewing and hiring of a new City Manager for the City of Leon Valley.

There was even an executive session held on March 1, 2011, the same evening as

the City Council vote on zoning. Although the stated subject matter of the executive

session was personnel issues, but personnel issue was the hiring of a City Manager,

whose duties have to do with real estate, tax abatement, TIF (Tax Increment Financing),

and other economic development issues. It defies logic for the City of Leon Valley to

maintain that the executive sessions dealing with the Personnel issue of a City manager

did not touch upon real estate or economic development issues when:

a) The City Manager’s duties included handling numerous real estate related
matters, such as the calculation of TIF (Tax Incremental Financing) Proposals,

39
 which was one of the primary methods used to subsidize real estate development
in the City of Leon Valley;

b) Both Irene Baldridge and the City Manager served together on the Tax
Abatement Team, which was charged by the Council on January 4, 2011, to
investigate how the city could assist in the development proposals being brought
to the City Council;

c) The City Manager is the representative of the City who was supposed to sign the
Real Estate Development Agreement with the developers in the case in question;
therefore, the candidate for City Manager would need to have extensive
knowledge of real estate development issues.

By disguising the five (5) executive sessions in which Irene Baldridge

participated in the city council meetings leading up to the March 1, 2011, vote as either

“litigation or “personnel matters” in the agenda or in the minutes, the City of Leon

Valley was misleading the public, and in effect, conspiring to circumvent the

requirements of TOMA which require a true and accurate statement of the intended

scope of the executive session be stated in the agenda and minutes. This separate and

distinct violation of TOMA carries no immunity and subjects the City of Leon Valley

and Irene Baldridge to liability. These allegations of additional TOMA violations also

support the need to conduct additional discovery to obtain the certified agendas and the

audio recordings of each executive session in question, which are a minimum of five (5)

executive sessions, and perhaps as many as eight (8) additional, or as many as thirteen

(13) additional executive sessions, an average of one executive session during each

meeting for which the agendas and minutes are missing.

40
 Violation of the Spirit of TOMA: The core purpose of TOMA is to enable the

public to have access to the actual decision-making process of its governmental bodies.

City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765, Tex. Sup. Ct. J.

804 (Tex. 1991); Cox Enter. Inc. v. Board of Tr. Of Austin Indep. Sch. Dist., 706

S.W.2d 956, 960, 29 Tex. Sup. Ct. J. 316 (Tex. 1986). The provisions of TOMA are

mandatory and are to be liberally construed in favor of open government. Willman v.

City of San Antonio, 123 S.W.3d 469, 473 (Tex. App.—San Antonio 2003, pet. denied).

In Willman, several municipal judges sued the city for violations of the city

charter and the Texas Open Meetings Act (TOMA) when the city council passed an

ordinance recommending appointment of new judges. The Court determined that even

though the ordinance was ultimately passed in an open meeting, because the vast

majority of the deliberations leading up to the passing of the ordinance took place in

closed, committee meetings, this process violated the spirit of the Act and was

therefore, not exempt from the requirements of the TOMA. This Court stated “TOMA

requires ‘openness at every stage of a governmental body’s deliberations’ because the

citizens of Texas are entitled to know not only what government decided but also to

observe how and why every decision is enacted. The Court further stated “[t]he

provisions of TOMA are mandatory and are to be liberally construed in favor of open

government.” Id.

Under this standard, Council Person Baldridge has violated the spirit of the

TOMA and has attempted to circumvent the requirements of TOMA by ensuring that

41
her agreement with her real estate clients or buyers was verbal and not put in writing.

However, Counsel Person Baldridge represented to Plaintiff Daniel Bee on multiple

occasions that she represented bona fide buyers of the property, but then states in her

affidavit that she was not required to disclose such conflict because there was no written

contract. Council Person Baldridge’s actions show that she was aware of the conflict of

interest, and that she deliberately and flagrantly attempted to circumvent TOMA by

intentionally maintaining a verbal contract for representation, instead of the standard

written contract. Furthermore, Council Person Baldridge’s failure to disclose her

conflict of interest in the matter clearly violates the spirit of the TOMA and deprives the

public of access to a complete record of how and why the decision was enacted.

The Willman Court recognized a “mandate to liberally construe TOMA’s

provisions in order to safeguard the public’s interest in open government.” Id at 479.

To allow Council Person Baldridge’s actions to stand, unfazed by her deliberate failure

to disclose a conflict of interest and her intentional circumvention of TOMA, is to

condone the secreting of information from the public for the benefit of a government

official, which undermines the spirit and letter of TOMA and Willman.

Judging TOMA Violations

Hays County v. Hays County Water Planning Partnership, 69 S.W.3d 253

(2002 Tex. App. LEXIS 328) states that a governmental entity is not entitled to

legislative immunity from an Open Meetings Act claim. In Hays County, the Court

42
explains that the goal of the TOMA is to “provide openness at every stage of a

governmental body’s deliberations.” Id quoting City of San Antonio v. Aguilar, 670

S.W.2d 681 (Tex. App. –San Antonio 1984, writ dism’d) Meanwhile, “legislative

immunity shields individual legislators from litigation challenging the substance of a

decision, not the process by which it was made. Id. The Court concluded that to shield

governmental entities from claims under TOMA would “effectively undermine the

Act.” Id.

The Hays County case further provides that whether an action taken violates the

TOMA is a question to be decided at a trial on the merits and may not be the basis for

dismissal in a summary judgment or plea to the jurisdiction. Gillium v. Santa Fe

Indep. Sch. Dist., 2011 Tex. App. LEXIS 3607; 2011 WL 1938476, states that

“[b]ecause appellants’ petition alleged a TOMA violation, and immunity is waved for

such claim, the trial court erred by dismissing them for want of jurisdiction.”

The Appellees pleaded and submitted evidence in support of five (5) violations

of TOMA in the form of affidavits. Specifically, the supporting evidence included, the

Affidavit of Daniel Bee dated May 16, 2014, [C.R. V7, 157-173] the Affidavit of

Arthur Reyna dated June 3, 2014, [C.R. V7, 180 ] ; the Affidavit of Rudy Garcia dated

June 3, 2014, [ C.R. V7, 178 ] and the Affidavit of Elizabeth Bee dated June 3,

2014. [C.R. V7, 182-183 ] Each of these attached affidavits supports the numerous

TOMA violations which are summarized below:

a) Prohibited Participation in Executive Session and Vote, which violates the

43
 Texas Open Meetings Act (“TOMA”) Sec. 551.072 and the Texas Local

Government Code Sec. 171.004 prohibit elected officials from participating in a

vote on a matter involving a business entity or real property in which the official

has a substantial interest if it is reasonably foreseeable that an action on the

matter would have or confer a special economic benefit on the business entity or

on the value of real property that is distinguishable from the effect on the public.

Texas Local Government Code Sec. 171.004

b) Failure to Prepare and Keep Minutes or Make a Tape Recording of Open

Meeting is a violation of by failing to prepare or keep complete minutes of the

December 28, 2010, open meeting of the Leon Valley Zoning Commission.

TOMA § 551.021 requires a governmental body to prepare and keep minutes or

make a tape recording of each open meeting and states the minutes must state the

subject of each deliberation and indicate each vote, order, decision or other

action taken. As supported in the Affidavit of Elizabeth Bee, which is attached

to the Plaintiffs’ Appendix, in Support of the Plaintiffs’ claims, on file in this

matter, and incorporated by reference, the written minutes of this meeting were

incomplete, as they failed to fully state the subject of each deliberation and

indicate each vote, order, decision or other action taken. Furthermore, the audio

recording of this meeting make and kept by CITY OF LEON VALLEY is

incomplete.

c) Failing to Make Minutes and Tape Recordings of Open Meeting Available for

44
 Public Inspection: violates TOMA § 551.022 which provides that the minutes

and tape recordings of an open meeting be made available for public inspection

on request. Defendant CITY OF LEON VALLEY further violated TOMA and

the Local Government Code by failing to make the full, complete recording of

the December 28, 2010 meeting of the Leon Valley Zoning Commission

available for public inspection. As supported in the Affidavit of Elizabeth Bee,

(C.R. V7, 182-183, see, Appendix), the recording produced by Defendant CITY

OF LEON VALLEY is also incomplete, in that there is recording testimony that

is missing, edited or altered. Defendant CITY OF LEON VALLEY’s failure to

make the full recording available for public inspection, or in the alternative,

Defendant CITY OF LEON VALLEY’s alteration of the recorded testimony,

violates section 551.022 of TOMA.

d) Illegal Participation in Closed Meeting: CITY OF LEON VALLEY and

BALDRIDGE violated TOMA when IRENE BALDRIDGE wrongfully

participated in a closed meeting of the Leon Valley City Council. TOMA

§551.144 states that is an offense if a member participates in a closed meeting

that is not permitted under TOMA. Because IRENE BALDRIDGE was not

permitted to participate in closed meetings due to her conflict of interest

regarding the real property at issue, her participation in such closed meetings is a

violation of section 551.144 of TOMA.

e) Conspiring to Circumvent TOMA: In Willman v. City of San Antonio, 123

45
S.W.3d 469 (Tex. App.—San Antonio 2003, pet. Denied), the Court stated

“TOMA requires ‘openness at every stage of a governmental body’s

deliberations’ because the citizens of Texas are entitled to know now only what

government decided but also to observe how and why every decision is enacted.

The Court further stated “[t]he provisions of TOMA are mandatory and are to be

liberally construed in favor of open government.” Id at 473. Under this standard,

Council Person Baldridge has violated the spirit of the TOMA and has attempted

to circumvent the requirements of TOMA by ensuring that her agreement with

Baldridge’s Clients was verbal and not put in writing. Counsel Person Baldridge

represented to Plaintiff Daniel Bee on multiple occasions that she represented

Baldridge’s Clients in seeking to purchase the land at issue, but then states in her

Affidavit that she was not required to disclose such conflict because there was no

written contract. Council Person Baldridge’s actions show that she was aware of

the conflict of interest and that she deliberately and flagrantly attempted to

circumvent TOMA by intentionally maintaining a verbal contract for

representation, instead of the standard written contract. Furthermore, Council

Person Baldridge’s failure to disclose her conflict of interest in the matter clearly

violates the spirit of the TOMA and deprives the public of access to a complete

record of how and why the decision was enacted. The Willman Court recognized

a “mandate to liberally construe TOMA’s provisions in order to safeguard the

public’s interest in open government.” Id at 479. To allow Council Person

46
 Baldridge’s actions to stand, unfazed by her deliberate failure to disclose a

conflict of interest and her intentional circumvention of TOMA, is to condone

the secreting of information from the public for the benefit of the government.

APPELLEES RESPONSE TO ISSUE NO. 2 D: The City of Leon Valley and
Baldridge’s Violations of the Texas Open Meetings Act Center on Baldridge’s
Undisclosed Conflict of Interest.

Both Appellants and Appellees submitted substantial evidence on the issue of

Irene Baldridge’s conflict of interest. On the issue of conflict of interest, the Appellees

rely upon Affidavit of Daniel Bee dated May 16, 2014, [C.R. V7, 157-173] the

Affidavit of Arthur Reyna dated June 3, 2014, [C.R. V7, 180 ] ; the Affidavit of Rudy

Garcia dated June 3, 2014, [ C.R. V7, 178 ] and the Affidavit of Elizabeth Bee

dated June 3, 2014. [C.R. V7, 182-183 which when contrasted with the Affidavit of

Irene Baldridge and create factual dispute.

Both sides would likely agree that – if Baldridge genuinely had a “conflict of

interest” -- she should have declared it prior to the March 2010 vote on the zoning

request and should have abstained from the vote. What both sides most strongly

disagree on is whether or not Irene Baldridge genuinely had conflict of interest. Once

again, under the applicable standard of review the Appellees should prevail. “[W]hen

reviewing a plea to the jurisdiction in which the pleading requirement has been met and

evidence has been submitted to support the plea that implicates the merits of the case,

[the court] take[s] as true all evidence favorable to the nonmovant. See Sci. Spectrum,

Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). [The court] indulge[s] every
47
reasonable inference and resolve any doubts in the nonmovant's favor. Id.” Miranda at

228. In a plea to the jurisdiction, the Plaintiff/Appellees should never be required to

prove their entire case, just to establish jurisdiction. Bland at 554-555

Appellees have brought forth Affidavits from the actual participants in the city

council vote in question, all of which state that the outcome would have been different

if either Irene Baldridge had not participated in the vote, or if she had declared a

conflict of interest prior to the vote. The statute does not require more in depth proof,

or better proof to raise a genuine issue of material fact on this issue. In fact, there is

very little case law interpreting this statute, but to require more proof other than what

the Appellees have submitted to raise a genuine fact issue on whether Irene Baldridge

had a conflict of interest would be to require the Appellees to go too deeply into the

merits and prove their case, when the focus in a plea to the jurisdiction should be to

raise a fact issue, which the Appellees have done. Bland at 554-55; and Miranda 227-

28.

Conflicts of Interest Under Chapter 171 of the Local Government Code

Under Chapter 171 of the Texas Local Government Code, Baldridge had a

conflict of interest because she had a “substantial interest” in a matter that was subject

of some official action before city council “Substantial interest” in Chapter 171

Texas Local Government Code, includes:

(a) (1) the person owns 10 percent or more of the voting stock or
shares of the business entity or owns either 10 percent or more or
$15,000 or more of the fair market value of the business entity; or (2)
funds received by the person from the business entity exceed 10 percent
48
 of the person's gross income for the previous year.

(b) A person has a substantial interest in real property if the
interest is an equitable or legal ownership with a fair market value of
$2,500 or more.

(c) A local public official is considered to have a substantial
interest under this section if a person related to the official in the first
degree by consanguinity or affinity, as determined under Chapter 573,
Government Code, has a substantial interest under this section.

Section 171.002 Texas Local Government Code.

The nine (9) page Affidavit of Daniel S. Bee, [C.R. V7, 157-173]sets forth

specific facts, and contains excerpts from the transcripts of telephone conversations

with Irene Baldridge in July 2010, in which Mrs. Baldridge admits to having a conflict

of interest, and she gathers information on the land in question to have her clients

submit a letter of intent to purchase the exact same land that she would later vote on

during the March 1, 2011 city council vote. The Affidavit of Daniel S. Bee [ C.R.

V7, 157-173] clearly contains sufficient, competent, clear, positive and direct

evidence, which if taken as true it must be for purposes of a plea to the jurisdiction, will

defeat a claim of immunity and will raise a genuine issue of material fact that would

invoke jurisdiction and defeat the plea the jurisdiction.

More specifically, Irene Baldridge’s own affidavit, combined with the facts

contained in the Affidavit of Daniel Bee establishes all of the elements of “substantial

interest” under Section 171.002 of the Texas Local Government Code. Specifically,

Irene Baldridge admits that she worked for and was married to Alie Baldridge, whom

49
she described as owning the real estate brokerage, International Realty Plus. [Affid of

Irene Baldridge] By admitting that she was married to and worked for Alie Baldridge,

Baldridge in effect admitted to elements of section 171.002 (a) and (c) because she was

married to Alie Baldridge, which meets the test for consanguinity under Chapter 573 of

the Government Code, and no other owners or employees other than Alie Baldridge

and Irene Baldridge have been identified for the real estate brokerage International

Realty Plus.

Additionally, the facts contained in Daniel Bee’s Affidavit are sufficient to

establish a genuine issue of material fact as to whether or not Irene Baldridge and/or

Alie Baldridge and/or International Realty Plus had an interest that was either legal or

equitable in real property that exceeded $2,500 in value. Both Irene Baldridge and her

late husband Alie Baldridge are alleged to have solicited an offer to purchase land,

which was worth approximately $1.975 Million, which would have led to a financial

windfall and personal benefit to both Irene Baldridge and her husband Alie Baldridge.

The Affidavit and the Amended Petition also describe how Irene Baldridge arranged

and conducted a meeting at her own real estate offices in order for three of her real

estate clients to negotiate the terms of a letter of intent to buy the Property in Question.

The estimated real estate commission on the Property in Question was to be

approximately $120,000, but yet, Irene Baldridge concealed all of these previous

dealings on the real property matter as well as her and/or her husband’s equitable

interest in the land from the City of Leon Valley and her fellow council members
50
before proceeding to a vote.

According the Bee Affidavit, because Irene Baldridge had a significant business

interest in the land that was being voted on in council and in the business that stood to

make tens of thousands of dollars in commissions on the sale of the land, Irene

Baldridge had a mandatory duty to declare the conflict in an Affidavit, then to recuse

herself and abstain from any action by City Council considering the matter, under the

conflict of interest rules outlined in Chapter 771 of the Local Government Code. This

disclosure and abstention was not only mandatory, but failure to do so was also a Class

A Misdemeanor, and also constituted a violation of the Texas Open Meeting Act.

The Vote by City Council Involving Irene Baldridge was Voidable: Texas

Local Government Code Section 771.006 renders the vote in which an individual with

a conflict of interest participated as voidable by the court if “….the measure that was

the subject of an action involving a conflict of interest would not have passed the

governing body without the vote of the person who violated the chapter.” Section

171.006. After diligent search, counsel could not find any case law interpreting this

section, and Appellants citation of Sosa v. City of Corpus Christi 739 S.W.2d 397, 405

(Tex. App. – Corpus Christi 1987, writ den’d), is easily distinguishable because it is

not interpreting section 171.006 Local Gov’t Code. Appellants argue that the

calculation required to determine if “the measure would not have passed” is simple

arithmetic, but they offer no persuasive or controlling authority stating that is the

exclusive method of determining if the “measure would not have passed.” By
51
contrast, Appellees argue that the best evidence of whether a measure might have

passed or not is from the participants themselves.

The Affidavits of Arthur Reyna [C.R. V7, 180] and Rudy Garcia [C.R. V7,

178] meet the test of raising a genuine issue of material fact on the issue of whether the

measure before city council would not have passed. Where there is conflicting

evidence on the same issue, the evidence offered by the non-movant must be taken as

true. Miranda at 228.

The Affidavit of Arthur Reyna and the Affidavit of Rudy Garcia, are relevant

and material on the issue of whether the measure before city council would not have

passed. Both Mr. Reyna and Mr. Garcia testified in their Affidavits they were actually

in favor of the zoning modification request. In fact, the minutes of the City Council on

January 4, 2011, indicate that Mr. Reyna and Mr. Garcia actually facilitated and

attended meetings between developers and the residents in the community.

Furthermore, the minutes from the council meeting on the evening of the vote on March

1, 2011, indicate that Rudy Garcia changed his vote from “No” to “Yes”, demonstrating

some uncertainty about the vote.

Regardless of any questions about why he changed his vote, in his Affidavit, Mr.

Rudy Garcia has now made it abundantly clear that he knew nothing about Irene

Baldridge’s alleged financial or real property interest, and that if Baldridge had

disclosed the conflict of interest or if she had abstained that Mr. Garcia would have

changed his vote, and the outcome of the vote would have changed. Directly addressing
52
this issue raised by Local Gov’t Code Section 771.006, Mr. Garcia stated as follows:

4) ‘I have read the facts alleged in the Amended Petition in this
case alleging that Council Person Irene Baldridge had, or may
have had, a conflict of interest, in that she allegedly
represented potential buyers for the land at issue in the vote. If
such information had been known to me at the time of the vote
on the rezoning request, and/or if Council Person Baldridge
had abstained from participating in and voting on the request,
then I would have ultimately changed my vote on the matter
and voted in support of rezoning the land.

5) ‘Because my vote would have changed and because I also
believe other council member’s votes would have changed if
Council Person Baldridge had declared a conflict of interest
and/or if had she abstained, the motion to deny the rezoning
request would not have passed without Council Person
Baldridge’s vote.
The Affidavit of Rudy Garcia, [ ]

Similarly, Appellees created a fact issue by offering the Affidavit signed by

former Leon Valley City Councilman, Mr. Arthur Reyna, who also testifies that the

outcome of the vote would have been completely different if Irene Baldridge had either

disclosed her real estate dealings regarding the land in question or if she had abstained

from the vote. Mr. Reyna’s affidavit provides, in relevant part as follows:

4) ‘I have read the facts alleged … that …Irene Baldridge had, or
may have had, a conflict of interest, in that she allegedly
represented potential buyers for the land at issue in the vote. If
such information had been known to me at the time of the vote
on the rezoning request or if Council Person Baldridge had
abstained from participating in and voting on the request, then
I would have changed my vote on the matter and voted in
support of rezoning the land.
5) ‘Because my vote would have changed and because I also
53
 believe other council member’s votes would have changed if
Council Person Baldridge had declared a conflict of interest or
if had she abstained, the motion to deny the rezoning request
would not have passed without Council Person Baldridge’s
vote.
The Affidavit of Arthur Reyna, [ ]

Further Evidence of a Different Outcome if Baldridge Had Not Participated

: Based upon the Affidavits of Reyna and Garcia as well as the Mayor’s prior

statements in support of the Plaintiffs’ zoning request, there is now more than a scintilla

of evidence to raise a genuine issue of material fact that if Irene Baldridge had abstained

– as she failed to do – then the vote would have been tied at 2 votes in favor and 2 votes

against, and the Mayor would have been required to cast the tie-breaking vote. It is well

established that in 2011, the Mayor was on record as supporting the Plaintiffs’ zoning

modification measure. See, for example, the January 4, 2011 Regular City Council

Meeting Minutes, January 4, 2011,] where Mayor Chris Riley spoke in favor of the

development:

Mayor Riley stated the Council should not allow the
opportunity to go by; it is a tremendous opportunity to work
with developers that get the sustainability aspect. [Mayor
Riley] emphasized the drainage infrastructure cost being too
high for the R1 as the primary reason the property has never
been developed. [Mayor Riley] concluded the Council should
at least try to find a workable solution; that the Council owes it
to the citizens and the City of Leon Valley. [Mayor Riley]
noted the City needs this development.
City Council Meeting Minutes of the City of Leon Valley,
Texas, January 4, 2011, Page 7 of 10, Bates # 01706.
(emphasis added).
Mayor Riley was in Favor of the Development Project in January 2011:
54
Less than two months before the March 1, 2011, vote on City Council, Mayor Riley had

spoken forcefully in favor of the Plaintiffs’ zoning request. It is not only foreseeable,

but it is also highly likely that Mayor Riley would have voted in favor of the Plaintiffs’

zoning request on March 1, 2011. Although Mayor Riley did not vote on the evening of

March 1, 2011, because her vote was not necessary to break the tie, the Affidavit of

Arthur Reyna and the Affidavit of Rudy Garcia raise a serious question of whether the

measure would have passed or failed. Since we now know they would have voted in

favor of the zoning request, which indicates that the zoning vote would have been a tie,

with the Mayor casting a vote in favor of the zoning request, and the outcome of the

vote would have been completely different if Irene Baldridge had not participated.

This meets the criteria to void the city council vote as outlined in Texas Local Gov’t

Code §171.006, which permits the Court to make a finding that upon final trial, the

outcome would have been different had Baldridge not participated. This is all that is

necessary to declare void the city council vote.

Although the Appellants argue that Local Gov’t Code §171.006 is one of simple

arithmetic, which can be accomplished simply by subtracting Baldridge’s vote from the

total, this overly simplistic model is not supported or mandated by the statute. There is

no direct or binding legal authority to support Appellants’ interpretation of §171.006.

Under the Appellants’ interpretation, the Court may only use simple static, arithmetic to

interpretation the statute. Appellees argue for a dynamic interpretation of §171.006 of

the Local Gov’t Code, and one which is much more realistic and is supported by the

55
actual facts given by the persons who actually voted. Recalling that all doubts about the

evidence must be resolved in favor of the Appellees, the Court should uphold the

decision to deny the plea to the jurisdiction .

Both Arthur Reyna, and Rudy Garcia were council members who actually

participated in the March 1, 2011, vote, and under oath, they have stated that the

outcome would have been different had Baldridge either not voted, or declared her

conflict of interest. This statutory interpretation is much more realistic, and now that

two council members have testified that their votes would have changed without

Baldridge’s participation, the trial court could easily conclude that at least there was a

fact question on whether the zoning or rezoning request would not have passed without

Council Person Baldridge’s vote.

Conclusion: There are Numerous Genuine Issues of Material Fact on the

Question of Conflict of Interest

On the one hand, Appellant Baldridge offers her Affidavit [Appellant’s Brief] in

which she denies having any written contract with Mr. Matlock, who was a prospective

buyer of the property. On the other hand, Appellee Daniel Bee in his Affidavit (C.R.

V7, 157-173) offers two (2) direct and unequivocal admissions by party opponent

Baldrige, where she not only states that she did, in fact, represent prospective

purchasers of the land in question, she also schedules a follow-up meeting at her office

to discuss price and other terms of the sale. The first admission by Baldridge comes

from a recorded telephone conversation between with Baldridge and Bee that occurred
56
on July , 2010, (See, Reference, Affidavit and attachment on pages 4-5-6). Regarding

the written offer to purchase the land, called a “letter of intent,” Baldridge states:

I Baldridge: Where should I send it?
D. Bee: Have them send it to you, Irene, and then from you to me and
that it maintains your relationship.
I Baldridge: Ok…..
Affidavit of Daniel Bee, (C.R. V7, 157-173)
Regarding Irene Baldridge’s second admission that she represented prospective

purchasers of the property in question, Appellant Daniel Bee’s Affidavit (C.R. V7,

157-173] states as follows:

Present at this August 10, 2010, meeting at the office of
International Realty Plus, were Alie Baldridge, Irene Baldridge, Steve
Hanan’s son and Bill Jackson of Hanan Development Co. and David
Matlock of MI Homes….At the beginning of this meeting, Steve Hanan’s
son, Bill Jackson of Hanan Development Co. and David Matlock all
answered, ‘Yes, Irene Baldridge was their agent and representing
them in this transaction,’ and I then asked Irene Baldridge if Mr.
Hanan, Mr. Jackson and Mr. Matlock were her clients, and Irene
Baldridge answered, ‘Yes, they’re my clients.’
Of these three clients of Irene Baldridge, David Matlock of MI
Homes subsequently made an offer to purchase the property, which
demonstrates that he was a bona-fide prospective purchaser at the time
we met at Irene Baldridge’s office six (6) months before the vote on
March 1, 2011. In June 2011, Mr. Matlock once again approached me
to purchase the property for approximately $1.975 million, and once
again, he informed me that he wanted Irene Baldridge involved in the
transaction.
Affidavit of Daniel Bee, (C.R. V7, 157-173) (emphasis original).

There are two important factual inferences that can be drawn from the conflicting

testimony from Baldridge and Daniel Bee: First, the facts cannot be reconciled; they
57
both cannot be telling the truth. There is therefore a genuine issue of material fact.

Since we know that Baldridge never disclosed the alleged representation to city council;

that she never recused herself, and that she voted ultimately on the matter, we can

deduce that she has every motive or incentive not to disclose the representation to

anyone, otherwise she could be potentially liable and/or perhaps lose her official

immunity. Although Baldridge denies having any written contract with Mr. David

Matlock, she does not deny having “any contract” or “agreement” to represent the other

parties who were in attendance at the meeting. If this factual dispute with Mr. Bee’s

affidavit is taken as true – that she represented the potential buyers of the land, then it

would explain why Matlock requested to involve Baldridge in the transaction to

purchase the same property approximately three (3) months after Baldridge’s vote on

city council. [Affidavit of Daniel Bee CR, C.R. V7, 157-173] The one reasonable and

favorable inference that can be drawn from this evidence is that Mrs. Baldridge did, in

fact, represent Matlock under a verbal or unwritten agreement – and that after the city

council vote, led by Baldridge, each of them was reluctant to admit the undisclosed

relationship. This simple factual inference would explain all of the conflicting evidence

on the issue of: How could Irene Baldridge represent an undisclosed purchaser of the

property in question before and after the zoning vote, but yet maintain that she had no

“contract”? Also, it is noteworthy that Baldridge always denies having any “written

contract” with Matlock and his company M/I homes, but she never identifies the other

entities at the meeting. The other entities were an actual development company known
58
as Hanan Development Co. It is important to note that there is no evidence from either

Hanan Development Co. or one of the principals at the meeting, Bill Jackson, that

neither Irene Baldridge, Alie Baldridge or International Realty Plus represented them

regarding the property in question. We are faced with conflicting evidence on a

jurisdictional issue: According to Appellee Daniel Bee: Baldridge solicited a price on

the property, so that her undisclosed client[s] could submit an offer; Baldridge then sets

up a meeting at her own office to further discuss the terms of the offer to purchase, and

then when the meeting takes place at her office, everyone present admits to Appellee

Bee that Baldridge is representing the potential buyers. If Baldridge did not represent

the potential buyers, she definitely was very involved in the transaction. Contrast this

information with the Affidavit of Irene Baldridge, where she admits that the phone call

to Daniel Bee took place, that she arranged the meeting, that the meeting took place at

her office, and at her request, that potential buyers were present at the meeting, and that

one of them actually made an offer to purchase the property, but yet, she denies that she

represented anyone at the meeting. For someone who supposedly has “no interest” in

the property, she certainly was involved with both the sellers and potential buyers of

the property. .

Regarding the issue of Appellant Baldridge’s contract to represent a purchaser of the

land in question from the Appellees, once again, the court is faced with two conflicting

pieces of evidence on a central jurisdictional fact, and once again, the standard of

review from Miranda dictates that “[w]hen reviewing a plea to the jurisdiction in which
59
the pleading requirement has been met and evidence has been submitted to support the

plea that implicates the merits of the case, [the court shall] take as true all evidence

favorable to the nonmovant. See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911

(Tex.1997). [The court shall] indulge every reasonable inference and resolve any

doubts in the nonmovant's favor. Id.” Miranda at 228. When this standard is applied,

the conflicting testimony from the parties must be resolved in favor of the Appellees,

and the decision of the trial court in denying the plea to the jurisdiction should be

affirmed in all respects.

III.

APPELLEES’ RESPONSE TO ISSUE NO. 3

The trial court properly denied the City of Leon Valley's Plea to the

Jurisdiction because Appellees have properly invoked the Court's jurisdiction for

constitutional, nuisance, declaratory judgment and tort claims.

Appellants incorrectly argue that there is no cause of action for damages under

Article 1, §19 of the Texas Constitution by claiming that Appellees’ claims for

monetary damages do not invoke the trial court’s jurisdiction, in accordance with the

case of Smith v. City of League City, 338 S.W.3d 114 (Tex. App. – Houston [14th Dist.]

2011, pet. Ref’d.). Appellants have failed to take into consideration that Appellees have

also pleaded for both injunctive relief and declarative relief in the Second Amended

Petition, . The Smith court determined that a plea for declaratory relief was sufficient to

60
waive immunity and invoke the jurisdiction of the court.

Furthermore, Appellees have alleged that the actions of Appellant City constitute

a takings claim, under Article 1 §17 of the Texas Constitution, for which the only

adequate remedy is monetary damages.

Appellants’ assertion that Appellee’s plea for inverse condemnation, taking or

nuisance is insufficient is based on Appellants’ incorrect reading of appellee’s claims.

Appellants argue that appellees have alleged a negligence- based nuisance against the

Appellant City, which is insufficient to support a finding of inverse condemnation, a

taking or nuisance. In fact, Appellees have pleaded that the acts were both intentional

and negligent; specifically, the actions of the Appellant City and the unknown

employees were intentional, while actions of other individual non-governmental

Defendants were negligent in nature.

Specifically, Appellees have alleged that Appellants invaded the property in

question, without any legal right, permit or permission, or due process and proceeded to

dig a trench on the property in question . . . (¶60 Second Amended Petition) and that

the City of Leon Valley was fully aware and on notice of the lack of legal authority or

permission to enter, take, damage or alter the property in question. (¶62 Second

Amended Petitioner) Appellees further alleged that the intentional actions of the

defendants have created a public and private nuisance and constitute a trespass for

which the appellees seek real-property damages. (¶ 67 Plaintiffs Second Amended

Petition)

61
 Alternatively, Appellee would assert that any deficiency in the pleading of intent

requisite for a takings claim under article 1 § 17 of the Texas Constitution may be

corrected by amendment and is not a basis for dismissal of the suit or claim. See Harris

County Flood Control Dist. v. Adam, 56 S.W.3d 665 (Tex. App.—Houston [14th Dist.]

2001, pet. dism’d w.o.j.)(trial court properly denied plea to the jurisdiction because

even if a plaintiff alleged mere negligence rather than intent, that pleading failure could

be corrected by amendment); Barto Watson, Inc. v. City of Houston, 998 S.W.2d 637

(Tex. App.—Houston[1st Dist.] 1999, pet. denied)(dismissal for lack of jurisdiction was

error when failure to plead intent was curable by amendment)

Appellants have used Motorized Equipment and Unlike Overby there is a

Sufficient Nexus

Use of motorized equipment or vehicles to dig the trench on property in question

is an adequate nexus between the intentional activity and the damage caused.

Appellants cite San Antonio Water System v. Overby, 429 S.W.3d 716 (Tex. App.—San

Antonio, 2014, no pet.) in support of their claim and argue that the case at bar is similar

to Overby and that a proper or sufficient nexus between the use of equipment or

vehicles and damage to the property has not been alleged by Appellees. However, the

facts in Overby are easily distinguishable from the facts of this case in that the only

damage to the property in the Overby case was caused by the use of motor vehicles to

create a condition that was not actually on the Overby’s property whereas in our case,

the damage includes, though is not limited to, the actual intentional trespass on

62
Appellees’ property to drive their trucks and to intentionally dig a trench on Appellee’s

property. Also, unlike Overby, there is no easement permitting the city to enter

Appellees’ property for purposes of trenching.

Because the City of Leon Valley equipment or vehicles were intentionally used

to dig a trench on Appellee’s property, which trench is in itself included in the

wrongful damage to Appellee’s property, there is a direct, sufficient, and proper nexus

between the use of equipment or vehicles and the damage to the Appellees’ property.

Conversely, Appellants also argue that Appellees’ intentional tort claims do not

overcome immunity because the Texas Tort Claims Act does not apply to such

intentional torts. In support, Appellant cites the case of Texas Bay Cherry Hill, L.P. v.

City of Fort Worth, 257 S.W.3d 379 (Tex. App.—Fort Worth 2008, no pet.).

Appellant’s argument, however, fails to acknowledge that the damage caused by the

intentional torts alleged by Appellees are so egregious that they fall under the takings

clause of the Texas Constitution. Even Appellant’s own case, Texas Bay Cherry Hill,

acknowledges that the doctrine of governmental immunity does not shield a

governmental entity from an action for compensation under the takings clause.

RESPONSE TO APPELLANT’S ISSUE NO. 4

A. There Are Significant Exceptions To The Legislative Immunity Claimed By

Baldridge, And Appellees’ Claims Fall Under The Recognized Exceptions To The

Legislative Immunity.

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 i. There is no legislative immunity for actions that do not constitute

“legislative activity”

Contrary to the sweeping assertions of Irene Baldridge, legislative immunity is

not absolute. The lead case cited by Irene Baldridge and City of Leon Valley, In Re

Perry, 60 S.W.3d 857 (Tex. 2001) references at least two different exceptions or

limitations to legislative immunity – both of which apply to the claims against Irene

Baldridge. The first exception to absolute legislative immunity that is discussed in the

landmark case of In Re Perry, Id. involves an inquiry into whether the activity by the

elected official constitutes “legislative activity.”

Whether the function the actor performs is legislative
depends upon the nature of the act. Bogan v. Scott-Harris,
523 U.S. 44, at 55, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998);
[remaining citations omitted]. An action is legislative in
nature when it reflects a discretionary, policymaking
decision of general application, rather than an individualized
decision based upon particular facts. Bogan, Id.

In Re Perry, Id. at 860.

Irene Baldridge has failed to analyze the significant amendments contained in

Plaintiffs’ Second Amended Petition. Whereas previous versions of the Plaintiffs’

petitions centered on the March 1, 2011, zoning vote before Leon Valley City Council

as the wrongful act which served as the basis for tortious interference and other torts

such as conspiracy, the focus in the Plaintiffs’ Second Amended Petition are actions for

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which there is no immunity such as the violations of the Texas Open Meetings Act and

the Texas Local Government Code. Furthermore, since the In Re Perry case establishes

that there can be no legislative immunity for non-legislative activities, it is significant

that Irene Baldridge has been sued in this matter in four (4) different capacities that

have nothing to do with her legislative duties (See, Second Amended Petition, Para. 20).

In her non-governmental capacities, Irene Baldridge has been sued as: (a) a real estate

agent, (b) a business owner/officer of International Realty Plus; (c) a spouse and

business partner of the late Alie Baldridge; and (d) as a legal representative of the Estate

of Alie Baldridge. None of these individual and non-governmental capacities has

anything to do with Baldridge’s legislative activities or her legislative duties.

In her non-legislative capacity as a real estate agent, business owner, and agent

and co-conspirator of Alie Baldridge, Irene Baldridge committed four (4) different torts:

(1) tortious interference with a contract – Cause of Action No. 4, Para 99;

(2) tortious interference with a prospective business relationship – Cause
of Action No. 5, Para 108;

(3) civil conspiracy to commit tortious interference – Cause of Action No.
9, Para 137; and

(4) civil conspiracy to solicit a bribe or kickback – Cause of Action No. 9,
Para 137-38.

None of the four (4) torts committed by Irene Baldridge have anything to do with

her vote on city council (i.e., the legislative activity) that Baldridge took on March 1,

2011. In her legislative duties, she was voting on whether or not to rezone the

Plaintiffs’ land, but when she committed the torts, she was offering to buy the property
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– tortuously interfering with another real estate broker/agents contracts. Furthermore,

the Affidavit of Daniel Bee, (C.R. V7, 157-173 – See Paragraphs 14 a, b, c on page 9)

outlines competent, first-hand summary judgment evidence regarding solicitation of the

bribe and conspiracy involving Irene Baldridge and Alie Baldridge that occurred after

the vote by City Council.

If the torts committed by Irene Baldridge – along with the husband, her business

partner and sponsoring broker –occurred after the vote in March 2011, then they

could not possibly be classified as legislative activity as Baldridge has alleged, and they

has no immunity for such – after- the-facts wrongful activity. To hold otherwise would

shield a former legislator for life from liability for any wrongful – and potentially

criminal conduct – that the former legislator engages in – even long after voting a

particular piece of legislation. Similarly, Baldridge is trying to use the fact that she

once voted on zoning issue to protect her from subsequent – after-the-vote -- tortious

conduct such as interference with a contract of a competing real estate broker, and her

husbands solicitation of a bribe or kickback in the form of a real estate commission.

This is turning legislative immunity on its head, and tantamount to the offensive use of

privilege, which as the court is aware, constitutes a waiver of the privilege.

Of course, legislative immunity does not function as a cloak behind which the

legislator may enage in wrongful activity with impunity. A careful reading of the

authority heavily relied upon by Baldridge, In Re Perry, 60 S.W.3d 857 (Tex. 2001),

makes it clear that legislative immunity is not absolute, because it does not and was
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never intended to cover non-legislative activities. All of the four (4) torts for which

Irene Baldridge has been sued, center on the actions taken separate and apart from any

deliberative, discretionary of policy making, legislative activities; therefore, they are not

excused by legislative immunity.

ii. No Immunity For Alleged Non-Legislative or Activities That Could

Result In Criminal Penalties: Actions that constitute criminal activity are outside the

scope of a public official’s discretionary duties, and no reasonably prudent public

official would believe that such conduct, which could possibly result in criminal

liability, could be done in good faith or could be within the scope of his or her

discretionary duties. “When an official with legislative duties engages in activities

insufficiently connected with the legislative process to raise genuine concern that

inquiry into the motives for his actions would thwart his ability to perform legislative

functions, absolute legislative immunity does not apply.” Camacho v. Samaniego, 954

S.W.2d 811 (Tex. App. 1997). The facts alleged by Daniel S. Bee [ C.R. V7, 157-173 ]

not only describe actions clearly outside the scope of legitimate legislative activity,

they also describe a pattern of corrupt and unlawful behavior by both Irene Baldridge

and her late husband Alie Baldridge. Mr. Bee’s Affidavit characterizes a long pattern

of threats and intimidation used by the Baldridges as they sought “kick backs” or

sought to implement a “pay to play” scheme, where the Plaintiffs were solicited to

include the Baldridges in the lucrative real estate transaction in exchange for favorable

treatment and the exercise of Irene Baldridge’s discretion as an elected official with
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respect to the Plaintiffs zoning application before city council. See, The Affidavit of

Daniel S. Bee, [C.R. V7, 157-173] Paragraphs 13-14, pg. 8-9. These facts are

sufficient to create a fact issue on the dispute over conflict of interest, official or

legislative immunity and the Open Meeting Act violations.

iii. Legislative immunity is voluntarily waived by offering testimony in a

suit.

In Re Perry, Id. the lead case cited by Irene Baldridge for claimed legislative

immunity also discusses a second important limitation and exception to legislative

immunity. According to In Re Perry, legislative immunity can be voluntarily waived

by offering testimony a suit.

…authority suggests that a legislator's testimonial privilege
may be subject to limited, very closely guarded exceptions
when invidious legislative intent is an element of a cause of
action. See Village of Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U.S. 252, 268, 97 S.Ct. 555, 50
L.Ed.2d 450 (1977); Marylanders for Fair Representation,
Inc. v. Schaefer, 144 F.R.D. 292, 301 n. 19, 305
(D.Md.1992).

In Re Perry, Id. at 861.

The Texas Supreme Court cites both the Arlington Heights case and the

Marylanders case where both courts held that the legislative immunity to suit was

waived by voluntarily testimony offered by the public officials. In our case, Irene

Baldridge has not only testified by way of her Affidavit (See, “Exhibit A” to Irene

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Baldridge’s First Amended Plea to the Jurisdiction and the Motion for Summary

Judgment), she has also specifically testified concerning her legislative activities,

deliberations, discretionary acts. (See Page 3 of Affidavit of Irene Baldridge). This

constitutes a voluntary waiver of any legislative immunity she might claim.

Furthermore, TOMA specifically authorizes actions against members of a

governmental body. In Riley v. Comm’rs Court, 413 S.W.3d 774 (2013 Tex. App.

LEXIS 6292; 2013 WL 2348272), the court acknowledged that TOMA authorizes

actions against members of a governmental body. Plaintiffs contend that this case,

where there are five (5) separate violations of TOMA – each of which involves Irene

Baldridge – and four (4) different torts including possible criminal conduct, in which

Irene Baldridge and her late husband Alie Baldridge are central co-conspirators

constitute the special circumstances for a waiver of legislative and governmental

immunity, which the Court references in In Re Perry. This exception is not only in the

public interest, but it is in keeping with the broad application and intent of the Texas

Open Meetings Act, which was intended to safeguard the public interest and shine the

light on corrupt practices.

CONCLUSION

Appellants City of Leon Valley and Councilmember Irene Baldridge, are not

entitled to immunity because each of the causes of action asserted against the Appellants

fall within recognized constitutional and statutory exceptions to sovereign immunity,

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official immunity and legislative immunity.

Under the applicable standards of review under Tex. Dept. of Parks & Wildlife v.

Miranda, 133 S.W.3d 217 (Tex. 2004), both Appellant Irene Baldridge’s and the City of

Leon Valley’s claims of immunity fail because there genuine issues of material fact on

jurisdictional issues.

With five (5) separate violations of the Texas Open Meetings Act properly

alleged and supported by sufficient, credible evidence, there is no immunity for the City

of Leon Valley, because the Texas Open Meeting Act authorizes, actual monetary

damages, injunctive, mandamus and declaratory relief as well as attorneys fees and

taxable court costs.

Appellant Baldridge’s activities, including her failure to disclose her conflict of

interest and her failure to recuse herself from the city council vote on the Appellees

property all fall within recognized exceptions to the absolute and legislative immunity.

PRAYER

WHEREFORE PREMISES CONSIDERED, the Appellees jointly pray that the

Court shall affirm the decision of the trial court denying the Plea to the Jurisdiction,

filed by City of Leon Valley, Texas, Unknown Employee(s) of the City of Leon

Valley, and Irene Baldridge and affirm the denial of the Appellant Irene Baldridge's

Second Amended Plea to the Jurisdiction; and for such further relief, in law and in

equity, to which the Appellees may show themselves justly entitled

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 Respectfully Submitted,

DIAZ JAKOB, LLC
The Historic Milam Building
115 E. Travis St, Suite 333
San Antonio, TX 78205
Tel. (210) 226-4500
Fax (210) 226-4502
E-service/E-Mail:
ORD@diazjakob.com

By:_____________________________
O. RENE DIAZ
State Bar No. 05804775
Attorney for Appellees

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument has
been served in accordance with the Texas Rules of Appellate Procedure
on:___________12TH _____________February, 2015, to the following:

Patrick Bernal
Clarissa M. Rodriguez
DENTON NAVARRO ROCHA BERNAL HYDE & ZECH, P.C.
A Professional Corporation
2517 N. Main Avenue
San Antonio, Texas 78212
210/227-3243 phone
210/225-4481Facsimile
Email: patrick.bernal@rampage-sa.com
Email: cla rissa.rodriguez@rampage-sa.com
COUNSEL FOR APPELLANTS

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Darby Riley
Riley & Riley, Attorneys at Law
320 Lexington Avenue
San Antonio, Texas 78215
Attorneys for Irene Baldridge

______________________________________
O. RENE DIAZ

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