Maria De Jesus Garza, Guillermo Torres, and Joe E. Vega, in Their Individual Capacities v. Juan Jose "JJ" Zamora, Sr. and Martin C. Cantu

ACCEPTED
13-15-00237-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/3/2015 4:43:03 PM
CECILE FOY GSANGER
CLERK

NO. 13-15-00237-CV

FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH DISTRICT OF7/6/2015
TEXAS 8:00:00 AM
AT CORPUS CHRISTI - EDINBURGCECILE FOY GSANGER
Clerk

CITY OF PORT ISABEL, TEXAS, MARIA DE JESUS GARZA, GUILLERMO
TORRES AND JOE E. VEGA
Appellants,

VS

JUAN JOSE “JJ” ZAMORA, SR., AND MARTIN C. CANTU
Appellees.

From Cause Number 2015-DCL-02342
th
In the 444 Judicial District Court of Cameron County, Texas

APPELLANT CITY OF PORT ISABEL’S BRIEF

Robert L. Collins
Texas Bar No. 04618100
Audrey Guthrie
Texas Bar No. 24083116
P.O. Box 7726
Houston, Texas 77270-7726
(713) 467-8884
(713) 467-8883 Facsimile
houstonlaw2@aol.com
ATTORNEYS FOR CITY OF
PORT ISABEL

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

Appellants Counsel for Appellants
City of Port Isabel Robert L. Collins
Texas Bar No. 04618100
Audrey Guthrie
Texas Bar No. 24083116
P.O. Box 7726
Houston, Texas 77270-7726
(713) 467-8884
(713) 467-8883 Facsimile
houstonlaw2@aol.com

Maria de Jesus Garza Michael R. Cowen
Joe Vega Texas Bar No. 00795306
62 E. Price Road
Brownsville, TX 78521
(956) 541-4981
(956) 504-3674 Facsimile
michael@cowenlaw.com

Guillermo Torres Frank E. Perez
Texas Bar No. 15776540
300 Mexico Boulevard
Brownsville, TX 78520
(956) 504-5403
(956) 504-5991 Facsimile
fperez@feperezandassociates.com

Appellees Counsel for Appellees
Juan Jose “JJ” Zamora Gilbert Hinojosa
Martin C. Cantu 622 East St. Charles St.
Brownsville, Texas 78520
956-544-4218
Fax: 1-956-544-1335
ghinojosa@ghinojosalaw.net

ii
 TABLE OF CONTENTS

Identity of Parties and Counsel ............................................................................... ii

Index of Authorities ................................................................................................ v

Statement of the Case............................................................................................. vi

Statement of Oral Argument .................................................................................. vi

Issue Presented: ...................................................................................................... vi

The Temporary Injunction was granted in violation of Texas law,
because Appellees did not present evidence to support their
pleadings of a probable right to recovery.

Statement of Facts ................................................................................................... 1

Summary of Arguments .......................................................................................... 2

Argument and Authorities....................................................................................... 3

I. Supporting Law ............................................................................................ 3

II. The Temporary Injunction was granted in violation of Texas law,
because Appellees did not present evidence to support their pleadings of
a probable right to recovery. ......................................................................... 4

A. Appellees Cantu and Zamora testified that they conducted
business with the City and, therefore, supported the
Commission’s finding that they were in violation of the City
Charter, Section 2.02 .......................................................................... 5

B. Appellees Cantu and Zamora presented evidence that supported
the validity of the hearing and voting procedure, including their
own use of the voting procedure at the same hearing ........................ 6

C. All the other evidence presented by Appellees was not relevant to
their probable right to recovery addressing instead the irrelevant

iii
 possibility that another member conducted business with the city
as well ................................................................................................. 7

Conclusion and Prayer ............................................................................................ 8

Certificate of Service ............................................................................................ 10

Certificate of Compliance ..................................................................................... 10

Certification .......................................................................................................... 11

iv
 INDEX OF AUTHORITIES

CASES PAGE(S)

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) ....................... 4, 5, 8

EMS USA, Inc. v. Shary, 309 S.W.3d 653, 657 (Tex. App. Houston 14th Dist.
2010) ....................................................................................................................... 4

IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 197 (Tex. App.--Fort
Worth 2005, no pet.) ............................................................................................... 4

Wheel Factory v. Sma Props., L.P., 2002 Tex. App. LEXIS 4318 (Tex. App. Dallas
June 18, 2002) ......................................................................................................... 4

STATUTES AND CONSTITUTIONS PAGE(S)

Port Isabel City Charter, Section 2.02 ........................................................ 1, 2, 4, 5

Tex. R. App. P. 6.3.................................................................................................... 10

Tex. R. App. P. 9.4(e) ............................................................................................... 11

Tex. R. App. P. 9.4(i) ................................................................................................ 11

Tex. R. App. P. 9.4(i)(1) ........................................................................................... 11

Tex. R. App. P. 9.5 (b)(d) and (e) ............................................................................. 10

v
 STATEMENT OF THE CASE

Nature of underlying proceeding Appellees, Juan Zamora and Martin Cantu
were removed from their offices as City
Commissioners for violations of the Port
Isabel City Charter. Appellees filed suit
against Relators, the City of Port Isabel,
two City Commissioners, and the Mayor in
their personal and official capacities
claiming that Appellees should not have
been removed from office and seeking an
injunction to undue the vote and reinstate
them into their offices.

Action complained of: On April 24, 2015, a hearing was held on
Appellants Plea to Jurisdiction and
Appellee’s Temporary Injunction. The
Temporary Injunction was erroneously
granted on April 24, 2015.

STATEMENT REGARDING ORAL ARGUMENT

There is sufficient applicable and well-established law to decide this issue

without oral arguments. However, if Appellees are granted oral arguments, then

Appellants request an equal opportunity to be heard and present argument.

ISSUES PRESENTED

The Temporary Injunction was granted in violation of Texas law, because

Appellees did not present evidence to support their pleadings of a probable right to

recovery.

vi
 STATEMENT OF FACTS

During a properly-noticed public meeting, and pursuant to a provision of

the Port Isabel City Charter, the City Commission, including Appellees, voted on

the potential violation of City Charter, Section 2.02, of three of the

Commissioners: Appellant Torres, Appellee Cantu, and Appellee Zamora. During

the meeting, by a duly-recorded majority vote, Appellees were removed from their

positions on the City Commission due to their business dealing with the City in

violation of Section 2.02. Port Isabel City Charter Section 2.02 provides for the

disqualification of office holders and candidates for City elected office for, among

other things, doing business with the City.

Appellees filed suit against Appellants in their individual and official

capacity for their actions in voting to remove Appellees from their positions on

the City Commission for violation of Section 2.02 of the City Charter by each

Appellee. CR4. Appellees contend by their petition that 1) they were erroneously

removed; or 2) in the alternative, that the City Charter provision is

unconstitutional. CR4. Appellees sought a temporary injunction requiring

reinstatement of Appellees as voting members of the Port Isabel City

Commission. A hearing was held on a Plea to Jurisdiction filed by Appellants and

Appellee’s Motion for Temporary Injunction on April 24, 2015, during which

Appellees presented three witnesses. RR:1. At the hearing, Appellees testified and

1
confirmed their own business dealings with the City and their participation in the

vote on whether or remove another commissioner for the same offense at the same

meeting. The court verbally granted the temporary injunction at the hearing. RR:1,

p. 121, ln. 5. The court did not sign a Temporary Injunction order at that time and

no bond was ever filed. Appellants filed an appeal on the denial of their temporary

injunction and notice of stay due to a separate appeal of the denial of the City’s

Plea to Jurisdiction, on May 12, 2015. CR102. That day, after Notice of Stay, the

Court appears to have signed an order granting the temporary injunction. To this

day, no bond has been filed.

SUMMARY OF ARGUMENTS

I. The Temporary Injunction was granted in violation of Texas law,
because Appellees did not present evidence to support their pleadings of
a probable right to recovery.

A. Appellees Cantu and Zamora testified that they conducted
business with the City and, therefore, supported the
Commission’s finding that they were in violation of the City
Charter, Section 2.02.

At the Hearing on the Temporary Injunction, Appellees confirmed the
facts that were the basis of the City Commission finding them in
violation of the City Charter, Section 2.02. Appellants confirmed that
they had automotive establishments and that, through those
establishments, they conducted business with the City during their
time as City Commissioners. RR:1 p. 94, ln 1-3, p.86, ln. 16-25; RR:1
p.86, ln. 8-22, p. 107, ln. 11-22.

2
 B. Appellees Cantu and Zamora presented evidence that supported
the validity of the hearing and voting procedure, including their
own use of the voting procedure at the same hearing.

Appellees presented evidence that they placed on the agenda, and
actively voted, on another Commissioner’s potential business dealings
with the City and possible violation of the same City Charter
provision at the same meeting where their business dealings were
raised. Appellees confirmed that neither they, nor anyone else, raised
any concerns about the Commission’s ability to vote on
Commission’s business dealings and possible violations of the City
Charter or the Commission’s ability to vote on the issues at that
meeting until they were in litigation.

C. All the other evidence presented by Appellees was not relevant to
their probable right to recovery addressing instead the irrelevant
possibility that another member conducted business with the City
as well.

The other evidence supplied by Appellees talked about the business
another commissioner may have with the City, and the opinion of a
local reporter that it is a good idea the City Charter anti-corruption
provisions to be enforced.

Appellees did not provide any evidence that the City Charter was
unconstitutional or that they had not violated the City Charter, and
therefore were improperly removed. Appellees did not provide any
evidence to establish their probable right to recovery, and therefore
did not meet the legal requirements to obtain a temporary injunction.

ARGUMENT AND AUTHORITIES

I. Supporting Law

To obtain a temporary injunction, the applicant must 1) plead a cause of

action against the defendant that shows a probable right to recover on that cause of

action; and 2) show a probable, imminent, and irreparable injury in the interim.

3
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); EMS USA, Inc. v.

Shary, 309 S.W.3d 653, 657 (Tex. App. Houston 14th Dist. 2010). The applicant

must then present evidence that establishes the cause of action and supports the

pleadings. Id.; IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 197

(Tex. App.--Fort Worth 2005, no pet.); Wheel Factory v. Sma Props., L.P., 2002

Tex. App. LEXIS 4318 (Tex. App. Dallas June 18, 2002).

II. The Temporary Injunction was granted in violation of Texas law,

because Appellees did not present evidence to support their

pleadings of a probable right to recovery.

Appellees’ cause of action is based on the enforcement of a provision of the

Port Isabel City Charter by a vote of the Port Isabel City Commission, which is an

integral part of the City government. The City Charter provides:

The Mayor, Commissioners, and other officers and employees…
and shall not be interested in the profits or emoluments or any
contract, job, work or service for the City of Port Isabel, or
interested in the sale or lease to or by the City of any property,
real or personal… Any officer or employee of the City who shall
cease to possess any of the qualifications herein required shall
forthwith forfeit his or her office...

Port Isabel City Charter Section 2.02

To meet the requirements for obtaining a temporary injunction, Appellees

had the burden to present evidence at the hearing on the Temporary Injunction that

established the elements of their cause of action and proved a probable right to

4
recovery. Butnaru, 84 S.W.3d at 204. However, Appellees did not present evidence

showing any probable right of recovery and, therefore, failed to meet their burden.

As a result, the Temporary Injunction Order should be vacated and reversed.

The only testimony Appellees presented at the hearing was from three

witnesses: Appellee Cantu, Appellee Zamora, and a witness named Manuel de la

Rosa. None of those witnesses presented evidence to support the assertion that

Appellees were not in violation of the City Charter and that they were improperly

removed.

A. Appellees Cantu and Zamora testified that they conducted business

with the City and, therefore, supported the Commission’s finding that they were in

violation of the City Charter, Section 2.02:

 Cantu admitted that both he and Appellant Zamora conducted

business with the City of Port Isabel while they were commissioners.

RR:1 p. 94, ln 1-3, p.86, ln. 16-25.

 Zamora confirmed Cantu’s testimony that Zamora conducted business

with the City. RR:1, p. 107, ln. 11-17, p. 91, 14-17.

 Cantu and Zamora described the nature of their business dealings and

the involvement with the City that resulted in them making money

from business transactions with the City while claiming a position as

City Commissioner. RR:1 p.86, ln. 8-22, p. 107, ln. 11-22.
5
 B. Appellees Cantu and Zamora presented evidence that supported the

validity of the hearing and voting procedure, including their own use of the voting

procedure at the same hearing.

Appellees attempted unsuccessfully to have a different City Commissioner

removed from office on the exact same alleged grounds, using the same voting

procedure, at the same hearing. RR:1, p. 112, ln. 4-10. After their effort failed, the

Commission proceeded to entertain and pass a Motion by majority vote to enforce

the City Charter mandate and remove Appellees from office for their admitted

business transactions with and profits from doing business with the City:

 Cantu admitted that Appellees had proper notice of the public meeting

at issue. RR:1 p. 8, ln. 11-16.

 Cantu admitted he and Zamora both had an opportunity to be heard

and defend the allegations that they had done business with the City at

the meeting, as they both attended the meeting. RR:1 p. 79, p.2-7.

 Cantu admitted that the week’s regularly scheduled Tuesday meeting

was simply moved to Monday for convenience. RR:1 p.78, ln. 20-24.

 Zamora confirmed that no one raised any issues about the City

Commission’s ability to vote on and decide the issue of their

disqualification to hold office and resulting removal, or to decide that

issue at that duly-noticed public meeting. RR:1 p. 112, ln. 4-10.
6
  Cantu and Zamora admitted that they placed another Commissioner’s

possible disqualification and removal due to alleged business dealings

with the City on the agenda for the same meeting, that they pursued

that item, that it was considered, voted on, and rejected by the City

Commission at the very same meeting. RR:1 P.85, ln. 1-5, RR:1

p.105, ln. 10-16.

C. All the other evidence presented by Appellees was not relevant to

their probable right to recovery addressing instead the irrelevant possibility that

another member conducted business with the city as well:

 Cantu and Zamora testified that Appellant Torres also did business

with the City. RR:1, p. 94, ln. 1-3. However, that testimony is not

relevant to their probable right to recovery and whether or not

Appellee Cantu and Appellee Zamora violated the City Charter and

were properly removed. In his testimony, Cantu confirmed that he set

a Commission evaluation of that business on the agenda for the same

meeting, during which the Commission voted on Cantu’s business

involvement. RR:1 P.85, ln. 1-5. The commission evaluated whether

or not Appellant Torres was in violation of the Charter, voted and

determined that he should not be removed. RR:1 p. 111, ln.25-p.112,

ln. 2.
7
  The other witness presented by Appellees, Mr. de la Rosa, testified

that he was told Commissioners could do business with the City under

certain conditions and confirmed that he thought enforcing the law

prohibiting Commissioners from conducting business with the City

was a good idea. RR:1, p. 115, ln. 1-13, p. 117, ln. 6-19. Mr. de la

Rosa’s understanding of the law and opinions about how the law

should be applied is not relevant to Appellees’ right to recovery, and

serves as no evidence to support any Temporary Injunction.

The only other evidence provided by Appellees presented no additional

testimony in support of their pleadings and to establish their probable right to

recovery. RR:1 p. 121, ln. 1-2.

CONCLUSION AND PRAYER

Appellee’s filed suit claiming that their removal from the City Commission

for violations of the City Charter was improper, and they sought and obtained,

without evidence, a Temporary Injunction Order. However, Appellees failed to

meet their burden to support that pleading with sufficient evidence to prove a

violation of law and probable right to recovery. Without this essential element, the

temporary injunction was issued in violation of Texas law. Butnaru, 84 S.W.3d at

204.

8
 Therefore Appellant City of Port Isabel prays this court will reverse the

order granting Appellee’s Motion for Temporary Injunction.

Respectfully submitted,

___________________
Robert L. Collins
Texas Bar No. 04618100
Audrey Guthrie
Texas Bar No. 24083116
P.O. Box 7726
Houston, Texas 77270-7726
(713) 467-8884
(713) 467-8883 Facsimile
houstonlaw2@aol.com
ATTORNEYS FOR CITY OF
PORT ISABEL

9
 CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that I have served this document on all other parties, on this 26th day of
June, 2015 and July 3, 2015:

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

Michael R. Cowen
THE COWEN LAW GROUP
62 E. Price Road
Brownsville, TX 78521
(956) 504-3674 Facsimile
michael@cowenlaw.com

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

Robert L. Collins

10
 CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
1,859 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

____________________________
Robert L. Collins

11
 NO. 13-15-00237-CV

IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
AT CORPUS CHRISTI - EDINBURG

CITY OF PORT ISABEL, TEXAS, MARIA DE JESUS GARZA,
GUILLERMO TORRES AND JOE E. VEGA
Appellants,

VS.

JUAN JOSE “JJ” ZAMORA, SR., AND MARTIN C. CANTU
Appellees.

From Cause Number 2015-DCL-02342
th
In the 444 Judicial District Court of Cameron County, Texas

APPENDIX

Tab A Temporary Injunction Order, signed May 12, 2015
TAB A