United States Court of Appeals

for the Fifth Circuit ____________

No. 22-40551

____________

Thomas E. Rhone, Individually, doing business as Rhone 

Investments, 

Plaintiff—Appellant, 

versus

City of Texas City, Texas, 

Defendant—Appellee. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 3:21-CV-74

______________________________

Before Smith, Southwick, and Higginson, Circuit Judges.

Leslie H. Southwick, Circuit Judge: 

On February 14, 2024, we entered a limited remand ordering the 

district court to “conduct an evidentiary hearing on the City Attorney’s role 

in finalizing the Municipal Court’s order of abatement” and the effect of his 

role on the validity of that order. Rhone v. City of Texas City, 93 F.4th 762, 

773 (5th Cir. 2024). The district court conducted the hearing. Now before 

us are the district court’s findings from its evidentiary hearing and the 

parties’ briefings regarding the effect of the district court’s order on this 

appeal. 

United States Court of Appeals

Fifth Circuit

FILED

August 6, 2024

Lyle W. Cayce

Clerk

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No. 22-40551

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On remand, the district court ordered the parties to submit briefings 

prior to the hearing. Texas City’s brief argued that “[t]he misunderstanding 

here is two-fold” because “the City Attorney, Kyle Dickson, did not 

represent the City in the municipal court proceedings,” and “the City 

Attorney’s approval of the [Municipal] [J]udge’s order was a waiver of its 

right to appeal the order, not permission to execute it.” In response, Rhone 

argued that our February 14, 2024, opinion required the district court to

make a searching inquiry beyond just the single order in question as to 

whether the Municipal Judge actually has judicial independence.

The evidentiary hearing conducted by the district court sought to 

discover the effect of the City Attorney’s submission of the proposed order

of abatement on the Municipal Judge’s independence. The district court 

found that Texas City had appointed the Municipal Judge for a two-year term 

under statutory authority and re-appointed him several times. See Tex. 

Gov’t Code § 30.00006(b). The City also has a contract with the 

Municipal Judge’s law firm that sets out the compensation he is to be paid.

See § 30.00006(h).

The court further found that the City Attorney had very little 

participation in the actual Municipal Court abatement hearing. The 

February 24, 2021, transcript established that prosecutor Robert Barfield 

tried the case for Texas City. The City Attorney was present, though, and is 

shown on the hearing transcript as appearing on behalf of Texas City along 

with Barfield. His only role was to explain the procedural history of the case.

At the end of the abatement hearing, the Municipal Judge agreed to 

enter an order of abatement and requested that an order be drafted and 

submitted for him to sign. The City Attorney offered to draft the order and 

submit it to the court by the next morning. At the end of the order prepared 

by the City Attorney, after a blank for the Municipal Judge’s signature, was 

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3

the phrase “approved as to form, substance, and entry,” and below that, the 

typed signature of the City Attorney. There was no place for Rhone’s 

attorney to indicate approval of anything. The Municipal Judge signed the 

order.

In its brief to the district court prior to the hearing, Texas City’s 

counsel explained that the language in the proposed order stating it was 

“approved as to form, substance, and entry” is “boilerplate language” 

recognized by Texas courts as relevant to whether a party has retained its 

right to appeal certain orders. In one cited case, the language in an order 

stating it was “agreed to as to form, substance and entry” was held to 

establish the party’s waiver of its right to appeal. DeLee v. Allied Fin. Co. of 

Dall., 408 S.W.2d 245, 247 (Tex. App.—Dallas 1966, no writ) (capitalization 

omitted). The district court found that Rhone had not objected to the 

inclusion of this language within the proposed order nor had he “contested 

. . . the City’s position on the language’s legal effect.”

After conducting the evidentiary hearing and making its factual 

findings, the district court concluded the Municipal Judge’s and City 

Attorney’s actions were proper. The court explained that “many Texas 

courts have construed language re[garding] approval as to form, substance, 

and/or entry as being relevant to whether a party has retained its right to 

appeal.” One opinion concluded that the phrase on a final judgment that it 

was “agreed to as to form, substance and entry,” followed by counsel’s 

signature, meant that party “consented to the action of the court in entering 

judgment.” DeLee, 408 S.W.2d at 247 (capitalization of first quote omitted). 

In another opinion, the court held that approval only as to form leaves the 

right to appeal in place, while approval as to “form and substance standing 

alone does not transform a judgment into a consent judgment.” Baw v. Baw, 

949 S.W.2d 764, 766–67 (Tex. App.—Dallas 1997, no writ) (quotation marks 

and citation omitted).

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To be clear, the details of how that language affects appellate rights of 

a party are not the issue here. The question for which we sought the district 

court’s answer was whether the language reflected that the Municipal Judge

needed the City Attorney’s approval before entering the order. The district 

court answered by finding that the language “was in no way a grant of 

permission” for entry of the order. Further, the court determined that a 

municipal judge in Texas City does not submit proposed orders to the City 

Attorney for approval before entry. Based on these findings, the district 

court concluded that “the City Attorney’s role in finalizing the Municipal 

Court’s order of abatement in the City’s case against Rhone did not 

invalidate the order of abatement.”

With the appeal back in this court, Rhone’s letter brief does not 

address the “[i]nquiry into the actions of the City Attorney in finalizing the 

judgment of the Municipal Court” because he asserts it “is not controlling.” 

He instead contends the district court “used the wrong analysis” to conclude 

the Municipal Judge acted independently when he issued the order of 

abatement. Rhone argues the proper scope of the limited remand was the 

inception, structure, and system of Texas Municipal Courts in general.

With respect for Rhone and his counsel, these arguments are 

irrelevant to the directions we gave for the limited remand. The district court 

was to determine the effect of the City Attorney’s signature showing 

approval of the substance of the order. Rhone, 93 F.4th at 773. It was not to 

reexamine arguments that Texas’s system of municipal courts is improper.

We conclude that the language within the order of abatement was a 

formulaic way of explaining counsel’s acceptance of an order. The City 

Attorney’s and Municipal Judge’s actions were therefore appropriate under 

Texas law, and Rhone failed to present arguments to the contrary.

AFFIRMED.

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