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SGR/14718082.4

Case No. 03-16-00586-CV

Case No. 03-16-00565-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

CITY OF AUSTIN, TEXAS, and MARC A. OTT,

in his official capacity as City Manager of the CITY

OF AUSTIN, TEXAS

Appellants and Cross-Appellees

vs.

UTILITY ASSOCIATES, INC., and MR. V. BRUCE

EVANS, a Resident of Austin, Texas

Appellees and Cross-Appellants

UTILITY ASSOCIATES, INC. & MR. V. BRUCE EVANS’ REPLY BRIEF

Oral Argument Requested Pursuant to Tex. R. App. P. 9.4(g)

Smith, Gambrell & Russell LLP Jordan, Hyden, Womble, Culbreth &

100 Congress Avenue, Suite 2000 Holzer, P.C. 

Austin, TX 78701 Cielo Center Bldg. 1 - Suite #330,

Tel: (512) 498-7617 1250 S. Capital of Texas Hwy, 

Fax: (512) 879-5032 Austin, TX 78746

Email: pbarlow@sgrlaw.com Tel: (361) 884-5678

Email: pcrofton@sgrlaw.com Fax: (361) 888-5555

Email: bdeninger@sgrlaw.com Email: sjordan@jhwclaw.com

pholzer@jhwclaw.com

aortiz@jhwclaw.com

Attorneys for Cross-Appellant Attorneys for Cross-Appellant

Utility Associates, Inc. Mr. V. Bruce Evans

ACCEPTED

03-16-00565-CV

13903401

THIRD COURT OF APPEALS

AUSTIN, TEXAS

11/21/2016 1:23:04 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/21/2016 1:23:04 PM JEFFREY D. KYLE Clerk
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TABLE OF CONTENTS

SUMMARY OF ARGUMENTS 5

ARGUMENT 7

I. The Defendants Misconstrue the Facts and the Law Concerning

Plaintiffs' LGC Claims 7

A. THE UDJA Affords Remedies Not Available Under the LGC 7

B. Plaintiffs' Action Is Primarily Declaratory In Nature 9

C. The Defendants’ Misconduct Does Not Change The 

Declaratory Nature of the Action 10

D. The Defendants Seek to Rewrite Texas Statutory and 

Decisional Law 13

II. Defendants Misconstrue the Facts and Law Concerning Plaintiffs’ 

Ultra Vires Claims 15

A. The Evidence Shows the Defendants’ Ultra Vires Conduct 16

B. The Defendants Now Dispute the Underlying Facts 17

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

Corruption 21

A. The Defendants Seek to Avoid Public and Judicial Review 

of Their Current and Future Illegal and Corrupt Acts 22

B. The Legislature Allows Corruption Fighters to Recover 

Attorneys’ Fees 24

C. Plaintiffs Have Saved Austin’s Taxpayers Significantly More 

than the Fees in this Matter 24

IV. Conclusion 26

V. Prayer For Relief 27
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TABLE OF AUTHORITIES

Cases

Camarena v. Tex. Employment Com’n,

754 S.W.2d 149 (Tex. 1988)................................................................................13

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009)................................................................................16

City of New Braunfels v. Carowest Land, Ltd.,

432 S.W.3d 501 (Tex. App. Austin 2014)...........................................................15

City of Round Rock v. Whiteaker,

241 S.W.3d 609 (Tex. App. Austin 2007)...........................................................19

Crosstex Energy Servs., L.P. v. Pro Plus, Inc.,

430 S.W.3d 384 (Tex. 2014)................................................................................22

Gattis v. Duty,

349 S.W.3d 193 (Tex. App. Austin 2011)...........................................................26

Guadalupe-Blanco River Auth. v. Tex. A.G.,

2015 WL 868871 (Tex. App. Austin Feb. 26, 2015).............................................8

Helena Chem. Co. v. Wilkins, 

47 S.W.3d 486 (Tex. 2001)..............................................................20

Houston Belt & Terminal R.R. Co. v. City of Houston, 

478 S.W.3d 154, 163 (Tex. 2016)........................................................................21

In re City of Corpus Christi,

2012 WL 3755604 (Tex. App. Corpus Christi Aug. 29, 2012)...........................12

In re Continental Airlines, Inc.,

988 S.W.2d 733 (Tex. 1988)..............................................................................7, 9

In re State,

159 S.W.3d 203 (Tex. App. Austin 2005).............................................................7

Kassen v. Hatley,

887 S.W.2d 4 (Tex. 1994)....................................................................................19

Labrado v. County of El Paso,

132 S.W.3d 581 (Tex. App. El Paso 2004)....................................................13, 19

Lee v. Mitchell,

23 S.W.3d 209 (Tex. App. Dallas 2000) .............................................................22

MBP Corp. v. Bd. of Trustees of Galveston Wharves,

297 S.W.3d 483 (Tex. App. Houston 2009)........................................................18

Park v. Escalera Ranch Owners’ Ass’n., Inc., 

457 S.W.3d 571 (Tex. App. Austin 2015).............................................20

Patel v. Tex. Dept. of Licensing and Regulation,

469 S.W.3d 69 (Tex. 2015)..................................................................................11
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Securtec, Inc. v. County of Gregg,

106 S.W.3d 803 ...................................................................................................19

Securtec, Inc. v. County of Gregg,

106 S.W.3d 803 (Tex. App. Texarkana 2003).....................................................13

Souder v. Cannon,

235 S.W.3d 841 (Tex. App. Fort Worth 2007)....................................................19

State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez,

82 S.W.3d 322 (Tex. 2002)..................................................................................27

Steffel v. Thompson,

415 U.S. 452 (1974)...........................................................................................7, 8

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440 (Tex. 1993)................................................................................17

Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217 (Tex. 2004)................................................................................18

Tex. Educ. Agency v. Leeper,

893 S.W.2d 432 (Tex. 1994)................................................................................26

Walter E. Heller & Co. v. Barnes,

412 S.W.2d 747 (Tex. Civ. App. El Paso 1967)..................................................12

Ward v. Lamar Univ.,

484 S.W.3d 440 (Tex. App. Houston 2016)........................................................14

Statutes

Tex. Civ. Prac. & Rem. Code § 37.002...............................................................6, 24

Tex. Civ. Prac. & Rem. Code § 37.009...................................................................22

Tex. Gov’t Code § 1205.001 et seq...........................................................................8

Tex. Gov’t Code § 1205.061.....................................................................................8

Tex. Gov’t Code § 1205.151.....................................................................................8

Tex. Gov’t Code § 311.016.....................................................................................19

Tex. Gov’t Code § 552.323.....................................................................................22

Tex. Hum. Res. Code § 36.110 ...............................................................................22

Tex. Loc. Gov’t Code § 252.061......................................................................passim

Tex. Loc. Gov't Code § 252.043(h).........................................................................18

Other Authorities

Uniform Declaratory Judgments Act, Prefatory Note (Unif. Law Com’n 1922) .6, 7
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SUMMARY OF ARGUMENTS

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

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

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

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

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

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

combined with the Defendants’ intentional misconduct in signing the Contract 

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

from declaratory to injunctive.

The Defendants likewise misconstrue the facts and the law concerning 

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

Defendants dispute the material jurisdictional facts, thereby showing the PTJ 

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

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

the requirements of the competitive bid law. 

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

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

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

law in a way that would thwart the Legislature’s intent to encourage citizens and 
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taxpayers to fight corruption by allowing corruption fighters to recover their costs 

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

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

of total taxpayer funds that will be saved.

Because this matter involves multiple statutory provisions and has already 

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

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

Court hear oral argument on this appeal.
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ARGUMENT

I. The Defendants Misconstrue the Facts and the Law Concerning 

Plaintiffs’ LGC Claims

A. The UDJA Affords Remedies Not Available Under the LGC

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

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

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

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

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

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

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

he has no standing in court”).

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

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

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

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

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

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

declaratory judgment is simply a statement of rights, not a binding order 
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supplemented by continuing sanctions.”)1 That enforcement remedy comes in the 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

judgment act adopted by the Legislature – the Public Security Declaratory 

 1 Texas looks to cases interpreting the Federal Declaratory Judgment Act as authority for 

interpreting the UDJA. See In re State, 159 S.W.3d 203, 207 (Tex. App. Austin 2005)

(explaining that Texas courts “look to federal case law because section 37.002(c) of the 

declaratory judgment act compels us to construe the statute in harmony with federal law 

concerning declaratory judgments.”).

2 Defendants cite no authority for their contention that LGC § 252.061 authorizes a court to grant 

declaratory relief. (Cross-Appellees’ Brief, p. 7).
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Judgments Act.3 See Tex. Gov’t Code §§ 1205.001 - .152. Unlike the UDJA, the 

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

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

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

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

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

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

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

§ 252.061.

B. Plaintiffs’ Action Is Primarily Declaratory In Nature

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

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

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

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

declarations by the Court: 

1. That the Defendants “engaged in an improper procurement unauthorized 

by law;”

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

is void;

 3 The Public Security Declaratory Judgments Act is referred to herein as the Expedited 

Declaratory Judgment Act (“EDJA”) as it is by Texas Courts. See generally Guadalupe-Blanco 

River Auth. v. Tex. A.G., 2015 WL 868871 (Tex. App. Austin Feb. 26, 2015).
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3. That the Contract be awarded to Utility as the highest scoring responsive 

bidder.

1 C.R. 189, ¶ 104.

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

the following injunctive relief:

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

procurement;

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

3. Enjoin the Defendants from cancelling the RFP;

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

1 C.R. 189, ¶ 87.

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

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

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

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

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

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

.]”).

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

the Action

Plaintiff Utility’s original Petition was primarily a declaratory judgment 

action because it sought: 1) a declaration that the Defendants had illegally awarded 
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the Contract to the non-responsible bidder Taser; and 2) ancillary injunctive relief 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

declaratory relief sought. 1 C.R. 17. 

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

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

 4 The relevant facts, including the testimony of the City’s Purchasing Officer concerning the 

interruption of his vacation so that he could authorize the execution of the Contract, is explained 

on pages 29-31 of Cross-Appellees’ Brief in the companion appeal to this one.
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faith attempted to thwart the Trial Court’s ability to review the Defendants’ illegal 

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

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

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

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

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

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

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

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

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

character of this action from predominately declaratory nor deprives the Plaintiffs 

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

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

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

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

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

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

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

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

Walter E. Heller & Co. v. Barnes, 412 S.W.2d 747, 753 (Tex. Civ. App. El Paso 
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1967) (Citing the “well-known maxim that ‘He who comes into equity must come 

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

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

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

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

doing the wrong.”

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

Texas law concerning bid protests favors government entities, and most 

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

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

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

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

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

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

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

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

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

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

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

attorney’s fees); Securtec, Inc. v. County of Gregg, 106 S.W.3d 803, 813 (Tex. 
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App. Texarkana 2003) (plaintiff’s bid protest claim for declaratory judgment and 

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

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

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

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

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

sought attorney’s fees under the UDJA).

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

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

relief under the UDJA is the same as that available under LGC § 252.061. (CrossAppellees’ Brief, pg. 11-15).5

 However, while extending this invitation, the 

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

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

The Defendants newly constructed argument on the scope of LGC chapter 

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

1. Since the adoption of the first competitive bidding statutes for 

cities and counties in 1917, no reported decision has determined 

that the competitive procurement law itself gives a right to 

declaratory relief;

 5 In furtherance of this argument, the Defendants argue in their companion appeal that LGC § 

252.061 pre-empts all other remedies that might otherwise apply to a claim of illegal or corrupt 

contracting by a city. (Cross-Appellees’ Brief, pg. 6-11).
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2. Since the adoption of the UDJA in 1947, no reported decision has 

held that relief under the UDJA is duplicative of the relief 

available under the competitive procurement laws; 

3. Since the adoption of the current competitive bid law in 1987 

(LGC chapters 252 (cities) and 262 (counties)), no reported 

decision has dismissed a taxpayer’s or unsuccessful bidder’s 

claims for declaratory relief under the UDJA on the basis that the 

LGC preempts those claims or that UDJA claims are redundant of 

those under the LGC;

4. Since the adoption of the current competitive bid law in 1987 

(LGC chapters 252 (cities) and 262 (counties)), no reported 

decision has determined that statutes criminalizing bribery and 

other forms of corruption in public contracting are preempted by 

the LGC’s criminal remedial provisions;

5. As recently as 2014, this Court determined that a UDJA claim can 

be asserted for violations of LGC Chapter 252. See City of New 

Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 533 (Tex. App. 

Austin 2014) (explaining that plaintiff’s claim for declaratory relief 

against city fell “squarely within chapter 252’s waiver of sovereign 

immunity [as] it seeks a declaration that the city violated chapter 

252 in regard to [a] contract, thereby rendering that contract void 

and unenforceable.”).

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

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

UDJA claims and remand for a trial on the merits.

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

Vires Claims

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

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

Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009). Importantly, an ultra vires claim is 
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limited to injunctive relief, or declaratory relief under the UDJA, because money

damages are not available. Id. at 376.

A. The Evidence Shows the Defendants’ Ultra Vires Conduct

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

conduct by the Defendants, including:

1. The Defendants failed to disqualify as non-responsive the Taser offer, as 

required by LGC § 252.043(h),6 even though that offer did not satisfy the 

Mandatory Technical Requirements of the RFP (3 R.R. 311-316);

2. The Defendants failed to disqualify as non-responsive the Taser offer, as 

required by LGC § 252.043(h), even though that offer did not contain 

complete pricing as required by the RFP (3 R.R. 338-344);

3. The Defendants failed to award the Contract, as required by LGC. § 

252.043(h), to the Offeror that submitted the responsive offer that 

provided the City with the best value.

B. The Defendants Now Dispute the Underlying Facts

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

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

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

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

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

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

 6 Pursuant to LGC § 252.043(h), if a municipality applies the competitive sealed proposals 

requirement to a contract, it “must be awarded to the responsible offeror whose proposal is 

determined to be the most advantageous to the municipality considering the relative importance 

of price and the other evaluation factors” in the RFP.
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only offered self-serving statements and self-created documents that were given no 

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

The Defendants’ arguments demonstrate the existence of disputed 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Tex. 1994) [emphasis added] (“The purpose of official immunity is to insulate the 
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functioning of government from the harassment of litigation, not to protect erring 

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

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

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

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

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

LGC chapter 252 requires cities to follow proscribed procedures when 

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

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

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

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

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

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

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

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

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

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

considering the relative importance of price and the other evaluation factors 

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

Purchasing Officer, Mr. Scarboro, testified:
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Offers that do “not meet the mandatory requirements 

would not be – would not be compliant with the 

solicitation specifications, therefore nonresponsive.” 2 

R.R. 178.

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

best value is mandatory, not discretionary.7

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

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

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

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

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

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

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

higher despite these recognized defects in Taser’s Offer.

8 1 C.R. 329-330.

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

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

completed:

 7 The governing body of a city has the right to reject any or all “bids.” LGC chapter 252 

distinguishes between “proposals” which are submitted in response to an RFP, and “bids” which 

are submitted in response to request for sealed bids. For purposes of this appeal, this distinction 

is not relevant because the Austin City Council decide to award the Contract without purporting 

to reject any of the Offers, including Utility’s Offer.

8 The Defendants manipulated the ranking process by making after-the-fact reductions to 

Utility’s score, to ensure that Taser’s Offer was ranked higher than Utility’s. However, the 

Defendants’ improper manipulation of the ranking process is not relevant because Taser’s offer 

is non-responsive, and the highest ranked responsive Offeror is Utility. 
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(* in the chart above denotes Offers that are non-responsive). See 1 C.R. 330

(excerpt).

9

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

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

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

interfere with Defendants’ exercise of discretion in ranking the Offers. (Cross-

 9 The above matrix also notes that Austin Ribbon – another Offeror – was disqualified and

ineligible for award.

10 Texas courts look to the Texas Code Construction Act when construing statutory language. 

Lee v. Mitchell, 23 S.W.3d 209, 212 (Tex. App. Dallas 2000). Pursuant to the Code Construction 

Act, “May” creates discretionary authority or grants permission or a power whereas “Must” 

creates or recognizes a condition precedent. See Tex. Gov’t Code § 311.016. Both this Court and 

the Texas Supreme Court have stated “that “must” generally has a mandatory effect, creating a 

duty or obligation.” Park v. Escalera Ranch Owners’ Ass’n., Inc., 457 S.W.3d 571, 588 (Tex. 

App. Austin 2015) citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).
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Appellees’ Brief pg. 16-20). Accordingly, Plaintiffs do not seek declaratory relief 

concerning discretionary acts by the Defendants or relief that is otherwise 

unavailable under the UDJA.

11

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

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

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

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

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

 11 Houston Belt & Terminal R.R. Co. v. City of Houston, 478 S.W.3d 154, 163 (Tex. 2016) 

(“[G]overnmental immunity bars suits complaining of an exercise of absolute discretion but not 

suits complaining of either an officer’s failure to perform a ministerial act or an officer’s exercise 

of judgment or limited discretion without reference to or in conflict with the constraints of the 

law authorizing the official to act”).
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The Trial Court erred in granting the PTJ against Plaintiffs’ claims under the 

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

UDJA claims and remand for a trial on the merits.

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

Corruption

Recently, public corruption in Texas has garnered significant and 

widespread unflattering media coverage.12 This corruption squanders taxpayer 

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

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

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

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

conduct.

A. The Defendants Seek to Avoid Public and Judicial Review of Their Current 

and Future Illegal and Corrupt Acts

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

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

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

 12 Katie Hall, Crystal City Mayor, City Manager Arrested in Public Corruption Raids, Austin 

American Statesman, February 4, 2016 at http://www.statesman.com/news/crime--law/crystalcity-mayor-city-manager-arrested-public-corruption-raids/KoJUcy17ClDXQFeP1ZwOJK/ (last 

visited November 14, 2016); see also Corruption in a Small Texas Town, FBI News, 

https://www.fbi.gov/news/stories/corruption-in-a-small-texas-town (last visited October 3, 

2016).

13 Matt Zapotosky, This Might be the Most Corrupt Little Town in America, Washington Post, 

March 5, 2016 at https://www.washingtonpost.com/world/national-security/this-might-be-themost-corrupt-little-town-in-america/2016/03/05/341c21d2-dcac-11e5-81ae7491b9b9e7df_story.html (last visited November 14, 2016).
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Trial Court had jurisdiction, in the hope that the Trial Court would dismiss the 

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

procurement process.

The Defendants’ extraordinary efforts to avoid judicial review of their 

conduct include:

1. The midnight signing of the Contract in hopes of avoiding a TRO and 

mooting Utility’s claims;

2. Arguing LGC chapter 252 did not apply to the RFP because this was an 

exempt public safety procurement, only to abandon that argument after 

Plaintiffs obtained a copy of the City’s Procurement Manual which 

established the Defendants did not follow any of the processes required 

to have a procurement exempted from LGC Chapter 252 (2 Supp. C.R. 

26-186 and 2 Supp. R.R. 28-34); and

3. Arguing that LGC § 252.061 was inapplicable to this matter, only to 

abandon that argument and argue on appeal that LGC § 252.061 is 

applicable and limits Plaintiffs available remedies so that the Defendants 

can cancel the RFP and moot this action.

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

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

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

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

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

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

taxpayers’ means of holding their government accountable will be significantly 

reduced, and there will be fewer checks on corrupt public officials.
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B. The Legislature Allows Corruption Fighters to Recover Attorneys’ Fees

The Legislature recognizes that public citizens and taxpayers who seek 

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

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

to recover their fees and expenses. Examples include:

i. Whistleblower claims – Tex. Educ. Agency v. Leeper, 893 S.W.2d 

432 (Tex. 1994) (explaining that Texas’ “Whistleblower Act 

expressly provides for waiver of immunity and for recovery of 

attorneys’ fees”);

ii. Open Meeting Act claims – Gattis v. Duty, 349 S.W.3d 193, 202 

(Tex. App. Austin 2011) (discussing that whether a party is entitled 

to recover attorney’s fees under the Open Meetings Act “turns on 

whether there has been a material alteration in the legal 

relationship between the parties”); 

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

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

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

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

in this Matter

The wisdom of encouraging taxpayers and unsuccessful bidders to pursue 

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

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

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

 14 See description of cuts to the City of Austin’s 2016-2017 Budget, available on the Austin City 

Council website at: http://www.austintexas.gov/edims/document.cfm?id=263149 (last visited on 

November 11, 2016).
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Plaintiffs prevail on the merits, the taxpayers of the City of Austin may save well 

over $5 million dollars.15 

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

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

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

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

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

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

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

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

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

appropriate circumstances to reverse, illegal and wasteful spending by city 

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

252.061. 

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

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

 15 On June 23, 2016, the City Council approved an approximate total cost of $17.2M for bodycameras/services (comprised of approximately $12.2M for body-cameras from Taser pursuant to 

the Contract and approximately $5M for another contract under a separate procurement for 

iPhones from AT&T which are required to supplement the body-cameras provided by Taser in 

order to satisfy all the Mandatory Technical Requirements of the RFP). 1 C.R. 139-140. 

However, Utility’s offer – which satisfied ALL of the requirements in the RFP and did not 

require any additional contracts – was less than the Taser Offer itself, let alone the Taser Offer 

and the iPhone contract. Thus, if the Contract is awarded to Utility the City will save well over 

$5M. 2 R.R. 89-93.
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protecting the public good. Importantly, the UDJA does not provide a plaintiff 

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

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

or the defendant. See UDJA § 37.009.

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

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

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

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

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

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

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

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

IV. Conclusion

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

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

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

nature of Plaintiffs’ claims.

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

relative to the City Manager’s ultra vires conduct. The Defendants failed to follow 
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the procedures mandated by LGC chapter 252, and the Defendants do not have the 

discretion to violate those legal requirements. 

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

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

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

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

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

UDJA claims with prejudice. 

V. Prayer For Relief

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

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

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

the UDJA, and remand this case for further proceedings.

Respectfully submitted this 21st day of November, 2016,

Smith, Gambrell & Russell LLP

100 Congress Ave., Suite 2000

Austin, TX 78701

Tel: (512) 498-7617

Fax: (512) 879-5032

Email:pbarlow@sgrlaw.com

pcrofton@sgrlaw.com

bdeninger@sgrlaw.com

By: /s/ Peter B. Barlow

Peter B. Barlow, Esq.

TX Bar No.: 24098860
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Peter M. Crofton, Esq.

GA Bar No.: 197122

Admitted Pro Hac Vice

Benjamin P. Deninger, Esq.

GA Bar No.: 549925

Pro Hac Vice Application Pending

Attorneys for Cross-Appellant Utility Associates, Inc. 

Jordan, Hyden, Womble, Culbreth & Holzer, P.C. 

Cielo Center Bldg. 1 - Suite #330,

1250 S. Capital of Texas Hwy

Austin, Texas 78746

Tel: (361) 884-5678

Fax: (361) 888-5555

Email:sjordan@jhwclaw.com

pholzer@jhwclaw.com

aortiz@jhwclaw.com

By: /s/ Shelby A. Jordan

Shelby A. Jordan 

St. Bar No. 11016700 

Antonio Ortiz 

St. Bar No. 24074839

Attorneys for Counter-Appellant Mr. V. Bruce Evans
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CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

This is to certify that this document complies with the applicable word count 

requirements in Tex. R. App. P. 9.4 and contains 6,338 words.

/s/ Shelby A. Jordan

Shelby A. Jordan
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CERTIFICATE OF SERVICE

This is to certify that I served a copy of the foregoing on all parties, or their 

attorneys of record, in compliance with the Texas Rules of Appellate Procedure, 

this 21st day of November, 2016.

VIA Electronic Mail & E-Services to:

Matthew W. Tynan

Matthew.tynan@austintexas.gov

City of Austin-Law Department

Post Office Box 1546

Austin, Texas 78767-1546

Tel: (512) 974-2185

Fax: (512) 974-1311

ATTORNEYS FOR DEFENDANTS

/s/ Shelby A. Jordan

Shelby A. Jordan