No. 03-16-00565-CV

No. 03-16-00586-CV

IN THE THIRD COURT OF APPEALS 

AUSTIN, TEXAS

City of Austin and Marc A. Ott, in his Official Capacity as the City Manager for 

the City of Austin, 

Defendants – Appellants 

v. 

Utility Associates, Inc., and Mr. V. Bruce Evans, a Resident of Austin, Texas, 

Individually,

Plaintiffs - Appellees 

On Appeal from the District Court of Travis County, 98th Judicial District

Cause No. D-1-GN-16-002931

REPLY BRIEF OF APPELLANT

Anne L. Morgan, City Attorney

Meghan L. Riley, Chief, Litigation 

Matthew William Tynan, Assistant City Attorney

State Bar No. 24072489

City of Austin-Law Department

P. O. Box 1546

Austin, Texas 78767-1546

Telephone: (512) 974-2185

Facsimile: (512) 974-1311 

matthew.tynan@austintexas.gov

COUNSEL FOR DEFENDANTS - APPELLANTS

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

03-16-00565-CV

13904579

THIRD COURT OF APPEALS

AUSTIN, TEXAS

11/21/2016 1:52:00 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/21/2016 1:52:00 PM JEFFREY D. KYLE Clerk
ii

TABLE OF CONTENTS

TABLE OF CONTENTS.......................................................................................... ii

INDEX OF AUTHORITIES............................................................................... iii, iv

ARGUMENT.............................................................................................................1

I. Statutory Standing is an Exclusive Jurisdictional Requirement ...........2

II. Utility is Not One of the Statutorily Defined Parties Who Can 

Challenge Municipal Purchases Under Chapter 252 ............................5 

III. Utility Cannot Obtain Statutory Standing Through Another Party to 

This Litigation .......................................................................................7

IV. Appellees Cannot Use the UDJA to Create An Exception to the 

Standing Requirements of §252.061 ...................................................10

CONCLUSION........................................................................................................12

CERTIFICATE OF COMPLIANCE.......................................................................13

CERTIFICATE OF SERVICE ................................................................................14
iii

INDEX OF AUTHORITIES

Cases

Andrade v. NAACP of Austin,

 345 S.W.3d 1 (Tex. 2011). ................................................................................8, 9

Barshop v. Medina Cnty. Underground Water Conservation Dist.,

 925 S.W.2d 618 (Tex. 1996)...................................................................................8

City of El Paso v. Waterblasting Technologies, Inc.,

 491 S.W.3d 890 (Tex. App. – El Paso 2016)....................................................6, 10

City of Dallas v. TCI W. End, Inc,.

 463 S.W.3d 53 (Tex. 2015).....................................................................................9 

City of Round Rock v. Whiteaker. 

 241 S.W.3d 609 (Tex. App. – Austin 2007)...........................................................4

Crown Life Ins. Co. v. Casteel, 

 22 S.W.3d 378 (Tex. 2000) ..................................................................................11

Dallas County v. Cedar Springs Investments, L.L.C.,

 375 S.W.3d 317 (Tex. App. – Dallas 2012). ........................................................10

Estate of Teal, 

 135 S.W.3d 87 (Tex. App.-Corpus Christi 2002).................................................11

Everett v. TK–Taito, L.L.C., 

 178 S.W.3d 844 (Tex. App. – Fort Worth 2005). .................................................2

Firemen's Ins. Co. v. Burch,

 442 S.W.2d 331 (Tex.1968). ...............................................................................11

Hunt v. Bass, 

 664 S.W.2d 323 (Tex.1984)....................................................................................2

In re Griffith, 

 485 S.W.3d 529 (Tex. App. – Houston [14th Dist.] 2015); .................................10
iv

NME Hosps., Inc. v. Rennels, 

 994 S.W.2d 142 (Tex. 1999).................................................................................11

Patel v. Texas Dep't of Licensing and Regulation,

 469 S.W.3d 69 (Tex. 2015).................................................................................8, 9

Phillips v. Beaber, 

 995 S.W.2d 655 (Tex.1999)....................................................................................5

Rush v. Barrios,

 56 S.W.3d 88 (Tex. App. – Houston [14th Dist.] 2001); .....................................10

S. Tex. Water Auth. v. Lomas,

 S.W.3d 304 (Tex. 2007)..........................................................................................4

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

 852 S.W.2d 440 (Tex. 1993). ..........................................................................4, 10

Tex. Dep't of Protective and Regulatory Servs. v. Sherry, 

 46 S.W.3d 857 (Tex.2001). ....................................................................................5

Urban Electric v. Brownwood Independent School Dist., 

 852 S.W.2d 676 (Tex. App. – Eastland 1993). .....................................................5

Williams v. Lara, 

 52 S.W.3d 171 (Tex.2001). ..................................................................................3

Statutes

TEXAS CIVIL PRACTICE AND REMEDIES CODE § 37.001- 37.011...............................1

TEXAS GOVERMENT CODE § 311.002.........................................................................5

TEXAS LOCAL GOVERNMENT CODE § 252.061..................................................passim
1

ARGUMENT

The Appellants have argued that the trial court ruled in error when it 

determined that Plaintiff Utility Associates, Inc. (“Utility”) had jurisdictional 

standing to pursue litigation in this matter. The Appellants’ brief presented 

detailed support that the enforcement provision contained in Chapter 252 of the 

Texas Local Government Code provides the exclusive definition of parties who 

have standing to challenge municipal procurements.1

 Appellees filed their brief 

with the Court arguing; 1) Statutory standing under the controlling statute is not the 

exclusive means to establish this jurisdictional requirement; 2) Utility need not 

satisfy the requirements of statutory standing because they have established

“general standing”; 3) Utility can establish statutory standing as a losing bidder as 

a result of the standing afforded a taxpayer under §252.061, and 4) The Appellees’

ultra vires claims create an exception to exclusive statutory criteria so as to provide 

jurisdictional standing under the Uniform Declaratory Judgment Act (“UDAJ”), 

§37.001 – 37.011 of the Texas Civil Practices and Remedies Code.

2

 

Pursuant to Texas Rule of Appellate Procedure 38.3, Appellants present this 

reply brief to address these arguments levied by the Appellees. As shown below, 

 1 The trial court has determined that Section Chapter 252 of the Loc. Gov’t. Code applies to the 

challenges presented in this matter. The Appellees have conceded this point and this 

determination has not been appealed (RR2: 11, 80, 127, 134 & Supp. RR2 26).

2 Appellees insist that they have argued this position before but only point to a claim of “inherent 

jurisdiction” (1 C.R. 171), references to the inapplicable Texas Government Code (1 C.R. 398), 

and that the Taxpayer has statutory standing (2 R.R. 125-133). 
2

the Appellees arguments regarding standing are without sufficient legal support 

and should be considered inadequate by this Court to overcome the well-defined 

argument and authority presented in the Appellants’ Brief.

3

I. Statutory Standing is an Exclusive Jurisdictional Requirement

On page 16 of the Appellees’ Brief they introduce the notion that Utility is a 

proper party to this litigation because they have established “general standing”. 

They insist that this standard is applicable to the matter at hand because the 

statutory basis provided under Chapter 252 does not represent the exclusive criteria 

to determine who may challenge municipal purchases. The Appellees’ argument 

must fail because it is a well-settled rule that statutory standing serves as the 

exclusive metric for ascertaining on whom the legislature intended to confer 

standing when specific criteria for the jurisdictional prerequisite are included as 

part of the statutory language. 

Standing to sue may be predicated upon either statutory or common law

authority. Everett v. TK–Taito, L.L.C., 178 S.W.3d 844, 850 (Tex. App. – Fort 

Worth 2005). The common law standing rules apply except where standing is 

statutorily conferred. Id. (emphasis added); see also Hunt v. Bass, 664 S.W.2d 

323, 324 (Tex.1984). When standing has been statutorily conferred, the statute 

itself serves as the proper framework for a standing analysis. Everett, 178 S.W.3d 

 3 Appellants only address the standing arguments presented in Appellees’ Brief. Appellees 

present no new argument regarding the impermissible scope of injunctive relief in their reply.
3

at 850; see also Williams v. Lara, 52 S.W.3d 171, 178 (Tex.2001). It is undisputed 

that the framework for challenging municipal purchases arises under the 

enforcement provision of Chapter 252 (§252.061 of the Loc. Gov’t Code). 

However, the Appellees now suggest that the statute does not serve as the 

exclusive means for establishing standing to sue under the Chapter. Specifically, 

they argue that a party with “general standing” may pursue statutory remedies even

if they are not a party specifically identified under the statute in question. 

Appellees’ Brief, pg. 16. To support this notion the Appellees begin by arguing 

that underlying procurement process was unfair because Utility was not awarded 

the contract. Appellees’ Brief, pg. 17. This alleged unfairness, according to the 

Appellees, presents the only reason why Utility was an unsuccessful bidder and 

serves as the basis for their speculative and illusory injury.4 Appellees position is 

that this “injury” gives Utility standing to be a party to this suit as an exception to 

the mandatory nature of the standing requirements under §252.061.

To establish the validity of their exception, Appellees suggest a new 

standard for Texas law, one that would remove any ability for the legislature to 

develop, identify, and limit statutorily conferred standing to parties suing under 

specific statutes. In support of this new standard they offer a description of 

 4 Plaintiff Utility has repeatedly misrepresented the position that they were due to be awarded the 

contract that arose from this procurement despite the evaluations and determination of the City 

Purchasing Department, Police Department, and Austin City Council. The trial court 

disregarded this self-serving conclusion at hearings for the Temporary Injunction and on the 

Defendant’s Plea to the Jurisdiction.
4

“general standing” considered by this Court in City of Round Rock v. Whiteaker. 

241 S.W.3d 609 (Tex. App. – Austin 2007). However, in Whiteaker the Court did 

no more than reference a “general test for standing”, as articulated in the Texas 

Ass’n of Bus. decision and did not develop or define any position that parties can 

maintain “general standing” as an exception to statutorily defined criteria.5

 In 

addition, Appellees offer the Texas Supreme Court’s decision in S. Tex. Water 

Auth. v. Lomas as additional support. S.W.3d 304, 307 (Tex. 2007). Appellants’ 

fail to see how Appellees could conclude that the Lomas decision provides any 

support to their argument that the “general standing” test trumps the statutory 

standing requirements of Chapter 252 as it never references such an exception.

The Appellees’ argument that this “general standing” test can be used as an 

alternative or an exception to statutorily conferred standing is unpersuasive. They 

fail to offer any instance of case law support for this disfavored concept and go no 

further than to suggest that their chosen relief (injunction), as an available remedy 

under the statute, provides recourse to any losing bidder despite statutory language

 5 This case discusses the difference between the general test for standing in Texas and the 

absence of a particular test for organizations. Texas Ass’n of Bus. v. Tex. Air Control Bd., 852 

S.W.2d 440, 446-447 (Tex. 1993). This case did not consider a situation where standing is 

statutorily conferred and has not been adopted to say otherwise. 
5

to the contrary.6

 Appellees’ Brief, pg. 18. This response argument to the 

Appellants’ Brief should not be considered meritorious.

II. Utility is Not One of the Statutorily Defined Parties Who Can Challenge 

Municipal Purchases Under Chapter 252

In statutory standing cases, such as the matter currently before the Court, the 

relevant analysis is a straight construction evaluation of the statute to determine 

upon whom the Texas Legislature intended to confer standing and whether the 

claimant in question falls in that category. See Tex. Dep't of Protective and 

Regulatory Servs. v. Sherry, 46 S.W.3d 857, 859–61 (Tex.2001). This evaluation 

begins with the terms of the Code Construction Act (“CCA”). Tex. Gov't Code § 

311.02. The CCA requires that when construing the meaning of a statute, a 

presumption must exist that a statute was enacted in compliance with both the 

United States and Texas Constitutions, that the entire statute is intended to be 

effective, and that a just and reasonable result is intended. Id. Texas Supreme 

Court has emphasized that the objective when interpreting and applying a statute is 

to determine and give effect to the Legislature's intent. Phillips v. Beaber, 995 

S.W.2d 655, 658 (Tex.1999).

Here, the legislature has drafted the enforcement provision of Chapter 252 to 

read as follows:

 6 Appellees offer Urban Electric v. Brownwood Independent School Dist., 852 S.W.2d 676 (Tex. 

App. – Eastland 1993). This matter involved Chapter 271 of the Loc. Gov’t Code which does 

not include the same statutory restrictions on standing as are included in Chapter 252.
6

“If the contract is made without compliance with this chapter, it is 

void and the performance of the contract, including the payment of 

any money under the contract, may be enjoined by: (1) any property 

tax paying resident of the municipality; or (2) a person who submitted 

a bid for a contract for which the competitive sealed bidding 

requirement applies, regardless of residency, if the contract is for the 

construction of public works.” Tex. Loc. Gov’t Code §252.061.

This provides standing to seek the available remedies under this statute for 

two (2) distinct parties; taxpayers and losing bidders in contracts for the 

construction of public works. Appellees have repeatedly conceded that the 

contract in question does not relate to public works. As a result, the only thing that 

the Court need be concerned with is whether the parties seeking to challenge the 

procurement are “taxpayers” as defined by the statute. The Appellants have not 

challenged Evans status as a taxpayer for the City of Austin and the Appellees 

have offered no argument that Utility is qualified as a taxpayer for the purposes of 

litigation under the statute.

When a losing bidder sues a municipality under Chapter 252 but the 

procurement is not one for the construction of public works and the bidder cannot 

establish themselves as a taxpayer, the bidder lacks standing and the Court does 

not possess jurisdiction over their claims. City of El Paso v. Waterblasting 

Technologies, Inc., 491 S.W.3d 890, 901-903 (Tex. App. – El Paso 2016). When 

this is the case, the appropriate action is to dismiss the losing bidder for lack of 

jurisdiction for want of standing. Id. This is the applicable standard even where 
7

other parties may have established jurisdictional standing in the same action. Id. at 

903 (losing bidder dismissed for lack of standing under §252.061 when a taxpayer 

had established standing to pursue statutory remedies). There simply is no support 

for the conclusion that Utility may avoid dismissal on jurisdictional grounds 

because of the taxpayer’s involvement. 

III. Utility Cannot Obtain Statutory Standing Through Another Party To 

The Litigation

As an alternative to their argument that the statute does not control standing 

in this matter, Appellees pivot to their aggregate standing argument that was 

presented to the trial court. This position insists that Utility may be considered to 

have statutory standing because the taxpayer, V. Bruce Evans (“Evans”) is a 

statutorily permissible party under §252.061. The Appellees ask the Court to 

uphold the trial court’s erroneous determination that one party, specifically

excluded from the statutory language, may nevertheless clear this jurisdictional 

hurdle when another party has satisfied the applicable requirements. Appellees 

suggest that this position is palatable because the Plaintiffs in this matter were 

seeking the same relief and such an aggregation is supported by case law. As 

previously argued by the Appellants in their original brief, this argument must fail 

and the trial court’s decision should be reversed. The case law cited by the 

appellees, and referencing an aggregation of standing, does not involve matters 

where standing is statutorily conferred. Nor do these cases address situations 
8

where the parties are distinctly situated and seeking dissimilar relief. Finally, for 

this Court to adopt the determination of the trial court, and the argument of 

Appellees, would be to render the precise standing language of §252.061 

irrelevant. 

Appellees argue that Utility can satisfy the requirements of statutory 

standing under §252.061 because Evans, 1) has standing under the statute; and 2) 

Utility is seeking the same relief as Evans in the lawsuit. For direct support of this 

conclusion the Appellees offer the decision in Andrade v. NAACP of Austin. 345 

S.W.3d 1 (Tex. 2011); Appellee’s Brief, pg. 18. Appellees provide language from 

the opinion that incorporates the determination that claims of equal protection may 

be pursue by all aggrieved voters when all of the voters are seeking the same relief 

and at least one voter has established standing to pursue the relief in question.7 Id.

at 6. Appellees follow up by providing Patel v. Tx. Dep’t of Licensing & Reg. as an 

affirmation of the Andrade decision by this Court. 464 S.W.3d 369, 377 (Tex. 

App. – Austin 2012). 

Neither of the cases offered by the Appellees should be considered 

persuasive. This is initially because both the Andrade case and the Patel matter 

involved common law constitutional standing – not standing that has been 

 7 Appellees do not cite to the portion of the 2011 Andrade case from which they draw the quoted 

language but it appears that this was pulled from page 6 of the opinion, quoting Barshop v. 

Medina Cnty. Underground Water Conservation Dist. 925 S.W.2d 618, 627 (Tex. 1996).
9

statutorily conferred. Both cases are devoid of any suggestion that one party 

establishing statutory standing could open this jurisdictional door for any party 

with similar claims (but who failed the statutory standing test). In addition, and 

dissimilar from the Court’s consideration in Andrade or Patel, the parties in this 

matter are not identically situation nor do they seek the same relief. While both 

Evans and Utility seek categorical relief that can be described as injunctive and 

declaratory, the scope and implication of their positions are unique. Evans seeks to 

have the contract declared void while Utility seeks to have the court waive 

procedural requirements of the RFP and award the contract to them directly. 

Evans has emphasized that the relief sought by Utility is not the same as the relief 

sought by the taxpayer or reflective of his position in this case. (RR2: 129, Supp. 

RR2: 44). Finally, the Appellees proposed application of aggregate standing 

cannot stand because such a conclusion would render an entire portion of clear 

legislative direction irrelevant. Proper consideration of legislative intent requires 

the reviewer to give meaning to all provisions within the statute when possible, and 

not to render any provisions meaningless. See City of Dallas v. TCI W. End, Inc., 

463 S.W.3d 53, 55–56 (Tex. 2015). Allowing the Appellees to create standing 

through aggregation would eviscerate the legislative purpose and intent of the 

enforcement provision of Chapter 252 and render the standing requirements of 

252.061 useless. The Court simply cannot permit this result and find that, while 
10

Evans has established standing under the statute, Utility has not and is due to be 

dismissed from the litigation.8

IV. Appellees Cannot Use the UDJA to Create an Exception to the Standing 

Requirements of §252.061

Appellees make one final attempt to convince this Court that they have 

found an exception to the rules regarding statutory standing when they suggest that 

their (now dismissed) claims under the UDJA allow them to change the rules of 

standing as applied to this case.9

 Appellees fail to cite a single case that has 

permitted this type of extra-statutory standing and the Court should reach the 

determination that Appellees’ suggestion is without merit.

The UDJA is “merely a procedural device for deciding cases already within 

a court's jurisdiction rather than a legislative enlargement of a court's 

power.” Texas Ass'n of Business v. Texas Air Control Bd.,852 S.W.2d 440, 444 

(Tex.1993). The Act does not enlarge the jurisdiction of Texas courts nor does it 

confer additional jurisdiction outside of the underlying statutory cause of 

action. See In re Griffith, 485 S.W.3d 529, 537 (Tex. App. – Houston [14th Dist.] 

2015); Rush v. Barrios, 56 S.W.3d 88, 105 (Tex. App. – Houston [14th Dist.] 

 8 Dismissing a losing bidder without standing, when a taxpayer has established standing in the 

same case, has been the determination in the previously referenced City of El Paso v. 

Waterblasting as well as in Dallas County v. Cedar Springs Investments, L.L.C. 375 S.W.3d 317, 

320 (Tex. App. – Dallas 2012).

9 The Appellees’ UDJA claims were dismissed by the trial court in response to the Appellants’ 

Plea to the Jurisdiction. These claims are part of a consolidated portion of this appellate matter.
11

2001); Firemen's Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex.1968). The 

underlying controversy in this matter arises from Chapter 252 and the included 

enforcement provision (§252.061). This statute confers subject matter jurisdiction 

for the court over the claims of the two (2) previously described parties and its 

application to this matter is not in dispute. The Appellees would have this court 

revive their claims under the UDJA as a way to circumvent the strict legislative 

restrictions on standing that were provided by the statute governing municipal 

procurements. They ask this extraordinary step from the Court despite the 

admission that their UDJA claims, though currently dismissed, are presented to the 

Court under the very statute that they claim does not control standing. Appellee’s 

Brief, pg. 27. To allow circumvention of a clear statutory directive and selective 

application of Chapter 252 would create an absurd result and undermine the 

lawmakers clear intent. This conclusion is amply supported as Texas courts have 

repeatedly applied similar standing restrictions under numerous other statutes. See,

e.g., Tex. Dep't of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861-

62 (Tex. 2001) (standing to sue under Texas Family Code governed by statute); 

Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 384-85 (Tex. 2000) (standing to 

sue under Texas Insurance Code governed by statute); NME Hosps., Inc. v. 

Rennels, 994 S.W.2d 142, 147 (Tex. 1999) (standing to sue under Texas Labor 

Code governed by statute); Estate of Teal, 135 S.W.3d 87 (Tex. App.-Corpus 
12

Christi 2002) (standing to sue under Texas Probate Code governed by statute); 

Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 766-68 (Tex. App.-Corpus 

Christi 1999) (standing to sue under Texas Civil Practice and Remedies Code 

limited to parties as defined in statute).

CONCLUSION

For the reasons set forth herein, Appellees have failed to contradict the 

Appellants’ arguments that the trial court erred in determining that Utility had 

standing to pursue claims and relief under §252.061 of the Local Government 

Code. The Appellants incorporate the request for relief including in their initial 

brief and reiterate that the trial court’s determination of standing should be 

reversed and Utility should be dismissed from this litigation with this matter 

remanded to the trial court for further proceedings consistent with this conclusion. 

RESPECTFULLY SUBMITTED,

ANNE L. MORGAN, CITY ATTORNEY

MEGHAN L. RILEY, CHIEF, LITIGATION

/s/ Matthew William Tynan

MATTHEW WILLIAM TYNAN

State Bar No. 24072489

Matthew.Tynan@austintexas.gov

City of Austin – Law Department

P. O. Box 1088

Austin, Texas 78767-1088

Telephone: (512) 974-2918

Facsimile: (512) 974-1311

COUNSEL FOR APPELLANTS 
13

CERTIFICATE OF COMPLIANCE

I certify that the foregoing document contains 2966 words, in compliance 

with Rule 9.4 of the Texas Rules of Appellate Procedure. 

\s\ Matthew William Tynan

Matthew William Tynan

Counsel for Appellants
14

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of foregoing instrument has been 

served, on this the 21st day of November, 2016 to the following:

Via E-Service:

Peter B. Barlow

pbarlow@sgrlaw.com

SMITH GAMBRELL & RUSSELL, LLP

100 Congress Avenue

Suite 2000

Austin, Texas 78701

Telephone: (512) 498-7617 

Facsimile: (512) 879-5032 

ATTORNEY FOR UTILTY ASSOCIATES, INC.

Shelby A. Jordan

sjordan@jhwclaw.com

JORDAN, HYDEN, WOMBLE, CULBRETH & HOLZER, P.C.

1250 S. Capital of Texas Hwy

Suite 330

Austin, Texas 78746

Telephone: (361) 884-5678 

Facsimile: (361) 888-5555 

ATTORNEYS FOR MR. V. BRUCE EVANS

/s/ Matthew W. Tynan

MATTHEW W. TYNAN