No. 03
- 16
- 00565
- CV No. 03
- 16
- 00586
- CV

IN THE THIRD COURT OF APPEA LS AUSTIN, TEXAS

City of Austin a nd Marc A. Ott , in h is Official Capacity as the City Manager for the City o f Austin , Defendants – Appellant s v. Utility Associates, Inc ., and Mr. V. Bruce Evans , a Resident o f Austin, Texas, Individually, Plaintiffs - Appellee s
On Appeal f rom the District Court of Travis County, 98 th 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 DEFENDANT S - APPELLANT S
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

CLERKii 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
I V. Appellees Cannot Use the UDJA to Create An Exception to the Standing Requirements of §252.061

................................ ................... 10 CONCLUSION

................................ ................................ ................................ ........ 1 2
CERTIFICATE OF COMPLIANCE

................................ ................................ ....... 13
CERTIFICATE OF SERVICE

................................ ................................ ................ 14iii 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. A pp. - 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 );

................................ . 10iv 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. 201 5)

................................ ................................ ................. 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
T EXAS C IVIL P RACTICE AND R EMEDIES C ODE § 37.001

- 37.011

............................... 1
T EXAS G OVERMENT C OD E § 311.002

................................ ................................ ......... 5
T EXAS L OCAL G OVERNMENT C ODE § 252.061

................................ .................. passim1 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 th at 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

ex c lusive 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 th e 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 argument s 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 suffici ent 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 Requi rement 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 ascert aining 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 bee n 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 argument s 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 purchas es 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 de scription 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 Cou ncil. The trial court disregarded this self

- serving conclusion at hearings for the Temporary Injunction and on the Defenda nt’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 referenc e 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. Loma s 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 Chapt er 252 as it never references such an exception

. The Appelle e s’ argument that this “general standing” test can be used as an alternative or an exception to statutorily confe rred standing is unpersuasive. They
fail to offer any instance of case law support for this disfavo red 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 particu lar 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 t o the contrary. 6 Appellees’ Brief, pg. 18. This res ponse 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 ques tion 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 t he 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 inten ded. 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 Ind e pendent 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 prop erty 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; t axpayers and losing bidders in contracts for the construction of public works. Appellees have repeatedly concede d 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 n ot 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 Technol ogies, 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 where7 other parties ma y have established jurisdictio nal 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 t hat Utility may avoid dismissal on jurisdictional grounds because of the taxpayer’s involvement.
III. Utility Cannot Obtain Statutory Standing Through Another Party T o The L itigation As an alternative to the ir 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

statu torily 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 part y 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 the se cases address situations8 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 o f this conclusion the Appellees offer the decision in Andrade v. NAACP of Austin . 345 S.W.3d 1 (Tex. 201 1); Appellee’s Brief, pg. 18 . Appellees provide language from the opinion that incorporates the determination that claims of equal protection may be pur sue 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 jurisdict ional door for any party with similar claims (b ut who fail ed the statutory standing test). In addition, and dissimilar from the Court’s consideration in Andrade or Patel , the parties in this matter are not identic ally situation nor do they seek the same relief. While both Evans and Utility seek categ orical 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 a ward 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 applic ation 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 stat ute 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 perm it this result and find that, while10 Evans has established standing under the statute, Utility h as not and is due to be dismissed from the litigation. 8
IV. Appellees Cannot Use the UDJA to Create a n Exception to the Standing Requirements of §252.061 Appellees make one final attempt to convince thi s 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 ma tter 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

re vive 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 a nd 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. A pp. - Corpus12 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 t o parties as defined in statute). CONCLUSION For the reasons set fort h herein , Appellees have failed to contradict the Appellants’ arguments that the trial court erred in determining that Utility had standing to pursue clai ms 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 t he 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 APPELLANTS13 CERTIFICATE OF COMPLIANCE I certify that the foregoing document contains 29 66 words, in compliance with Rule 9.4 of the Texas Rules of Appellate Procedure

.
\ s \ Matthew William Tynan Matthew William Tynan C ounsel f or Appellant s14 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. Capi tal 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