1 NO. 13-15-00237-CV

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF TEXAS

AT CORPUS CHRISTI - EDINBURG

CITY OF PORT ISABEL, TEXAS, MARIA DE JESUS GARZA, GUILLERMO

TORRES AND JOE E. VEGA

Appellants,

VS.

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

Appellees.

From Cause Number 2015-DCL-02342

In the 444 th Judicial District Court of Cameron County, Texas

APPELLANT CITY OF PORT ISABEL’S SUPPLEMENTAL BRIEF,

OBJECTIONS TO TRIAL COURT’S ORDER ON SILVA'S MOTION TO

SHOW AUTHORITY, AND ORDER ADOPTING FINDINGS OF FACT

AND CONCLUSIONS OF LAW

Robert L. Collins

Texas Bar No. 04618100

Audrey Guthrie

Texas Bar No. 24083116

P.O. Box 7726

Houston, Texas 77270-7726

(713) 467-8884

(713) 467-8883 Facsimile

houstonlaw2@aol.com

ATTORNEYS FOR CITY OF

PORT ISABEL ACCEPTED

13-15-00237-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

12/11/2015 10:13:04 PM

Dorian E. Ramirez

CLERK2

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, City of Port Isabel, Texas, and its counsel, and files this

Supplemental Brief and Objection to the Trial Court’s Order on the Silva Motion

to Show Authority and Order Adopting Findings of Fact and Conclusions of Law,

and shows the court as follows:

SUMMARY

 Humberto Silva is not a party to this suit and therefore lacks

standing to bring a motion to show authority. The City of Port Isabel

and counsel responded to Silva's Motion based on lack of standing to

bring a Motion pursuant to Rule 12, T.R.C.P., and timely raised the

objection at the hearing. The trial court did not rule on that objection.

 Attorney Humberto Silva’s findings of fact and conclusions of law

should not have been adopted. The trial court issued an order

adopting the findings of fact and conclusions of law proposed by

Humberto Silva. Based upon the record of testimony, evidence and

affidavits before the court, Humberto Silva’s proposed findings do

not accurately reflect the facts of this case as proved by the record

and should not have been adopted.

 Appellant's proposed findings of fact and conclusions of law should

have been adopted. The trial court did not issue any findings of fact3 and conclusions of law until after initial briefs were filed making that

point. Based upon the record of testimony, evidence and affidavits

before the court, Appellant’s proposed findings accurately reflect the

facts of this case and should have been adopted.

 Silva's Motion to Show Authority Should Be Denied and the Trial

Court's Order Reversed as Silva has no Standing to Bring the

Motion and as the Evidence Demonstrates that Appellees have

attempted by invalid action to use the appealed Temporary

Injunction to cause dismissal of Appellant's appeal of that Order,

thereby depriving counsel and litigants of due process and denying

this Court jurisdiction over a pending appeal.

EVIDENCE IN SUPPORT

Exhibit A: Trial Court Pleadings including:

 Humberto Silva’s Motion to Show Authority

 City’s Response to Motion to Show Authority

 City’s Supplemental Response Regarding Lack of

Silva's Standing

 Order on Motion to Show Authority

Exhibit B: City of Port Isabel’s Proposed Findings of Fact and Law

Exhibit C: Excerpt of Testimony from Hearing on Motion to Show

Authority

Exhibit D: City Commission Meeting Minutes and Agendas

Exhibit E: Excerpts from Port Isabel City Charter4

Exhibit F: Affidavits by Mayor Vega, Commissioner Garza, and

City Manager Ed Meza

Exhibit G: Trial Court’s Order Adopting Findings of Fact and conclusions

of Law

Exhibit H: Hearing on Plaintiffs’ Request for Temporary Injunction and

Defendants’ Plea to the Jurisdiction.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

During a properly-noticed public meeting on April 24, 2015, and pursuant

to a provision of the Port Isabel City Charter, the City Commission separately

considered and voted on the alleged violation of City Charter, Section 2.02, by

three of the Commissioners: Appellant Torres, Appellee Cantu, and Appellee

Zamora. During that meeting, by a duly-recorded majority vote, Appellees were

removed from their positions on the City Commission due to their admitted

business dealings with the City in violation of Section 2.02 through businesses in

which they have a substantial interest. Exhibit D, Exhibit E. Port Isabel City

Charter Section 2.02 prohibits such self-dealing and provides for the

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

other things, doing business with the City. See Exhibit E

.

Appellees, by their counsel Mr. Hinojosa, thereafter filed suit against the

City and the other Appellants in their individual and official capacities for their

actions in voting to remove Appellees from their positions on the City5

Commission for violation of Section 2.02. Appellees sought a temporary

injunction requiring reinstatement of Appellees as voting members of the Port

Isabel City Commission. That injunction was granted and is currently the subject

of timely perfected appeal.

Having been returned to the City Commission by the appealed Temporary

Injunction, Appellees then posted public notice of their intent to hold a Port Isabel

City Commission meeting on May 19, 2015, wherein they would, purporting to

act as City Commissioners, bring action and vote to: 1) terminate the City

Attorney (Appellant’s counsel Mr. Collins); 2) vacate the Commission’s April 24,

2015 finding that Appellees violated the City Charter which was the basis of this

litigation; 3) rescind approval to pay counsel to represent the Appellants in this

case; 4) rescind approval for the investigation of their violations of the City

Charter; and 5) appoint a new City Attorney (Appellee's counsel Mr. Hinojosa).

See Exhibit D.

At that meeting, Appellant Vega, as Mayor of Port Isabel and presiding

officer for any City Commission meeting, read a statement that was made part of

the minutes of that meeting, declaring that any votes by Appellees on the topics

listed above would be void due to their direct respective conflicts of interest in

violations of Tex. Loc. Gov. Code 171.004

. Exhibit C

, pp. 35-36 (testimony of

Port Isabel City Secretary confirming that Mayor Vega raised the issue and gave6

Appellees, and their counsel who was present, actual notice of their conflict of

interest prior to their actions in voting on the conflicted matters). This statement

was read as follows:

... Commissioner Cantu and Commissioner Zamora as the persons

who brought the lawsuit against the City [have an] ethical conflict

which should prohibit them from voting on matters related to the

lawsuit. Any vote to remove the City Attorney or City Manager by

Commissioner Zamora and Commissioner Cantu is also a violation

of their ethical duty as they have a conflict of interest since these

actions are designed to cause the City to abandon its right to appeal

that order as well.... In relation to the items that have been placed on

the agenda tonight, I believe they constitute a conflict of interest for

both Commissioner Zamora and Commissioner Cantu and I believe if

they vote on any such matter that [their] vote will be illegal and null

and void. That being said, I am going to comply with the order of the

court, and allow Commissioner Zamora and Commissioner Cantu to

participate and for them to participate and for them to be able to

claim to vote subject to my pending appeals and objections.

Exhibit D

, p. 2, May 19, 2015 meeting.

Appellant Vega also gave fair notice to Appellees and their counsel Mr.

Hinojosa, that any agenda items that passed only because of Appellees’ selfinterested and improper participation in making a motion or second, and their

votes on any such matter, would be void. Despite their conflicts of self-interest

and the direct connection to this suit, this appeal, and Appellees’ respective

businesses, and despite actual public notice of these conflicts communicated to

Appellees and their counsel, Appellees proceeded to vote on the five issues

previously mentioned; and each issue was either moved or seconded by one or7

more of Appellees. Exhibit D. Absent that improper action by Appellees, none of

these matters would have been considered, put to a vote or be alleged to have been

passed. Exhibit C, p. 27, 35-36.

After claiming to have terminated the City Manager and City Attorney by

these invalid actions and votes, Appellees then filed notice for a June 1 meeting,

wherein they purported by their further invalid actions and vote to hire Appellees’

attorney Gilberto Hinojosa, as the new City Attorney of Appellant. Exhibit D.

Appellees also purported to act and vote to declare that Humberto Silva would be

counsel for the City in this appeal, for the sole purpose of dismissing this appeal

and agreeing to the claims Appellees made in their lawsuit. Exhibit D. However,

Mr. Silva has no representation agreement or contract with the City of Port Isabel.

Exhibit C, p. 79.

As testified to by the City Secretary, the Minutes purporting to reflect that

action, which is the only way the public can determine what action this public

body purports to take, are “gibberish” and “nonsense” such that a member of the

public could not discern that the action taken by Appellees did indeed accomplish

what they claim

-- removal of the City Attorney Mr. Collins, making Appellee's

counsel City Attorney, or retaining Mr. Silva to dismiss this appeal. See Exhibit C

,

p. 48-49 (Testimony by City Secretary that she could not understand the meeting

minutes as written and that those minutes do not make sense in the English8

language). Id. at 122 (Assistant City Attorney Dennis Houfek's testimony

confirming he cannot ascertain what the meeting minutes mean from plain

reading.) Section 551.021 of the Texas Government Code requires that “A

governmental body shall prepare and keep minutes or make a recording of each

open meeting of the body. The minutes must: (1) state the subject of each

deliberation; and (2) indicate each vote, order, decision, or other action taken.”

The above referenced Minutes do not follow this rule because they do not

“indicate each vote, order, decision, or other action taken.” As a result, and

because acts of a public body are only carried out in accordance with lawful,

public action when they can be discerned by members of the public through a

reading of the minutes of such action, Mr. Silva's claims must fail.

Additionally, the agenda posting for the meeting is in violation of the City

Charter and therefore any action was invalid. Exhibit C. at 123. Susana Alcocer,

the City Secretary, testified that the City Charter for the City of Port Isabel requires

that the City Secretary post any notice for a valid, lawful meeting of the City

Commission. Exhibit C, pp.24-25:

Q.

... the charter that's in evidence before the Judge that requires

that the city secretary, you as the city secretary, post any notice

of any valid lawful meeting, correct?

A. Yes.

Q.

... with respect to this May 19th meeting that has been offered

as Exhibit 3, you did not post any notice for that meeting,9 correct?

A. Yes, that's correct.

The Assistant City Attorney also confirmed that the posting of the meeting

agenda was in violation of the City Charter. Id. at 122. Action in an illegal

meeting of this public body is improper.

Appellants’ counsel, Robert L. Collins, has served as the official City

Attorney of Port Isabel since 2006, and has represented, defended and worked

with Appellants in this suit since its onset. See Exhibit F (Affidavit of Appellants)

.

These affidavits were given specific attention by the trial court. When the trial

court was asked to consider all affidavits and pleadings on file, the court replied

“I’m going to consider everything that I have before me and I will give it

whatever weight it deserves.” Exhibit C, pp 138

. Appellants’ counsel, Robert

Collins, Michael Cowen, and Frank Perez, have and continue to meet with

Appellants and represent Appellants in this case. See Exhibit F. Other than the

invalid actions purported to have been taken by Appellees, Appellants have taken

no action or given any notice that Robert Collins no longer represents them or the

City in this suit and appeal. Id.

On October 23, 2015, the trial court held a hearing on Humberto Silva’s

motion to show authority, wherein Mr. Silva maintained that he is now the

attorney for the Defendant City of Port Isabel in this cause, and complained that10

attorney’s Robert L. Collins and that counsel for the individual Appellants,

Michael Cowen, and Frank Perez did not have authority to represent the

Appellants. On October 26 th

, the trial court signed an order granting Mr. Silva’s

Motion to Show Authority, and decreeing that he had the authority to appear on

behalf of the City of Port Isabel. The same order purports to strike all pleadings

previously filed for Appellant City by Robert Collins, among other things. In

response, On November 30 th

, Appellants filed their brief and objections to the trial

court’s Order on Silva’s motion to Show Authority. After Appellant’s Brief was

filed pointing out that there were no Findings or Conclusions by the trial court, on

December 1 st

, 2015, the trial court appears to have signed the Order Adopting

Findings of Fact and Conclusions of Law submitted by Humberto Silva.

Appellants now supplement their November 30 th brief and object to the Findings

of Fact and Conclusions of Law adopted by the trial court.

LEGAL AUTHORITY

Section 171 of the Texas Local Government Code prohibits public officials

with a substantial interest from voting or participating on matters involving that

business. Tex. Loc. Gov. Code 171.004. Purposefully violating the section is a

Class A misdemeanor. Id. at 171.003. Any vote that would not have passed without

the conflicted vote is voidable. Id. 171.006. Dallas County Flood Control Dist. No.

1 v. Cross

, 815 S.W.2d 271, 278 (Tex. App. Dallas 1991)

. A local public official is11

considered to have a substantial interest under this section if a person who has a

substantial interest is related to the official in the first degree of consanguinity or

affinity. Id. 171.002. Appellees, purporting to act in their official capacities, and

only allowed to claim to do so by the appealed temporary order in this case, acted

in direct conflict of interest when they took action and votes made the basis of

Silva's Motion to Show Authority. Those illegal votes and actions should be

disregarded, declared void and annulled.

OBJECTIONS

A. Humberto Silva was not a party in this suit and, therefore, did not have

standing to bring a motion to show authority.

Appellant and undersigned counsel timely filed a response contending that

Humberto Silva does not have standing to file or bring the motion to show

authority in this case, and brought that issue before the trial court at

commencement of the hearing. Rule 12 T.R.C.P., the only basis to challenge

authority of counsel under Texas law, does not provide a vehicle for the relief Mr.

Silva requests, and more fundamentally, the rule specifically addresses standing by

requiring that such a motion can only be filed by a party. Rule 12, T.R.C.P.;

Philips v Philips, 244 S.W.3d 433, 435 (Tex. App.

-- Houston [1st Dist.] 2007, no

pet.)

. An attorney who is not a party to the case does not have standing to file a

Rule 12 motion. Id. Humberto Silva is not a party to this case, and, therefore, does12

not have standing to file a motion to show authority of counsel. The City of Port

Isabel and counsel made subject of the motion timely raised the objection to

Humberto Silva’s lack of standing before the trial court. See Exhibit B.

After Mr. Silva identified himself on the record as the movant, Appellants’

Counsel, Robert Collins, stated at the hearing:

As a preliminary matter

-- and I think we just heard Mr. Silva

correctly state that he is the Movant. The case of Phillips v. Phillips

directs us that Mr. Silva has no standing to be the Movant. And we

filed a response objecting to his motion on the grounds that he has no

standing. That precise issue was raised in the Phillips case, 244

S.W.3d 433.

... What we have here is Mr. Silva, as an attorney, filing

a motion challenging counsel for one of the parties. He's not a party.

No party has made that motion. ...that's exactly what happened in the

Phillips [case], Judge. One of the lawyers made the motion and the

Court of Appeals said this is disposed of as a matter of law.

Exhibit C

, p. 6.

Other than the invalid actions purported to have been taken by Appellees,

Appellants have taken no action to appoint Silva or remove Robert Collins from

representing them in this suit and appeal. Exhibit F. Additionally, there is no

representation agreement to give Silva authority to represent the City in this suit.

Exhibit C, p. 79. The trial court erred in granting Mr. Silva’s motion, despite his

lack of standing. The trial court made no ruling on the standing issue despite it

being timely raised by Appellant's.

B. The Trial court should not have adopted The findings of fact and

conclusions of law proposed by Humberto Silva.13

The findings of fact and conclusions of law proposed by Humberto Silva

and adopted by the trial court, and attached hereto as Exhibit G, do not accurately

reflect the facts of this case as established by the testimony, evidence and

affidavits admitted at the hearing and in the record. More specifically, appellants

object to the following findings for the following reasons:

 In item number 5 of the Trial Court’s Findings of Fact, the court found that

the City conducted a lawfully-posted Special Meeting on May 19, 2015.

This conclusion is not supported because there is no evidence to that effect

and:

o According to testimony by City Secretary Susana Alcocer, the City

Charter requires that the City Secretary post any notice for any

meeting to be a valid, lawful meeting of the City Commission. Ms.

Alcocer did not post the notice for the meeting held on May 19.

Exhibit C, pp. 24-25. Therefore, the May 19 th meeting was not

lawfully posted, notice was not lawfully given and the actions

therein taken were not in accordance with the City Charter or the

Texas Open Meetings laws.

o The Assistant City Attorney also testified that the posting of the

subject meeting agenda and notice of meeting was in violation of the

City Charter. Id at 122.14

 In item number 7 of the Silva proposed Findings of Fact, the court found

that the termination of Robert L. Collins as the city attorney was because

the City was dissatisfied with his services, and not because the

commissioners had a personal or pecuniary interest in the termination of

his services. In item number 8 of the Silva proposed Findings of Fact, the

court found that the termination of Robert L. Collins was not related to any

matter in which the city commissioners had a personal interest such that

they would have a conflict of interest. These conclusions are not supported

because there is no evidence to support them, they are so obviously against

the great weight of the evidence and:

o At the onset of the May 19 th meeting, Mayor Vega gave notice to

Appellees that they had conflicts of interest, and that any vote to

remove the City Attorney or the City Manager would be a violation

of their ethical duty, would be a conflict of interest, would be illegal,

and would be null and void. Appellees had actual awareness of their

conflicts. Exhibit D, pp. 2.

o City Secretary Susana Alcocer, who is specially trained, experienced

and worked daily for many years with municipal conflict of interest

rules in her capacity as the official City Secretary, and who has

special training through the City Secretary Association and Texas15 Municipal League with respect to municipal officials conflict of

interest issues, testified that Appellee Commissioners should not

have acted or voted if they have a personal interest in the outcome of

something, or if it pertains to them, as is obviously the case here.

Exhibit C, pp. 28-29.

o The action before this court is based upon Appellee’s admitted

dealings and business transactions with the City of Port Isabel

through businesses in which they admit to have a substantial interest

pursuant to Tex. Loc. Gov. Code 171.004. According to the

affidavit of then-City Manager Edward Meza, Appellees Cantu and

Zamora had conducted business with the City in violation of the City

Charter when they directed city employees to bring city vehicles to

their automotive businesses for service. Exhibit F

, affidavit of

Edward Meza. In her affidavit, Appellant Commissioner Garza

stated that Appellees Cantu and Zamora admitted to doing business

with the city through their respective car repair businesses. Exhibit

F

, Affidavit of Maria Garza

. Appellant Mayor Joe Vega also stated

in his Affidavit that Appellees were doing and had done business

with the city. Exhibit F

, Affidavit of Joe Vega

. These affidavits were

part of the evidence submitted and considered by the trial court.16 Exhibit C, pp 138. At the April 24 th hearing before this court,

Appellee’s counsel judicially admitted Appellees respective breach

of the City Charter and self-dealing in business transactions with the

City: “They (the City of Port Isabel) would send their business to

Mr. Zamora on occasion, to his business to repair, they would send

their business to Mr. Cantu on occasion to repair...” Exhibit H, pp

14.

o Appellees Zamora and Cantu are the plaintiffs in this suit against the

City, which is being defended by Mr. Collins as City Attorney. Any

vote which would have an effect on this suit, including the vote to

remove Mr. Collins as City Attorney, would constitute a personal

interest in which Appellees have an obvious conflict. In addition,

during the June 1 st meeting, Appellees sought to dismiss this appeal

challenging the injunction that is currently allowing them to remain

in office and purport to take these actions. The above-mentioned

testimony and affidavits establish that Appellees Zamora and Cantu

have both personal and pecuniary conflicts of interest in this matter

.

 In items number 11 of the Trial Court’s Findings of Fact, the court found

that there was no conflict of interest when Appellees acted as City

Commissioners to purport to retain attorney Humberto Silva. These17

conclusions are not supported because Appellees Zamora and Cantu voted

to retain Mr. Silva in order to terminate the City of Port Isabel’s appeal,

where Appellees Zamora and Cantu are the plaintiffs who would benefit

and indeed economically profit from capitulation of the City’s position in

this litigation. Exhibit D

, June 21 meeting minutes. As explained above,

Appellees have a personal and pecuniary interest in this lawsuit. The

conflict is obvious and there is no evidence to support the conclusion

adopted by the trial court.

 In item number 3 of the Silva’s proposed Conclusions of Law, the trial

court found that Appellee’s acting as City Commissioners had no

substantial interest in nor prohibited economic effect from the actions and

votes they undertook to terminate Robert Collins as counsel for the City

according to section 171 of the Local Government Code. This conclusion

is not supported because there is no evidence to support it and because this

law does not apply:

o As stated above, the basis for the suit in which Humberto Silva

brought his motion to show authority as Movant, involves the

substantial personal economic interest of Appellee’s Zamora and

Cantu. See Exhibit F

. Section 171 of the Texas Local Government

Code prohibits public officials with a substantial interest from voting18 or participating on matters involving that business. Tex. Loc. Gov.

Code 171.004.

 In item number 4 of the Silva proposed Conclusions of Law, the trial court

found that the Port Isabel City Charter has no conflict of interest provisions

which would prohibit Port Isabel City Council (sic) members from taking

actions terminating Robert Collins as counsel for the City. This conclusion

is not supported because there is no evidence to support it, it is contrary to

the evidence and the City Charter has precisely such a conflict of interest

prohibition:

o The Port Isabel City Charter states that “The Mayor, Commissioners,

and other officers and employees shall not be interested in the profit

or emoluments or any contract, job, work or service for the City of

Port Isabel.” Exhibit E, §2.02. The penalty for violation of §2.02 is

the immediate forfeiture of and disqualification from being a

candidate for or holding office. Id

.

o According to the Affidavits of Edward Meza, and Appellants Mayor

Joe Vega, and Commissioner Garza, Appellees were doing business

with the City. Exhibit F

. Appellee’s have admitted such business

activity. Exhibit I, pp 14.19

o In purporting to act to remove Mr. Collins as City Attorney, so they

can then act to replace the City Attorney with Mr. Silva with orders

to dismiss the appeal before this court, Appellee Commissioners

Zamora and Cantu are attempting to usurp the legal consequence of

their violations of the city charter by further illegal acts and selfdealing designed to interfere with this Court's jurisdiction and the

legal processes. 1

 In item number 4 of the Silva’s proposed Conclusions of Law, the trial

court found that since the majority of the City of Port Isabel City

Commissioners were parties to the instant lawsuit when the termination of

Robert Collins took place, Section 171.004(c) negates any possible

conflict. This conclusion is not supported because the statute does not

apply to this case:

o Section 171.004(c) negates conflict if a majority of a governing body

is required to file affidavits under 171.004(a). 171.004(a) requires

anyone with a substantial interest in a business entity or real property

with an issue before the governing body to file an affidavit. Of the

five commissioners including the Mayor, only Commissioners

1 Also contrary to the City Charter which requires the City Attorney represent the City in all

litigation

– Mr. Silva does not purport to be City Attorney, indeed, Appellee’s trial counsel, Mr.

Hinojosa now claims to be City Attorney, again through illegal acts and votes of Appellee’s20 Zamora and Cantu, a minority, have an underlying business interest

conflict related to this lawsuit, and that has nothing to do with filing

affidavits. There are not a sufficient number of commissioners with a

substantial business interest to constitute a majority and potentially

invoke 171.004(c). This section does not apply, the evidence does

not support such a claim and this Conclusion is erroneous.

 In item number 5 of the Silva proposed Conclusions of Law, the trial court

found that the termination of Robert Collins as the City Attorney was not a

matter that involved any direct personal interest of any commissioner such

that the action would be void. This conclusion is not supported because it

is contrary to the evidence and:

o As discussed above concerning Silva's proposed Finding of Facts

number 7, the record shows that here, the Appellees have an

admitted pecuniary interest and a personal interest. Section 171 of

the Texas Local Government Code prohibits public officials with a

substantial interest from voting or participating on matters involving

that business. Tex. Loc. Gov. Code 171.004. Here, Appellees have a

clear conflict in acting or voting concerning this appeal and lawsuit

and with respect to counsel's status as they have a direct interest in

this case, in the business they admittedly did with the City in21 violation of the City Charter and state law, and in keeping their paid

positions as Commissioners despite the Charter mandate that they

are automatically removed from and disqualified to hold office. See

Exhibit E. Appellee's self-dealing and conflict could be no more

obvious.

 In items numbers 6 and 7 of the Silva proposed Conclusions of Law, the

trial court found that the hiring of Humberto Silva as the attorney for the

City of Port Isabel in this case did not create a conflict of interest. This

conclusion is not supported because it is contrary to the evidence:

Appellees Zamora and Cantu acted and voted to retain Mr. Silva in order to

terminate the City of Port Isabel’s appeal of this case, where Appellees

Zamora and Cantu are the opposing parties. Exhibit D

, June 21 meeting

minutes. The conflict of interest is obvious, and the alleged hiring of Silva

is in doubt due to the infirmity of the notice of that meeting and the fact

that the Minutes are defective due to being incomprehensible and not

comporting to 551.021 of the Texas Government Code. The trial court’s

finding has no basis.

 In item number 9 of the Silva proposed Conclusions of Law, the trial court

concluded that Robert Collins failed to meet his burden of proof to show

that he had the requisite authority to represent the city in its official22

capacity in the trial court and in this court. Item number 10 concludes that

Mr. Collins was lawfully terminated by the City, and no longer has the

authority to represent The City. These conclusions are not supported

because Silva had no standing to bring the Rule 12 motion and as they are

contrary to the evidence and record of this case:

o Appellees action and vote to remove Appellant's counsel Robert

Collins was invalid and void due to infirmity of the meeting notice,

an obvious conflict of interest, and the motion would not have been

considered or passed without the votes of the self-interested appellee

commissioners. In addition, Appellees action and vote to remove

Robert Collins was invalid and void because it is contrary to the law

to allow illegal and improper action and votes purportedly made as

part of the acts of a public body to be given any effect or probity in

this context and as the meeting was not properly noticed and as a

result any action purportedly taken at the meeting was improper as a

violation of the Open Meetings Act and the minutes, which are the

official statement of whatever action was taken are “gibberish and

nonsense” such that they cannot be discerned or reasonably claimed

to have accomplished what Mr. Silva alleges.23

o Other than the void action and void vote, nothing in the record

indicates that Robert Collins has been removed as the City Attorney

of Port Isabel or as counsel in this case. As evidence of his

authority, Mr. Collins has continued to be and act as the attorney of

record and City Attorney in other litigation as proved by this record.

See Exhibit C

, pp 24, where the Trial Court takes judicial notice that

Robert Collins was listed as counsel of record for the City of Port

Isabel in a case against the City of Brownsville the day of the

October 23 rd hearing.

o The Port Isabel City Charter authorizes the City Attorney represent

the City in all cases pending in any Court wherein the City is a party.

Port Isabel City Charter §3.05.

o Assistant City Attorney Dennis Houfek testified based on special

knowledge and training including courses from Texas Municipal

League and other training on the issues of conflict of interest for

members of a public entity that Appellee Commissioners had a

conflict of interest in terminating Robert Collins as the City

Attorney, and that the vote to remove Robert Collins was void.

Exhibit C, pp. 118-121. Because the vote to remove him was void,

Mr. Collins remains the lawful City Attorney for the City of Port24 Isabel, and has the authority to represent the City of Port Isabel.

 In addition to the above, any action taken by Appellee Commissioners

Zamora and Cantu should be considered void, and no effect should be

given to their votes, because the injunction, which is the subject of this

appeal, allowing them to purport to sit as Commissioners and vote in the

first place, was improper. By attempting to use their improperly granted

authority to terminate the appeal challenging said authority, Appellees are

attempting frustrate the judicial process and circumvent the authority and

jurisdiction of this Court. This subverts the very foundations of justice for

a corrupt purpose.

C. Appellant’s proposed findings of fact and conclusions of law are

supported by the evidence and should have been adopted by the trial court.

As addressed in more detail in Appellant’s Findings of Fact and

Conclusions of Law attached hereto as Exhibit B, the City of Port Isabel

filed proposed findings of fact and conclusions of law which accurately

concluded that:

 Humberto Silva is not a party to this lawsuit, and, therefore, did not have

standing pursuant to Rule 12 T.R.C.P..

 The votes that purported to remove Robert Collins as City Attorney and

appoint Humberto Silva as Counsel in this suit are void due to the self-25

interest of the commissioners who brought the motion, the substantial

self interest these commissioners have in this proceeding pursuant to

Tex. Loc. Gov. Code 171.004, and the fact that the motions would not

have been considered or passed without the actions of the self-interested

commissioners, Appellees.

 Appellees not only purported to replace opposing counsel in this appeal

with an attorney of their choosing, but they also purported to appoint

their attorney, Mr. Hinojosa, as the new City Attorney. Conflicts of

interest of all involved in those dealings could be no more obvious.

 Appellee/Plaintiffs plainly and openly used a temporary injunction meant

to maintain the status quo, and instead used the power of that appealed

order to accomplish their subsequent void and illegal actions and votes to

wrongfully claim to control both sides of this lawsuit, including their

stated intent to dismiss the City’s Appeal of the temporary injunction.

 Due to the votes being void for personal conflicts of Appellees, Robert

Collins is City Attorney for Port Isabel and the only attorney of record

for Port Isabel in this lawsuit.

 At the hearing, Mr. Hockema, the interim City Manager, testified that

there is no representation agreement authorizing Mr. Silva to represent

the City of Port Isabel. Exhibit C, p. 79.26

 Attached as Exhibit F

, and made a part of the record the trial court

considered as reflected by the transcript of the hearing, are Affidavits by

City Manager, Ed Meza; Defendant (Appellant) Maria Garza; and

Defendant Appellant Joe Vega stating that it is their intention and desire

to pursue the appeal they filed and for the City to be represented in that

matter by Robert Collins. Exhibit F. Despite Appellants’ intention and

desire, Mr. Hockema admitted that Mr. Silva, who was appointed in a

motion by Appellees to represent Appellants, was specifically instructed

to terminate this appeal. Exhibit C

, p. 79.

 Appellee's Cantu and Zamora took actions to remove Appellants’ counsel

Mr. Collins from defending the lawsuit that they filed, but not from all

City of Port Isabel representation, demonstrating their intention to only

act when it fit their personal interests and benefitted them personally. The

City Secretary, Susana Alcocer, testified that no action has been taken to

remove Robert Collins as counsel representing Port Isabel in other

litigation. Exhibit C, p. 24.

o She testified that:

Q. There has not been any action by the City of Port Isabel

or anybody out there claiming that I'm not representing the city

as the city attorney in that lawsuit involving the City of

Brownsville has there?

A. No.27 o At the hearing, she described the specific acts of conflicts of

interest of Appellees in this case when she testified that: Cantu, a

Plaintiff (Appellee), in this lawsuit, made the motion to remove

Defendant (Appellant) City of Port Isabel’s counsel in this case at

the May 19, 2015 meeting; Exhibit C

, pp. 27-28; and Appellee

Zamora seconded, and both Appellees Cantu and Zamora voted, to

retroactively remove Defendants Garza, Torres, and Vega’s

counsel in this lawsuit. Id. at pp. 37-38. Those are the improper

actions made the basis of the Motion to Show Authority. Rule 1,

T.R.C.P. would dictate that the wrongful actions of Appellees not

be supported by a Rule 12 motion as the rules should be applied to

do justice.

o The City Secretary also testified that Appellees Cantu and Zamora

repeatedly moved, seconded, and voted on items related to them

personally, and this lawsuit. Exhibit C, 43-45; Exhibit D (Meeting

minute showing Cantu and Zamora moving, seconding, and voting

on issues related to their personal business and litigation they filed

and are party to in their personal capacities). Appellee Cantu also

placed the agenda item, seconded, and voted to rescind the finding

that he violated the City Charter, Exhibit C

, pp. 34, and that28 without Cantu’s seconding, the vote would never have happened.

Exhibit C, p. 35; Exhibit D.

o Before serving Port Isabel as Assistant City Attorney, Dennis

Houfek served as a Special Agent of the Federal Bureau of

Investigation, and has worked in both the public and private sector.

Exhibit C, 117-118. At the hearing, Mr. Houfek explained that

Appellees Cantu and Zamora had a personal interest in the actions

related to this lawsuit and to remove the City Attorney and City

Manager so they could accomplish dismissal of this appeal and

victory in their litigation. He further testified that Appellees Cantu

and Zamora had a conflict and should not have moved, seconded

or voted on the issues related to themselves personally, and this

lawsuit, as described herein. Exhibit C, 121.

CONCLUSION

Mr. Silva did not have standing to bring a motion to show authority.

Therefore, there was no jurisdiction for the trial court to consider or grant

Mr. Silva's Motion, and it should be rendered as denied, and the same

Motion filed by Mr. Silva in this Court should likewise be denied. The

Findings of Fact and Conclusions of Law proposed by Mr. Silva and

adopted by the trial court do not accurately reflect the facts as demonstrated29

by the record and applicable law, and the order adopting the Findings and

Conclusions should be reversed and disregarded. The facts are clear from the

record: Robert Collins is the proper attorney of record for the City of Port

Isabel, and no legitimate or lawful action has been taken to the contrary. The

City of Port Isabel’s filed and proposed findings of fact and conclusions of

law accurately reflect the facts and applicable law in this case.

PRAYER

Appellant City of Port Isabel, and its undersigned counsel, pray that for all

of the foregoing reasons, this Court will reverse the trial court’s order on Silva’s

Motion to Show Authority, and deny that Motion in this Court as well, allowing

this Appeal to proceed and so that justice may be done.

Respectfully submitted,

____________

_______________

Robert L. Collins

T e x a s B a r N o

. 0 4 6 1 8 1 0 0

Audrey Guthrie

Texas Bar No. 24083116

P

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A T T O R N E Y S F O R C I T Y O F30 P O R T I S A B E L

CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I

certify that I have served this document on all other parties, on this 11th day of

December, 2015:

Humberto Silva

Law Office of Humberto Silva

P.O. Box 2091

Donna, Texas 78537

Tel. 956-463-4896

Hsilvalaw1993@yahoo.com

Ricardo L. Salinas

Law Office of Salinas Flores

2011 North Conway Avenue

Mission, TX 78572

Fax: 956-580-9688

rsalinaslaw@yahoo.com

Michael R. Cowen

T H E C O W E N L A W G R O U P

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Robert L. Collins