United States Court of Appeals

Fifth Circuit

FILED

December 21, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-50655

Summary Calendar

 

DIANA MINELLA,

Plaintiff-Appellant,

versus

CITY OF SAN ANTONIO TEXAS, A Municipal Corporation; EDWARD GARZA,

Mayor of City of San Antonio, in his official capacity; BOBBY

PEREZ, City Council Member, in his official capacity; ANTONIETTE

MOORHOUSE, City Council Member, in her official capacity; ENRIQUE

MARTIN, City Council Member, in his official capacity; DAVID A.

GARCIA, City Council Member, in his official capacity; ENRIQUE M.

BARRERA, City Council Member, in his official capacity; JULIAN

CASTRO, City Council Member, in his official capacity; BONNIE

CONNER, City Council Member, in his official capacity; CARROLL

SCHUBERT, City Council Member, in his official capacity; DAVID

CARPENTER, City Council Member, in his official capacity; TERRY

BRECHTEL, City Manager, in her official and individual

capacities; ANDREW MARTIN, City Attorney, in his official and

individual capacities; MUNICIPAL CIVIL SERVICE COMMISSION;

GILBERTO V. TOBIAS, Municipal Civil Service Commission Chairman,

in his official capacity; JURETTA MARSHALL, Municipal Civil

Service Commission Member, in her official capacity, 

Defendants-Appellees.

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Appeal from the United States District Court

for the Western District of Texas

--------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Plaintiff Diana Minella appeals the dismissal on summary

judgment of her suit against the City of San Antonio and numerous

city officials alleging due process violations in relation to her
1 Proposition 3 reads, “Shall Article VI, Municipal Civil

Service of the City Charter Sections 69 and 70 be amended to

remove certain licensed professionals and executive job

classifications from Municipal Civil Service coverage and

protection, specifically, assistant directors of City

Departments, architects, assistant auditors, attorneys, dentists,

doctors, engineers, psychologists, veterinarians, part-time and

seasonal employees; and providing for alternate members to the

Municipal Civil Service Commission?” 

2

dismissal without benefit of civil service review. Because we

find that Proposition 3, which removed Minella’s job from civil

service protection, was made effective by the San Antonio City

Council prior to her dismissal, we affirm.

I. 

Plaintiff Diana Minella was employed by the City of San

Antonio as an Assistant City Attorney I, a classified civil

service position, in June 2001. In August 2001, Minella was

notified that the City Council intended to propose a charter

amendment, Proposition 3, removing civil service coverage from

her job classification. The City Council passed Ordinance 94375,

which ordered the placement of Proposition 3 along with other

propositions on the November 6, 2001 special election ballot.1

The measure passed. 

Section 3 of Ordinance 94375 provided that the propositions,

if approved by a majority of the voters voting, would become

“effective when the City Council enters an order stating an

effective date of the propositions and states on the records of

the City declaring that the Charter amendments have been
3

adopted.” This language was not part of the proposition

presented to the voters. After the special election, the City

Council passed a Ordinance 94956, which contained a declaration

that the majority of voters had adopted the charter amendments. 

It also stated that “these Charter Amendments shall take effect

when the City Council takes action by separate ordinance stating

the effective date of each respective proposition.” 

In September 2002, the City Council passed Ordinance 96399

approving the budget for the 2002-2003 fiscal year. Although the

ordinance did not mention Proposition 3, the budget expressly

listed those jobs covered by Proposition 3, including that of

assistant city attorney, as “unclassified” positions, meaning

they were no longer covered by civil service protection. The

ordinance states that it “shall take effect on the first day of

October, 2002.” 

Minella was fired by the city in January 2003 and was denied

civil service review of her termination. Minella filed suit

alleging that her rights to procedural and substantive due

process were violated. Cross-motions for summary judgment were

filed on the question of whether the city council took action to

make Proposition 3 effective either by order or separate

ordinance. The district court found, on motion for new trial,

that the budget Ordinance 96399, was a separate ordinance

effectuating the charter amendment approved in Proposition 3 as

required in the city’s previous ordinances. The district court
2 Summary judgment may be affirmed if it is sustainable on

any legal ground in the record, and may be affirmed on grounds

rejected or not stated by the district court. S&W Enterprises,

LLC v. South Trust Bank of Alabama, NA, 315 F.3d 533, 537-38 (5th

Cir. 2003). 

4

then denied all of Minella’s claims against the defendants. 

Minella appeals.

II. 

The only issue in this appeal is whether the district court

erred in holding that the city council’s adoption of the budget

Ordinance 96399 properly implemented Proposition 3. As the

district court’s decision is based on a question of law, our

review is de novo. Ellis v. Liberty Assur. Co. Of Boston, 394

F.3d 262, 269 (5th Cir. 2004). 

Although not relied upon by the district court, Texas Local

Government Code § 9.005(b) also affects when charter amendments

are effective.2 Section 9.005(b) states that a charter amendment

to a municipality’s charter “does not take effect until the

governing body of the municipality enters an order in the records

of the municipality declaring that the . . . amendment is

adopted.” We read this provision to necessarily mean that the

amendment does take effect when the governing body enters an

order that the amendment was adopted. The City Council of the

City of San Antonio took that action on November 15, 2001, when

it entered an order declaring that the majority of voters adopted

the charter amendment in Ordinance No. 94956. 
5

Since the Texas Legislature has set forth requirements

regarding when a voter approved charter or amendment becomes

effective as set forth in § 9.005(b), any city ordinance

purporting to invoke a contrary effective date is unenforceable

to the extent it conflicts with the statute. Dallas Merchant’s

and Concessionaire’s Assoc. v. City of Dallas, 852 S.W. 2d 489,

491 (Tex. 1993). Accordingly, the purported delay of effective

dates of the charter amendments in Ordinances 94375 and 94956 was

without effect. In addition, whether Proposition 3 was made

effective in the Budget Ordinance 96399 is irrelevant. 

Proposition 3 took effect in accordance with Texas Local

Government Code § 9.005(b) when the city council entered an order

that it was adopted. Accordingly, it was effective prior to the

enactment of the budget ordinance and, more to the point, was

effective prior to Minella’s termination. 

A contrary rule would allow a city council to effectively

“veto” a voter adopted amendment by delaying its implementation. 

In re Robinson, 2005 WL 285967 (Tex. App. Houston 2005). In

Robinson, the Texas Appellate Court stated “We will not interpret

section 9.005(b) in such a manner as to give the City Council the

choice of deciding when, or indeed if, a charter amendment that

has been passed by a majority of the voters becomes effective.” 

Id. Although Robinson involved a mandamus proceeding to force

the Houston City Council to enter an order declaring the adoption
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of voter approved propositions, we see no reason why the same

logic would not apply to this case. 

IV. 

For the foregoing reasons, we affirm the judgment of the

district court. 

AFFIRMED.