Abraham Jones v. City of Arcola, Texas Robert E. Hebert, Receiver for the City of Arcola And City Council for the City of Arcola

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00250-CV

Abraham Jones, Appellant

v.

City of Arcola, Texas; Robert E. Hebert, Receiver for the City of Arcola;

and City Council for the City of Arcola, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. 93-08498, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

The city council ("Council") of the City of Arcola ("City") sitting as a removal

court removed Abraham Jones as the City's mayor pursuant to the statutory procedure outlined

in the Texas Local Government Code. See Tex. Local Gov't Code Ann. § 21.002 (West 1999).

After his removal from office, Jones intervened in an ongoing lawsuit in Travis County district

court and sued the City, Robert Hebert, the temporary receiver for the City, and the Council

contending that the Council exceeded its authority in removing him from office. He asked the

district court to declare the Council's removal proceedings null and void. (1) The district court

denied Jones's request for declaratory relief. Raising three issues, Jones contends that the district

court erred in denying his request for declaratory relief. We will affirm the district court's

judgment.

Background

On May 4, 1996, Abraham Jones was elected mayor of the City, a general-law

municipality. On July 3, 1996, Hebert sent Jones a letter asserting that Jones was violating several

sections of the City's waste discharge ordinance number 94-607-1 by improperly discharging

waste water from his residence. Hebert's letter requested that Jones comply with the ordinance

and make arrangements to connect his residence to the City sewer system by July 12, 1996.

On August 12, 1996, Joe Williams, the operator for the City charged with

overseeing compliance with the City's waste discharge ordinance, presented a written complaint

to Council member Greg Abarr alleging that Jones failed to properly dispose of waste water from

his residence. (2) In the complaint, he asserted that Jones violated three sections of the waste

discharge ordinance and that these violations were grounds for removing Jones as mayor under

Chapter 21 of the Local Government Code. (3) See § 21.002(f). In his supporting affidavit,

Williams stated, "Failure of the City to enforce its Waste Water Discharge Ordinance may cause

it to be found in violation of state regulations regarding the discharge of waste waster, and subject

the City to monetary penalties assessed by the State of Texas."

On August 13, Jones was served with a copy of Williams's complaint and received

notice that a hearing would be held on August 22 before the Council regarding his alleged

violations of the waste discharge ordinance.

On August 22, Jones appeared at the hearing with his attorney. Council member

Abarr presided over the hearing and all but one of the remaining Council members attended and

participated. An attorney representing the City called Sally Cantu, the City secretary, who

testified that the property at issue was Jones's residence. The City's attorney also called Williams

who testified about Jones's violations of the ordinance. Jones then testified in his own defense

regarding the alleged violations. Each attorney cross-examined the other side's witnesses. The

Council agreed to table a vote on Jones's guilt or innocence regarding the alleged violations of the

ordinance until the next Council meeting. The Council gave Jones one more opportunity to

connect to the City's sewer system and the hearing was recessed after Jones agreed to bring

evidence in the form of a receipt for connection to the sewer system to the next Council meeting

on September 3.

On September 3, Jones appeared at the Council meeting. He stated that he had not

had his residential property connected to the sewer system. The Council members who

participated in the hearing on August 22 then voted and found that Jones was guilty of intentionally

violating the City's waste discharge ordinance. After finding Jones guilty of all three charges, the

same Council members determined that sufficient cause existed to remove Jones as mayor. The

same Council members then voted unanimously to remove Jones as mayor and appointed Council

member Gipson as the new mayor.

Jones intervened in the ongoing lawsuit in the Travis County district court and

asked the district court to declare the Council's removal proceedings null and void. The parties

proceeded on a stipulated evidentiary record that contained (1) a copy of the City ordinance at

issue; (2) a copy of Williams's complaint; (3) copies of all the notices given to Jones; (4) tapes of

the Council meetings during which the issue of Jones's violations of the City ordinance were

discussed, as well as (5) the minutes from those meetings; and (6) a copy of the Council's

judgment finding Jones guilty of violating the ordinance. The district court denied Jones's request

for declaratory relief and then severed the order rendering it final for appellate purposes. Jones

appeals the district court's denial of his request for declaratory relief.

Discussion

On appeal, Jones raises three issues contending the trial court erred by denying his

request to declare the removal proceedings null and void because (1) he was not given proper

notice of the removal proceedings; (2) the Council "failed to conduct a statutory trial;" and (3) the

Council's actions violated Article I, section 19 and Article III, section 35 of the Texas Constitution

and the due process clause of the Fourteenth Amendment to the United States Constitution.

Statutory Procedure

The Texas legislature vested the power to remove a mayor from office in the city

council and no power of review is given to the courts. See § 21.002; Huntress v. McGrath , 946

S.W.2d 480, 485 (Tex. App.--Fort Worth 1997, orig. proceeding) (citing Riggins v. City of

Waco , 93 S.W. 426, 427 (Tex. 1906)). The Texas Supreme Court recently scrutinized this

statutory procedure set out in Local Government Code section 21.002 in Bradley v. Texas , 42 Tex.

Sup. Ct. J. 513 (April 8, 1999).

The law requires that removal be for a specific cause, and a city council may not

deprive its mayor of office in an arbitrary or capricious manner. Huntress, 946 S.W.2d at 485 .

A mayor may be removed from office for an intentional violation of a municipal ordinance. See

§ 21.002(c)(2). The statutory procedure to remove the mayor of a general-law municipality

commences when a complaint against the mayor is presented to a council member of the

municipality. See § 21.002(f). That council member shall then (1) file the complaint; (2) cause

a copy of the complaint to be served on the mayor; (3) set a date for the trial of the case; and (4)

notify the mayor and the other council members to appear on that day. Id. A majority of the

council members constitute a removal court that tries and determines the allegations made in the

complaint against the mayor. See § 21.002(g). The council members select one member of the

council to act as a presiding officer of the court. Id. Each council member assumes a judicial role

in the proceeding. Bradley , 42 Tex. Sup. Ct. J. at 517 . If two-thirds of the participating council

members find the defendant guilty of the charges in the complaint and find that the charges are

sufficient cause for removal from office, then the presiding officer of the court shall enter a

judgment removing the mayor from office and declare the office vacant. See § 21.002(h)

(emphasis added).

Standard of Review

Should the removal court remove the mayor from office, the statutory procedure

in section 21.002 lacks a provision for the removed mayor to file a motion for new trial or appeal

the removal court's decision. That is because once the council members sitting as a removal court

decide to remove the mayor, their status as judges ends and the court no longer exists. State v.

Bradley , 956 S.W.2d 725, 737 (Tex. App.--Fort Worth 1997), rev'd on other grounds , 42 Tex.

S. Ct. J. at 513 (no statutory provision vests power in mayor or council seated after mayor is

removed to grant new trial or accept notice of appeal).

The district courts may only review whether the council exceeded its lawful

authority regarding a removal. Riggins , 93 S.W. at 427 . If a court so determines, then the

council's actions may be treated as a nullity. Beyond that determination, courts have no rightful

power over the council's removal of a mayor from office. Id. The most that courts may do is

"inquire whether or not charges were duly preferred, a hearing had, and evidence adduced tending

to sustain them." Id.

Consequently, this Court's review of the Council's removal proceeding is limited.

This Court has no authority to perform an evidentiary review of the removal hearing; we may only

review the procedural aspects of the scheme set out in Local Government Code section 21.002 and

determine whether the Council acted illegally, unreasonably or arbitrarily in removing Jones as

mayor. See generally Bradley , 42 Tex. Sup. Ct. J. at 514 ; Lipscomb v. Randall , 985 S.W.2d 601,

605 (Tex. App.--Fort Worth 1999, no pet. h.).

Lack of Proper Notice

In his first issue, Jones contends that the Council did not comply with section

21.002(f)(2) of the Local Government Code because it failed to provide him with proper notice

of Williams's official complaint regarding his alleged violations of the City's waste discharge

ordinance. See § 21.002(f)(2). Specifically, he contends that Council member Abarr "failed to

have the [Williams] complaint served upon him and no proof of service was submitted into

evidence by the City of Arcola in the proceeding below."

Despite Jones's assertion that he was not served with a copy of Williams's

complaint, he admits in the statement of facts portion of his appellate brief that he received a copy

of Williams's complaint. Additionally, the stipulated evidentiary record considered by the district

court contains a copy of Williams's complaint with the notation in the lower right-hand corner

"8/13/96 @ 12:21 p.m. served." We conclude that the district court properly determined that

Jones received notice of the complaint and charges against him.

Jones also complains that he did not receive proper notice of a "trial." He

acknowledges that he received two notices about Council meetings; however, he argues the

Council meetings were not the same as a trial required by section 21.002(f). When a complaint

is made against a mayor, the complaint must be presented to a council member and that council

member shall "set a date for the trial of the case and notify the mayor and other [council members]

to appear on that day." See § 21.002(f)(3) & (4).

Jones admits that he received two notices each relating to two different Council

meetings. He acknowledges receiving the first notice dated August 19, which was also posted

pursuant to the Open Meetings Act, and introduced into evidence. The notice stated that there

would be a special Council meeting beginning at 7:00 p.m., Thursday August 22, 1996, with the

subject being to "hear complaint against Abraham Jones, Mayor of the City of Arcola, in regards

to violation of ordinance no. 94-607-1 which is City of Arcola waste discharge ordinance." He

received the second notice dated August 30, which also was posted pursuant to the Open Meetings

Act and introduced into evidence. The notice stated that there would be a regular Council meeting

beginning at 7:00 p.m., Tuesday September 3, 1996, the subject of which included "consider and

vote on charges contained in complaint filed against Abraham Jones, mayor of the City of Arcola,

in regards to violation of ordinance no. 94-607-1 which is City of Arcola waste discharge

ordinance."

Jones received notice that a hearing was going to take place regarding his alleged

intentional violations of the City's waste discharge ordinance. He appeared at the hearing with

an attorney who cross-examined the City's witnesses and called Jones to testify in his own behalf

before the Council that was sitting as a removal court. Based upon Jones's actions in appearing

with an attorney who was prepared for a trial and who proceeded to act as if the hearing was a

trial, the notice Jones received adequately informed him about what was to take place at the

specially called Council meeting on August 22. Although the notice Jones received did not contain

the word "trial," we hold that he received notice that the Council was going to hold a hearing on

the complaint made against him regarding the alleged intentional violations of the City's waste

discharge ordinance.

Alternatively, we conclude that Jones waived service of a notice of trial because he

made a general appearance before the Council when it was sitting as a court at the August 22

hearing and fully participated in the hearing along with his counsel. See Werner v. Colwell , 909

S.W.2d 866, 869-70 (Tex. 1994) (judgment may be rendered against person not served if that

person waives service by making general appearance before court). Further, he never complained

he had not received notice and never asked for added time to prepare for trial.

Finally, Jones complains that the notices he received were defective because they

were given to him by the City secretary and not Council member Abarr to whom Williams made

the complaint. Jones contends that section 21.002 required Abarr to provide him with a copy of

the complaint and give him notice about a date for a trial.

We disagree with Jones that Council member Abarr was required to personally

provide him with a copy of the complaint and personally give him notice of a date for trial.

Section 21.002 requires that the council member to whom the complaint was given must "cause"

a copy of the complaint to be served on the mayor and notify him about when to appear for a trial.

See § 21.002(f)(2)&(4). We find no error in having the City secretary serve the complaint and

notices on Jones.

Based on the evidence before the district court, we cannot say that the Council acted

illegally, unreasonably or arbitrarily in providing notice to Jones. The first issue is overruled.

Contention That the City Council Failed to Hold a Statutory Trial

In his second issue, Jones contends that the Council failed to hold a statutory trial

on the complaint filed against him as required by section 21.002. Jones contends that the Council

held two Council meetings but these were not the equivalent of a trial. Jones contends that

because the Council did not hold a trial the district court should have declared the Council's

proceedings removing Jones from the office of mayor null and void. We disagree.

The stipulated evidence presented to the district court shows that the Council set

the meeting on August 22 specifically pursuant to section 21.002 of the Local Government Code

to consider allegations that Jones intentionally violated the City's waste discharge ordinance. As

required by section 21.002(g), the Council members selected one member of the Council to

preside over the hearing. Jones appeared at the hearing with his attorney. The City was also

represented by an attorney. Both the City and Jones presented evidence and both parties cross-examined the other's witnesses. Before closing the proceedings and adjourning on August 22, the

Council gave Jones another opportunity to make arrangements to connect to the City's sewer

system and to provide a receipt at the next meeting for connection to the sewer system. The

Council then agreed to table the vote on Jones's guilt or innocence regarding the alleged violations

until the September 3 Council meeting.

At the September 3 Council meeting, the Council asked Jones if his residential

property was connected to the City's sewer system. Jones presented only an application for

connection but informed the Council that he had not paid the required $100 deposit and admitted

that his residence was not connected to the City's sewer system. The Council then, in accordance

with section 21.002(h), voted that Jones was guilty of intentionally violating the City's waste

discharge ordinance.

Although the Council referred to the August 22 meeting as a "hearing" rather than

a trial, we conclude that the actions taken by the Council on August 22 and the vote taken on

September 3 were the equivalent of a trial as required by section 21.002. The second issue is

overruled.

Attempt to Raise a Constitutional Issue

In his third and final issue, Jones contends that the Council's actions in removing

him as mayor violated certain sections of the state and federal constitutions. Jones makes these

contentions without citing any authority or presenting any argument. First he contends that

[t]he removal of [Jones] from the office of Mayor violated the Texas constitution

Article I, Section 19 and Article III, Section 35 in that [Jones] was denied a Trial,

was not give[n] proper notice of proceedings to remove him from office, denied a

legal statement of charges or grounds [for] removal, and denied a hearing on any

charges or grounds for removal from office. Therefore, his removal from office

was arbitrary and unlawful.

Second he contends that

The removal of [Jones] from the office of Mayor violated [the] due process clause

of the Fourteenth Amendment to the United States Constitution in that Mayor

Abraham Jones was denied a Trial, was not give[n] proper notice of proceedings

to remove him from office, denied a legal statement of charges or grounds [for]

removal, and denied a hearing on any charges or grounds for removal from office.

Therefore, his removal from office was arbitrary and unlawful.

When the legislature acts, we presume that it has acted constitutionally. See

Travelers Indem. Co. v. Fuller , 892 S.W.2d 848, 850 (Tex. 1995) (citing Spring Branch Indep.

Sch. Dist. v. Stamos , 695 S.W.2d 556, 558 (Tex.1985)). Therefore, when presenting a

constitutional challenge the burden of proof is on the party challenging constitutionality. Travelers

Indem. Co. , 892 S.W.2d at 850 .

By his contentions, Jones only restates the complaints he raised in his first and

second appellate issues and asserts that the Council's actions violate certain sections of the state

and federal constitutions. In addressing Jones's other appellate issues we determined that Jones

was given a legal statement of charges or grounds for removal, was given proper notice of

proceedings to remove him from office, and received a trial on the grounds for removal. The

Council followed the statutory procedure set out in the Local Government Code section 21.002.

Jones received all of the due process to which he was entitled. The third issue is overruled.

Conclusion

As noted previously, this Court is limited as to what we may review of a section

21.002 mayoral removal proceeding. We may only determine whether a city council exceeded

its lawful authority when removing a mayor from office. Riggins , 93 S.W. at 427 . Consequently,

the most that this Court may evaluate is whether "the charges were duly preferred, a hearing had,

and evidence adduced tending to sustain the charges." Id.

Having carefully considered the record, including all thirteen exhibits submitted to

the district court (which included tapes of the two Council meetings--the testimony of witnesses

who testified at the removal hearing on August 22 and the Council meeting on September 3), we

find no basis for a conclusion that the Council acted arbitrarily or capriciously or that due process

was denied to Mr. Jones. We affirm the district court's judgment.

Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices Kidd and Patterson

Affirmed

Filed: July 29, 1999

Do Not Publish

1. In July 1993, the State of Texas, on behalf of the Texas Water Development Board, filed

suit against the City in Travis County district court. The basis of the State's suit was that the City

was not complying with agreements it made to provide financial information to the State regarding

its waste water system. Among other things, the State sought the appointment of a temporary

receiver for the City. At the time of Jones's intervention, the district court had appointed Hebert

as the City's temporary receiver. The State responded on behalf of the Water Development Board

to Jones's intervention and informed the district court that it was taking no position on the merits

of Jones's claims and requested that any order entered related to the intervention not affect the

pendency of the underlying receivership action.

2. Williams was the client relations manager with ECO Resources, Inc., a company that

specializes in providing professional services regarding water supply and waste water treatment.

The City retained ECO Resources, Inc., to enforce compliance with the City's waste discharge

ordinance.

3. Williams's complaint listed three violations of the City's waste discharge ordinance by Jones

occurring on or about July 3, 1996: (1) he failed to use the public sanitary sewer system when

discharging waste water from his home in violation of section 10(A); (2) he was responsible for

discharges through a building sewer and failed to design or install a connection from the building

sewer to the public sewer in violation of section 14(B); and (3) he discharged waste water from

his residence in violation of section 21 after the date given him for compliance in his notice of

violation.

WP="BR1">

Second he contends that

The removal of [Jones] from the office of Mayor violated [the] due process clause

of the Fourteenth Amendment to the United States Constitution in that Mayor

Abraham Jones was denied a Trial, was not give[n] proper notice of proceedings

to remove him from office, denied a legal statement of charges or grounds [for]

removal, and denied a hearing on any charges or grounds for removal from office.

Therefore, his removal from office was arbitrary and unlawful.

When the legislature acts, we presume that it has acted constitutionally. See

Travelers Indem. Co. v. Fuller , 892 S.W.2d 848, 850 (Tex. 1995) (citing Spring Branch Indep.

Sch. Dist. v. Stamos , 695 S.W.2d 556, 558 (Tex.1985)). Therefore, when presenting a

constitutional challenge the burden of proof is on the party challenging constitutionality. Travelers

Indem. Co. , 892 S.W.2d at 850 .

By his contentions, Jones only restates the complaints he raised in his first and

second appellate issues and asserts that the Council's actions violate certain sections of the state

and federal constitutions. In addressing Jones's other appellate issues we determined that Jones

was given a legal statement of charges or grounds for removal, was given proper notice of

proceedings to remove him from office, and received a trial on the grounds for removal. The

Council followed the statutory procedure set out in the Local Government Code section 21.002.

Jones received all of the due process to which he was entitled. The third issue is overruled.

Conclusion

As noted previously, this Court is limited as to what we may review of a section

21.002 mayoral removal proceeding. We may only determine whether a city council exceeded

its lawful authority when removing a mayor from office. Riggins , 93 S.W. at 427 . Consequently,

the most that this Court may evaluate is whether "the charges were duly preferred, a hearing had,

and evidence adduced tending to sustain the charges." Id.

Having carefully considered the record, including all thirteen exhibits submitted to

the district court (which included tapes of the two Council meetings--the testimony of witnesses

who testified at the removal hearing on August 22 and the Council meeting on September 3), we

find no basis for a conclusion that the Council acted arbitrarily or capriciously or that due process

was denied to Mr. Jones. We affirm the district court's judgment.

Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices Kidd and Patterson

Affirmed

Filed: July 29, 1999

Do Not Publish

1. In July 1993, the State of Texas, on behalf of the Texas Water Development Board, filed

suit against the City in Travis County district court. The basis of the State's suit was that the City

was not complying with agreements it made to provide financial information to the State regarding

its waste water system. Among other things, the State sought the appointment of a temporary

receiver for the City. At the time of Jones's intervention, the district court had appointed Hebert

as the City's temporary receiver. The State responded on behalf of the Water Development Board

to Jones's intervention and informed the distr