City, De Leon ask judge to toss waste-removal contract lawsuit - Brownsville Herald: Local News

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City, De Leon ask judge to toss waste-removal contract lawsuit

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Posted: Sunday, June 23, 2019 9:37 pm

The City of Brownsville has appealed a temporary injunction ruling against it in a civil dispute over a lucrative waste-removal contract.

On May 30, visiting Judge Robert C. Pate ordered the temporary injunction after hearing testimony during a day-long hearing in a lawsuit brought by Brownsville GMS against the city, Mayor Tony Martinez, Commissioners Rose M. Z. Gowen, Ricardo Longoria Jr., Joel Munguia, Ben Neece and Jessica Tetreau-Kalifa in their official capacities, and against former Commissioner Cesar De Leon in his individual capacity.

Pate’s order prevents the City Commission from taking any new proposals for waste-disposal services and stopped the City Commission from awarding the contract to Republic Services until the civil action between the parties concludes.

Court records indicate the 13th Court of Appeals has acknowledged the city’s appeal last week.

The City of Brownsville and the commissioners named in the lawsuit also filed a motion last week seeking to have the lawsuit dismissed. De Leon also filed a motion that aims to have Brownsville GMS’ claims against him dismissed.

Brownsville GMS accuses the City Commission, the City and De Leon of violating the Texas Open Meetings Act when it rejected Brownsville GMS’ 2016 bid for a commercial and industrial waste collection contract and awarding it to Republic Services on April 16.

The City, City Commission and De Leon deny the accusations, but Pate, the visiting judge, remarked during the May 30 hearing that the defendants did violate the Texas Open Meetings Act and ordered the City Commission, the city secretary and the mayor to take a course on the law from the Texas Secretary of State’s website.

Court records indicate they completed the course, which is required by law for officials elected to office.

On Friday, attorneys representing the city, the mayor and the city commissioners filed a plea to jurisdiction, arguing the 445th state District Court doesn’t have jurisdiction to hear the case because the City is immune from Brownsville GMS’ claims.

That court documents also contends that the City Commission did not violate the Texas Open Meetings Act when it rescinded the potential contract with Brownsville GMS and rejected all proposals submitted while directing City Manager Noel Bernal to negotiate a contract directly with Republic Services instead of allowing companies to bid.

“All three items were lawfully approved in open session under an appropriately posted agenda item,” the motion states.

For his part, De Leon said Brownsville GMS can’t sue him because the company’s complaints against him happened while he was a sitting city commissioner.

“Plaintiff Brownsville GMS, Ltd., (GMS) asserted claims against Defendant De Leon individually alleging tortuous interference with prospective business relations and malice for actions allegedly taken in the general scope of his duties as a City Commissioner,” the motion to dismiss states. “The election of remedies provisions of the Texas Tort Claims Act provides for dismissal of GMS’ tort claims against De Leon because suit is based on actions taken within the general scope of his duties regarding the same subject matter.”

Brownsville GMS alleges that De Leon intentionally interfered with the request for proposal process and the contract because it did not donate to his campaign.

“I’m going to tell you one thing (inaudible) $10,000 contract and I see it man. I saw the one with GMS (inaudible) I see and how it is. GMS didn’t donate money to me. But they gave Charlie $15,000. Do You think one doesn’t find out? Do you think that the people doesn’t find out? Do you think that the people doesn’t question it,” the lawsuit quotes De Leon as saying on a recording.

That audio is believed to have been recorded by former fire chief Carlos Elizondo, who has pleaded not guilty to charges of theft and computer security breach levied in two indictments.

De Leon’s attorney, J. Arnold Aguilar, said during the May 30 hearing that the recording, which was apparently made at a ranch while people were drinking, may have been doctored in Matamoros.

During that hearing, De Leon testified that he did recall making those comments, as well as testifying that he never had any prejudice or bias toward Brownsville GMS.

Aguilar called the comments on the recording hearsay.

“It’s hearsay,” Aguilar told Pate while De Leon was on the stand. “This witness could not attest to certainty that that was his voice or that the statements being made were his.”

Hearings over the city and De Leon’s motions are scheduled for Aug. 13, court records indicate.

mreagan@brownsvilleherald.com

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