Aguilar v. City of El Paso, 6858

• Decision Date: 23 January 1980
• Docket Number: No. 6858,6858
• Citation: 594 S.W.2d 191
• Parties: Josefina AGUILAR et al., Appellants, v. The CITY OF EL PASO et al., Appellees.
• Court: Texas Court of Appeals

Page 191

594 S.W.2d 191

Josefina AGUILAR et al., Appellants, v. The CITY OF EL PASO et al., Appellees.

No. 6858.

Court of Civil Appeals of Texas, El Paso.

Jan. 23, 1980.

Rehearing Denied Feb. 20, 1980.

Albert Armendariz, Jr., El Paso, for appellants.

Ralph Wade Adkins, City Atty., David J. LaBrec, 1st Asst. City Atty., Vicki L. Byrnes, Asst. City Atty., Scott, Hulse, Marshall & Feuille, James T. McNutt, Jr., El Paso, for appellees.

OPINION

WARD, Justice.

Eleven toll collectors on the two international bridges between the cities of El Paso, Texas, and Juarez, Mexico, contended that they were employed by the City of El Paso, and filed this suit against the City and others to establish their positions and benefits as members of the classified service in the civil service system of the City of El Paso. The main point of the case is whether these employees automatically became City employees when the City created a mass transit system and purchased the two bridges, or whether these employees could legally be employed by an independent contractor operating under a City franchise. Trial was to the court, sitting without a jury, and judgment was entered which denied the toll collectors all relief which they sought. Findings of fact and conclusions of law were neither requested nor filed. We affirm.

Prior to 1977, Plaintiffs were employed as toll collectors by El Paso City Lines, Inc., a private corporation, and collected tolls from pedestrian and motor vehicle traffic utilizing the northern one-half of two international bridges connecting the City of El Paso and the City of Juarez, Mexico. El Paso City Lines, Inc., owned the northern one-half of the two bridges and operated a bus line in the City of El Paso. In January, 1977, the City of El Paso purchased certain of the assets of El Paso City Lines, Inc., including the buses, facilities, equipment and northern one-half of the two international bridges. At the same time, the City purchased certain assets from two other bus lines which had operated under franchises granted by the City. The corporate entities of the companies were not purchased.

The City had previously secured bids from various transit management specialists to manage the City's proposed mass transit system, and the proposal of Wesley A. Williams was accepted. Acting under the proposal, Transit Services, Inc. was created in December, 1976, with Williams as the sole stockholder, President and General Manager of that corporation. Under the management agreement, which was then made with the City, Transit Services agreed to provide the management and personnel necessary to operate the mass transit system owned by the City, and to collect tolls on the two international bridges. In January, 1977, the City took title to the two bridges, and at the same time Transit Services commenced its contractual management operations over the bridges and the mass transportation system. It employed thirteen toll collectors, which included the eleven Plaintiffs as well as some 190 other employees of the transportation systems whose assets had been purchased by the City.

Transit Services has operated under a managing agreement that is commonly known as a "cost plus fixed fee basis contract." This means that the City reimburses Transit Services for all costs, including wages, incurred in fulfilling its obligations under the agreement. The agreement provides that Transit Services will provide the advisory and management services to operate the City's public transit system, including the two City-owned international toll bridges, and Transit Services, not the City, under its contract, exercises exclusive and complete control over the Plaintiff toll collectors in all respects. In this connection, the Defendants' proof was to the effect that Transit Services hired or fired all the employees, paid their wages, withheld for Federal income tax and all other deductions, and had exclusive control as to all other work activities. The Plaintiffs are neither carried on the City's payroll nor maintained on the City's personnel roster.

The Plaintiffs maintain that Section 10G of the El Paso City Charter sustains their claim as City employees. That Section is quoted in part as follows:

Whenever the City shall purchase or acquire an existing privately owned utility, all the employees thereof shall automatically, without preliminary or performance tests, be admitted to the benefits and protection of the City Service provisions of the City Charter and the seniority rights of such employees as they existed shall be preserved. . . .

In considering the Plaintiffs' arguments, we first note the lack of findings of fact and conclusions of law. In this situation, all questions of fact are presumed found in support of the judgment and the judgment of the trial court must be upheld on any legal theory that find...