Bradford v. Edelstein

• Decision Date: 05 February 1979
• Docket Number: Civ. A. No. B-77-272.
• Citation: 467 F. Supp. 1361
• Parties: Frank BRADFORD, on behalf of himself and all others similarly situated, v. Ruben EDELSTEIN, Individually and in his capacity as Mayor of the City of Brownsville and ex officio member of the Public Utilities Board of the City of Brownsville, Israel Lizka, Mario Yzaguirre, Marcelo Hernandez, Kermit Cromack, and Virgil Fredieu, Individually and in their capacities as board members of the Public Utilities Board of the City of Brownsville, and Valois Pagan, general manager of the Public Utilities Board of the City of Brownsville.
• Court: U.S. District Court — Southern District of Texas

467 F. Supp. 1361

Frank BRADFORD, on behalf of himself and all others similarly situated, v. Ruben EDELSTEIN, Individually and in his capacity as Mayor of the City of Brownsville and ex officio member of the Public Utilities Board of the City of Brownsville, Israel Lizka, Mario Yzaguirre, Marcelo Hernandez, Kermit Cromack, and Virgil Fredieu, Individually and in their capacities as board members of the Public Utilities Board of the City of Brownsville, and Valois Pagan, general manager of the Public Utilities Board of the City of Brownsville.

Civ. A. No. B-77-272.

United States District Court, S. D. Texas, Brownsville Division.

February 5, 1979.

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Texas Rural Legal Aid, Inc., Gerald A. Garcia, Brownsville, Tex., for plaintiff.

Gerald R. Zwerneman and O. B. Garcia, Brownsville, Tex., for defendants.

MEMORANDUM AND ORDER

GARZA, Chief Judge.

This is a civil action seeking compensatory, declaratory and injunctive relief. The lawsuit was brought under the provisions of 42 U.S.C. § 1983,¹ and this Court's jurisdiction is based on 28 U.S.C. § 1343(3).² The Complaint was filed on November 14, 1977, alleging that the Defendants had acted under color of law to deprive the Plaintiff (and the class he seeks to represent) of due process of law by terminating utility services used by the Plaintiff without advance notice and without an opportunity to contest the termination. Also submitted on November 14, 1977, was an application for a temporary restraining order and a brief in support thereof, along with motions requesting a preliminary injunction and class certification.

On that same day, this Court convened a hearing on the application for a temporary restraining order. After some preliminary arguments, counsel for the Defendants were given an hour to prepare for further discussion as to whether the Public Utilities Board (hereinafter referred to as PUB) had any type of system for giving proper notice to a customer prior to cutting off his utilities. Upon resumption of the hearing, evidence and additional arguments were presented to the Court. As a result of the hearing, the Defendants agreed to a temporary restraining order, and this Court ordered the Defendants to reconnect the Plaintiff's utilities upon Plaintiff's payment of his last bill.

On November 15, 1977, the Court signed an agreed-to Temporary Restraining Order submitted by the parties. In that Order, it was noted that the Defendants had terminated the Plaintiff's water and electricity service and had refused to reconnect the services unless the Plaintiff paid charges amounting to $102.00, even though the Plaintiff owed only $32.00 for service from October 2 to November 8, 1977. It was further noted in the Order that the services had been terminated without notice and without opportunity to be heard, and that the Plaintiff had been without those services since November 8, 1977. Finding that the Plaintiff would suffer immediate and irreparable injury before a hearing could be held on his Motion for a Preliminary Injunction, and finding that the termination of such essential services without notice and opportunity to be heard might be violative of the Plaintiff's constitutional rights, the Court ordered the Defendants to immediately reinstate Plaintiff's utilities upon his payment of the amount owed to the PUB for actual services used by the Plaintiff, and temporarily restrained the Defendants from terminating utility services to their customers without adequate notice and opportunity to be heard. Finally, it was agreed that the Temporary Restraining Order would be continued until the parties notified the Court otherwise.

On September 8, 1978, the parties filed the following Stipulations of Fact:

1) Plaintiff, Mr. Frank Bradford, is a 77 year old resident of Brownsville, Cameron County, Texas. His address is 125 W. Fronton Street (rear), Brownsville, Texas.

2) Frank Bradford's account number with the PUB until November 8, 1977, was XXX-XXXXX-X; his current account number is XXXX-XXXXX-X;

3) On or about November 2, 1977, Mr. Bradford paid his utilities bill with a personal check drawn on a bank account which had been closed since April 16, 1975; the check therefore bounced. This was the only time Mr. Bradford had paid his bill with a bad check, and he had previously paid all his utility bills on time.

4) From August 30, 1977, up to and including November 8, 1977, there was in effect a PUB written policy to terminate without notice the utility services of all customers who paid their bills with a bad check. This policy was attached to the stipulations and labeled Exhibit 1; a copy of this exhibit has been attached to this Memorandum and Order as Appendix A.

5) As a result of the above policy, Mr. Bradford's utility services (water and electricity) were terminated, without prior notice, on November 8, 1977.

6) The electricity and water utilities were disconnected from Mr. Bradford's residence on November 8, 1977, pursuant to the authority of the PUB manager's memorandum of August 30, 1977, attached to the stipulations as Exhibit 1 Appendix A.

7) As far as the PUB personnel knew, there was no danger of any kind which existed on or about November 8, 1977, which would have necessitated termination of utility services to Mr. Bradford without giving notice to him.

8) Utility services to Mr. Bradford were not reconnected until November 14, 1977, when this Court ordered Defendants to reconnect the services even though Mr. Bradford's check had not been cleared.

9) Until the PUB policy was changed on November 21, 1977, all customers who paid their utilities bill with a bad check had their utility services disconnected without prior notice pursuant to the memorandum of August 30, 1977, attached to the stipulations as Exhibit 1 Appendix A.

10) Pursuant to PUB policies effective November 21, 1977, all persons who pay their utilities bill with a bad check now receive 24 hours' notice that their utility service will be disconnected for failure to comply with the notice that their check was returned by the bank. Said notice is given by placing a red tag on the customer's door by a PUB serviceman. A copy of the red tag notice was attached to the stipulations as Exhibit 2. A copy of this exhibit is attached to this Memorandum and Order as Appendix B.

11) At the time this suit was filed, and at the present time, PUB customers receive their monthly bills by mail. A true and correct copy of the bill format sent to PUB customers was attached to the stipulations as Exhibit 3. A copy of this exhibit is attached to this Memorandum and Order as Appendix C.

12) A customer's utility bill is due and must be paid by the customer approximately 14 to 16 days after the bill is mailed by PUB.

13) If a customer's bill has not been paid by the due date, a reminder notice is mailed to the customer within two days. A true and correct copy of the reminder notice mailed to customers now and at the time this suit was filed was attached to the stipulations as Exhibit 4. A copy of this exhibit is attached to this Memorandum and Order as Appendix D.

14) If a customer has not paid his bill within five days after the due date, the PUB will issue collection-disconnect orders to its servicemen. A true and correct copy of the collection-disconnect order was attached to the stipulations as Exhibit 5. A copy of this exhibit is attached to this Memorandum and Order as Appendix E.

15) The PUB servicemen will disconnect utility services pursuant to a collection-disconnect order unless the customer pays the amount outstanding in his account at the time the serviceman arrives to disconnect the utilities at the customer's house.

16) The PUB is an agency of the City of Brownsville and is operated under the following authority: Texas Revised Civil Statutes arts. 1165, et seq. and art. 1446c; the Home Rule Charter of the City of Brownsville; and the Code of Ordinances, §§ 34 et seq.

17) For the six-month period beginning September, 1977, and continuing through February, 1978, the PUB received approximately 519 bad checks as payment for customers' utility bills.

18) For the three-month period beginning September, 1977, and continuing through November, 1977, the PUB received approximately 306 bad checks from its customers in payment for utility bills.

19) In the six-month period from June, 1977, through November, 1977, the PUB registered approximately 13,724 collection-disconnect notices to be acted upon. This figure represents an approximate average of 2,287 disconnect actions per month for nonpayment of customers' utility bills.

20) The notice of proposed utility disconnection presently issued by the PUB to its customers was attached to the stipulations as Exhibits 2, 3, and 4 Appendices B, C, D and E.

21) The procedures and policies used on or about November 8, 1977, to bill customers and/or disconnect utility services are attached to the stipulations as Exhibits 6 and 7. Copies of these exhibits are attached to this Memorandum and Order as Appendices F and G.

22) The rules and regulations presently governing PUB's electric service collection and disconnect policy were attached to the stipulations as Exhibit 8. A copy of this exhibit is attached to this Memorandum and Order as Appendix H.

23) Mr. Bradford closed his checking account at National Bank of Commerce, in Brownsville, on April 16, 1975.

24) Mr. Bradford did not open another checking account in any bank in Brownsville, Texas, until February 2, 1976, at which time he opened a checking account at First National Bank.

25) Mr. Bradford had no checking account in Brownsville between April 16, 1975, when he closed his account in National Bank of Commerce, and February 2, 1976, when he opened a checking account at First National Bank at Brownsville. Between these two dates, he kept his money at home or in a bank in Lufkin, Texas.

26) Mr. Bradford drew...