City of Brownsville v. Brownsville GMS, Ltd.

Decision Date06 May 2021
Docket NumberNUMBER 13-19-00311-CV
CourtTexas Court of Appeals

On appeal from the 445th District Court of Cameron County, Texas.


Before Justices Benavides, Hinojosa, and Tijerina

Dissenting Memorandum Opinion by Justice Benavides

I respectfully dissent because the majority incorrectly applies the standard of review for a temporary injunction and because the majority erroneously interprets statutory causes of action provided by the Texas Local Government Code and the Texas Government Code, thereby rendering them meaningless. See TEX. LOC. GOV'T CODE ANN. § 252.061 (providing a cause of action for statutory violations regarding the purchasing and contracting authority of municipalities); TEX. GOV'T CODE ANN. § 551.142(a) (providing a cause of action for statutory violations regarding open meeting requirements).

In contrast to the majority opinion, I would affirm the temporary injunction in part and reverse and remand in part as further discussed below. In short, I believe there is sufficient evidence to conclude that GMS had a probable right to recover on its causes of action for violations of Chapter 252 of the local government code and the Texas Open Meetings Act (TOMA). Because I have reached this conclusion, I review, of necessity, the five issues raised by appellants that are not addressed by the majority opinion. See TEX. R. APP. P. 47.1.


The majority opinion's presentation of the background for this appeal is accurate but limited insofar as it fails to include a complete discussion of the evidence supporting the trial court's exercise of discretion in granting the temporary injunction. The majority further omits the factual and procedural background relevant to the five issues it does not address.

Appellants raise seven issues through which they assert that the assigned judge erred in granting a temporary injunction because: (1) they had objected to the assigned judge, who was thus disqualified from presiding over the case and entering the temporary injunction; (2) the underlying temporary restraining order was improperly entered; (3) GMS failed to establish the necessary elements to obtain a temporary injunction; (4) thetemporary injunction creates an undue hardship; (5) the relief granted exceeds the relief sought by GMS; (6) GMS had unclean hands; and (7) the injunctive relief order is defective. The majority performs a truncated review of the issue on which its opinion turns, that is, appellants' third issue alleging that GMS failed to establish the necessary elements to obtain a temporary injunction. Because I believe that review is incomplete, I provide a separate summation of the factual and procedural background relevant to the third issue.

On May 6, 2019, GMS filed "Plaintiff's Verified Original Petition and Application for Temporary Restraining Order and Temporary Injunction." In this pleading, GMS contended that the City committed multiple violations of a competitive procurement process under Chapter 252 of the Texas Local Government Code and violated TOMA. See TEX. LOC. GOV'T CODE ANN. §§ 252.001-.063 (delineating the purchasing and contracting authority of municipalities); TEX. GOV'T CODE ANN. §§ 551.001-.146 (codifying TOMA). GMS, which had provided commercial and industrial waste services to the City for numerous years, argued that the City's bidding and procurement process for a contract cycle was fatally flawed and resulted in the City's publication of GMS's confidential, proprietary information and the attempted award of a contract for these services to one of GMS's competitors. GMS sought a temporary restraining order and a temporary injunction.

That same day, the trial court granted GMS's application for a temporary restraining order in an ex parte proceeding. The court's order granting GMS's application provided, inter alia, that appellants were (1) prohibited from taking any action to interfere with or terminate GMS's existing commercial and industrial waste collection contract withthe City of Brownsville; (2) prohibited from taking any action to award or execute the City of Brownsville's commercial and industrial waste collection contract to or with Republic Services, Inc. (Republic), Redfish Recycling (Redfish), or any third party; (3) prohibited from performing any contract with Republic, Redfish, or with any third party for commercial and industrial waste collection; (4) ordered to produce documents and respond to the expedited discovery requests attached as exhibits to GMS's petition and served by GMS by May 13, 2019; and (5) ordered to appear for depositions to occur on or before May 17, 2019. The order sets GMS's application for temporary injunction to be heard before an assigned judge.

On May 24 and May 30, 2019, the assigned judge held evidentiary hearings on GMS's request for injunctive relief. The trial court heard testimony from: (1) Roberto Trevino, the manager and partial owner of GMS, (2) Roberto Luna, the director of purchasing and contract services for the City, (3) Jose Francisco Perez, the assistant director of the purchasing department for the City, and (4) commissioner De Leon. The following comprises a summary of the events giving rise to this lawsuit.

At the time of the hearings, GMS had provided commercial and industrial waste services to the City for approximately thirty years pursuant to request for proposal (RFP) processes taken under the procurement provisions of Chapter 252 of the Texas Local Government Code. See TEX. LOC. GOV'T CODE ANN. §§ 252.001-.063. In 2011, the City and GMS executed a five-year contract which expired in 2016. In 2016, when the contract expired, GMS and the City agreed to extend the contract on a month-to-month basis while the City instituted a new RFP process.

The City held a 2016 RFP process, and GMS, Redfish, and Republic submitted proposals. Pursuant to the 2016 RFP process, an evaluation committee ranked GMS's proposal the highest, so the City's management recommended that the City commissioners sign a contract with GMS; however, after tabling the award of the contract to GMS on two separate occasions, the City cancelled the RFP process and rejected all three proposals. At the hearing in this case, the City's attorney argued that the City did not have a ministerial duty to accept GMS's proposal, that it had the authority to reject all proposals under Chapter 252, and that it "has discretion to decide what's in the best interest of its waste management and to negotiate terms . . . ." After the 2016 RFP process failed, GMS continued providing commercial and industrial waste services to the City on a month-to-month basis under the 2011 contract terms.

Trevino provided specific testimony about GMS's participation in the 2016 RFP process. According to Trevino, the City asked GMS to continue providing services to the City through a six-month extension to enable the City to institute the process. The original deadline for this RFP was August 3, 2016, but that deadline was extended by the City on several occasions. The 2016 RFP states, under "applicable law," that it is a procurement process within § 252.042 of the local government code. Trevino testified that GMS relied on the fact that it was a competitive procurement process under Chapter 252 when it submitted its proposal. He further testified that, under the process, GMS was guaranteed that its bid would be confidential, and that its information would not be made public unless it was awarded the City's contract. The "proposal evaluation and selection" portion of this RFP allocates an "added value" score of twenty percent. Trevino testified that the "addedvalue" provided by GMS to the City included special clean-up activities, community events, and recycling opportunities.

Trevino testified that he was told that GMS had the successful proposal for the 2016 RFP, and that he began negotiating a new contract with, inter alia, Luna as the City's purchasing director. Trevino understood that they had reached an agreement regarding the terms of a contract. Trevino attended the December 13, 2016 commissioner's meeting where the GMS contract proposal, including its bidding information, was presented, along with its confidential pricing, in public open session. The commission voted to table the GMS contract proposal. Trevino subsequently attended the January 17, 2017 commissioner's meeting where De Leon stated that the GMS proposal was not sufficient and stated that he wanted to see the contract. The GMS proposal was then tabled a second time.

Before the March 7, 2017 commissioner's meeting, Luna sent GMS the contract, and Trevino testified that he signed it. At the commissioner's meeting, Luna was supposed to present the signed contract to the commissioners, but before that happened, De Leon moved to reject all the proposals, including the proposal from GMS, and that motion passed. At the time, there was no discussion regarding the rationale for that decision.

Luna drafted the 2016 RFP and specifically described its process. He testified that the 2016 RFP, including the proposal from GMS, was rejected after being tabled twice. According to Luna, GMS was the highest ranked firm for the 2016 RFP process, second was Republic, and third was Redfish. According to Luna, an independent evaluation committee considered and ranked the proposals. Ultimately, the evaluation committeenegotiated with GMS, presented a contract to GMS, and GMS signed that contract. In 2016, Luna thought that the RFP was a routine matter, and that the GMS contract would be approved. Luna stated that he presented the contract and a recommendation to proceed with it to the commission at its meeting in December 2016....

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