City of San Antonio v. Aguilar

• Decision Date: 15 February 1984
• Docket Number: No. 04-83-00401-CV,04-83-00401-CV
• Citation: 670 S.W.2d 681
• Parties: CITY OF SAN ANTONIO, Appellant, v. Ernest A. AGUILAR, et al., Appellees.
• Court: Texas Court of Appeals

Page 681

670 S.W.2d 681

CITY OF SAN ANTONIO, Appellant, v. Ernest A. AGUILAR, et al., Appellees.

No. 04-83-00401-CV.

Court of Appeals of Texas,

San Antonio.

Feb. 15, 1984.

Rehearing Denied March 9, 1984.

Writ filed April 6, 1984.

Crawford B. Reeder, San Antonio, for appellant.

Harry Nass, San Antonio, for appellees.

Before ESQUIVEL, BUTTS and CANTU, JJ.

OPINION

BUTTS, Justice.

Appellees, emergency medical technicians employed by the City of San Antonio, filed this motion to dismiss for want of jurisdiction the appeal of the City of San Antonio. Judgment awarding the emergency medical technicians (EMTs) overtime back-pay was entered on June 15, 1983. The City of San Antonio filed its written notice of appeal on June 27, 1983. TEX.R.CIV.P. 356(c). The EMTs then filed this motion to dismiss for want of jurisdiction. We deny the motion.

EMTs contend the City's appeal is invalid because (1) the City Council did not authorize the city attorney to pursue the appeal, and (2) the city council violated the Open Meetings Act. TEX.REV.CIV.STAT.ANN. art. 6252-17 (Vernon Supp.1982-1983).

The undisputed fact is that the city council neither passed an ordinance nor a formal resolution authorizing the appeal. ¹ The city manager, Lou Fox, executed an affidavit:

I am familiar, in a general way, with the case of Aguilar and Acquart, et al., (EMTs) against the City for overtime pay which they claim is due them from the City. After the state Supreme Court decided a similar prior case partly against the City last fall, the City Attorney discussed the Aguilar and Acquart case with me and advised me that since there were about one hundred seventy (170) EMTs in that case it involved a great deal of money. She advised that there were two legal issues in the Acquart and Aguilar case that had not been presented to the courts in the first case and that these issues should be resolved by the courts. I felt that the Council should be advised of this matter and I did so advise the Council, before the case was tried last April. I advised them again after the judgment had gone against the City and both the City Attorney and I recommended that the case be appealed. No formal vote of the City Council was taken at this latter time but there was a general assent with the exception of one Councilman who voiced the opinion that no appeal should be taken. There were more than six (6) Councilmen present. ² I told them that the case would be appealed and I told the City Attorney, who was present, to go ahead with the appeal.

Neither the minutes of the city council meetings from June 16, 1983 to July 14 1983 nor the certified copies of the agenda of the city council meetings from April 4, 1983 to August 4, 1983 refers to any such discussion.

We take judicial notice of the charter of the City of San Antonio. Cone v. Lubbock, 431 S.W.2d 639, 647 (Tex.Civ.App.--Amarillo 1968, writ ref'd n.r.e.). The City of San Antonio constitutes a municipal corporation. § 1. Pursuant to TEX. CONST. art. XI, § 5, this municipal corporation has the powers enumerated in the charter, provided those powers do not conflict with nor are prohibited by Texas law. By its charter, the City of San Antonio has adopted a council-manager government. § 2. The governmental or legislative functions are assigned to the city council; the proprietary or ministerial functions, to the city manager. § 2; § 46(3); see Ostrom v. San Antonio, 94 Tex. 523, 62 S.W. 909, 910 (1901); see also Seltenreich v. Fairbanks, 103 F.Supp. 319 (D.Alaska 1952), aff'd, 211 F.2d 83 (9th Cir.1954), cert. denied, 348 U.S. 887, 75 S.Ct. 206, 99 L.Ed. 697 (1954); Visone v. Reilly, 80 N.J.Super. 494, 194 A.2d 248, 250 (1963); Welch v. City of Long Beach, 109 Cal.App.2d 561, 241 P.2d 26, 28 (1952).

It is established in Texas that a municipal activity may be governmental or proprietary:

It is well settled that activities which are carried on by a municipality, pursuant to state requirement, in discharge of the state's obligation to provide for the health, safety or general welfare of the public generally, or which are voluntarily assumed for the benefit of the public generally rather than for the benefit of its own citizens, are performed in a governmental capacity and as a governmental function. [Citations omitted.] On the other hand it is equally well settled that all other municipal activities are carried on in a private corporate capacity and are proprietary functions. [Citations omitted.]

Cone, supra at 643.

Frequently, governmental and proprietary functions dovetail into each other to such an extent that it is difficult to distinguish one from the other. Trenton v. New Jersey, 262 U.S. 182, 188-91, 43 S.Ct. 534, 537-38, 67 L.Ed. 937, 941-43 (1923). The decision whether a service by a city is proprietary or governmental is a judicial, and not a legislative function. Cone, supra at 643-44.

All council meetings are to be open to the public. § 11. The council may act by resolution, except where the charter requires an ordinance. § 18. As chief administrator of the city, the city manager controls the legal department, one of the administrative departments of city government. § 50. The city attorney heads the legal department and is charged with the following responsibilities:

Sec. 54. The city attorney shall be the chief legal adviser of all offices, departments and agencies and of all officers and employees of the city in matters relating to their official powers and duties. He shall represent the city in all legal proceedings. He shall perform all services incident to his position as may be required by statute, by this Charter or by ordinance. He shall draft all proposed ordinances granting franchises and shall pass upon all papers, documents, contracts and other instruments in which the city may be interested. [Emphasis ours.]

AUTHORITY OF CITY ATTORNEY

We will examine the nature of the authority granted the city attorney by the charter. It is obvious an agency-principal relationship exists between the city attorney (agent) and the city (principal). Portnow v. Berg, 593 S.W.2d 843, 845 (Tex.Civ.App.--Houston [1st Dist.] 1980, no writ). Express authority exists where the principal has made it clear to the agent that he wants the act under scrutiny to be done. H. Reuschlein & W. Gregory, AGENCY AND PARTNERSHIP, § 14 (1979); implied authority exists where there is no proof of express authority, but appearances justify a finding that in some manner the agent was authorized to do what he did; in other words, there is circumstantial proof of actual authority. Id. at § 15.

Rule 12 of the Texas Rules of Civil Procedure requires a party believing that a suit is being prosecuted or defended without authority by an attorney to move that such attorney not be permitted to appear in the cause before the parties have announced ready for trial. At the hearing the burden is upon the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party. Such a motion may not be raised for the first time on appeal. Valley International Properties, Inc. v. Brownsville Savings and Loan Association, 581 S.W.2d 222, 226 (Tex.Civ.App.--Corpus Christi 1979, no writ); TEX.R.CIV.P. 12.

The EMTs could have raised the question of the city attorney's authority to defend this suit by motion before the trial of the case. However, they now raise lack of authority only as to one aspect of the case, the appeal. "Legal proceeding" includes all proceedings authorized or sanctioned by law, and brought or instituted in a court of justice or legal tribunal for the requiring of a right or the enforcement of a remedy. BLACK'S LAW DICTIONARY, 807 (rev. 5th ed. 1979). An appeal is a step in a judicial proceeding. Id. at 88-89. The term "appeal" can clearly be subsumed under "legal proceedings" in § 54. Moreover, the command that the city attorney shall perform "all services incident to his position" is a broad grant of implied authority. See Florida Parole and Probation Commission v. Thomas, 364 So.2d 480, 481 (Fla.App.1978). We hold the city attorney possessed the implied authority to pursue this appeal.

PRESUMPTION OF AUTHORITY

Not only does the city attorney have implied authority to pursue the appeal, but there is a presumption that when a city attorney brings suit on behalf of a city, the suit is authorized, absent a sworn plea to the contrary. O'Connor v. Laredo, 167 S.W. 1091, 1092 (Tex.Civ.App.--San Antonio 1914, no writ). See also Breen v. Beto, 421 F.2d 945, 949 (5th Cir.1970); Kelly v. Murphy, 630 S.W.2d 759, 761 (Tex.Civ.App.--Houston [1st Dist.] 1982, writ ref'd n.r.e.); West v. City National Bank of Birmingham, 597 S.W.2d 461, 463 (Tex.Civ.App.--Beaumont 1980, no writ); Hidalgo County Drainage District No. 1 v. Magnolia Petroleum Co., 47 S.W.2d 875, 876 (Tex.Civ.App.--San Antonio 1932, writ ref'd).

Further, an attorney who has conducted a case in the trial court is presumed to have authority to pursue an appeal, although this presumption can be rebutted. Stephenson v. Chappell, 12 Tex.Civ.App. 296, 33 S.W. 880 (1896, no writ); 7 TEX.JUR.3d Attorneys at Law § 63 (1980).

An attorney is also presumed to have authority to file notice of appeal, absent evidence to the contrary. Real Estate Land Title and Trust Co. v. General Missionary Society of the German Baptist Churches of North America, 111 S.W.2d 1196, 1197 (Tex.Civ.App.--Fort Worth 1937, no writ) (where attorney executes appeal bond for corporation represented at trial, corporation is bound if it does not object). See also Harrison v. Barngrover, 118 S.W.2d 415, 419 (Tex.Civ.App.--Beaumont 1938, writ ref'd) (appellant's attorney has authority to make appellant party to the execution of supersedeas bond).

Appellees therefore have the burden of proof to rebut the presumption that the city attorney had authority to pursue this appeal. They heavily rely on Hager v. State, 446 S.W.2d 43 (Tex.Civ.App.--Beaumont 1969, writ ref'd...