City of San Antonio v. Aguilar, No. 04-83-00401-CV

CourtCourt of Appeals of Texas
Writing for the CourtBUTTS
Citation670 S.W.2d 681
PartiesCITY OF SAN ANTONIO, Appellant, v. Ernest A. AGUILAR, et al., Appellees.
Docket NumberNo. 04-83-00401-CV
Decision Date15 February 1984

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.

Page 682

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,

Page 683

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

Page 684

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...

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26 practice notes
  • Pitman v. Lightfoot, No. 04-93-00480-CV
    • United States
    • Court of Appeals of Texas
    • August 7, 1996
    ...evidence to support the jury's implied finding that Lieb was the agent of the Control Group. See City of San Antonio v. Aguilar, 670 S.W.2d 681, 683 (Tex.App.--San Antonio 1984, writ dism'd) (implied authority exists when appearances indicate that "in some manner the agent was authorized to......
  • In re IFS Financial Corporation, Case No: 02-39553 (Bankr. S.D. Tex. 7/15/2008), Case No: 02-39553.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • July 15, 2008
    ...the principal has made it clear to the agent that he wants the act under scrutiny to be done.'") (quoting City of San Antonio v. Aguilar, 670 S.W.2d 681, 683 (Tex. App. 4 Dist. 1984)). There are no agent acts more clearly binding on the principal than acts taken pursuant to express authorit......
  • Cool Homes, Inc. v. Fairbanks North Star Borough, Nos. S-3995
    • United States
    • Supreme Court of Alaska (US)
    • October 29, 1993
    ...candid discussion of the facts and litigation strategies. Channel 10, 215 N.W.2d at 825-26. See also City of San Antonio v. Aguilar, 670 S.W.2d 681, 686 (Tex.App.1984) (holding that a conference on decision to appeal deserves confidentiality); Hui Malama Aina O Ko'olau v. Pacarro, 4 Haw.App......
  • Indel Food Prods., Inc. v. Dodson Int'l Parts, Inc., EP-20-CV-98-KC
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • September 21, 2021
    ...scrutiny to be done." Pasant v. Jackson Nat'l Life Ins. Co. , 52 F.3d 94, 97 (5th Cir. 1995) (quoting City of San Antonio v. Aguilar , 670 S.W.2d 681, 683 (Tex. App. 1984) ). Actual implied authority exists when there is some indication from the principal to the agent that the agent has aut......
  • Request a trial to view additional results
26 cases
  • Pitman v. Lightfoot, No. 04-93-00480-CV
    • United States
    • Court of Appeals of Texas
    • August 7, 1996
    ...evidence to support the jury's implied finding that Lieb was the agent of the Control Group. See City of San Antonio v. Aguilar, 670 S.W.2d 681, 683 (Tex.App.--San Antonio 1984, writ dism'd) (implied authority exists when appearances indicate that "in some manner the agent was authorized to......
  • In re IFS Financial Corporation, Case No: 02-39553 (Bankr. S.D. Tex. 7/15/2008), Case No: 02-39553.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • July 15, 2008
    ...the principal has made it clear to the agent that he wants the act under scrutiny to be done.'") (quoting City of San Antonio v. Aguilar, 670 S.W.2d 681, 683 (Tex. App. 4 Dist. 1984)). There are no agent acts more clearly binding on the principal than acts taken pursuant to express authorit......
  • Cool Homes, Inc. v. Fairbanks North Star Borough, Nos. S-3995
    • United States
    • Supreme Court of Alaska (US)
    • October 29, 1993
    ...candid discussion of the facts and litigation strategies. Channel 10, 215 N.W.2d at 825-26. See also City of San Antonio v. Aguilar, 670 S.W.2d 681, 686 (Tex.App.1984) (holding that a conference on decision to appeal deserves confidentiality); Hui Malama Aina O Ko'olau v. Pacarro, 4 Haw.App......
  • Indel Food Prods., Inc. v. Dodson Int'l Parts, Inc., EP-20-CV-98-KC
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • September 21, 2021
    ...scrutiny to be done." Pasant v. Jackson Nat'l Life Ins. Co. , 52 F.3d 94, 97 (5th Cir. 1995) (quoting City of San Antonio v. Aguilar , 670 S.W.2d 681, 683 (Tex. App. 1984) ). Actual implied authority exists when there is some indication from the principal to the agent that the agent has aut......
  • Request a trial to view additional results

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