www.elpasobar.comApril/May 2012The Law West of the PecosThe John F. Cookv. Tom BrownMinistries,et. al caseBy Justice Guadalupe RiveraPage 9El Paso-aCrucible forJudicial Change?By Clinton F. Cross and Jay L. NyePage 11Senior Lawyer InterviewLarry SchwartzBy Clinton F. Cross Page 13April/May 2012

W. Reed Leverton, P.C.Attorney at Law Mediator ArbitratorAlternative Dispute Resolution Services300 East Main, Suite 1240El Paso, Texas 79901(915) 533-2377 - FAX: 533-2376on-line calendar at: www.reedleverton.comExperience: Licensed Texas Attorney; Former District Judge; Over 900 MediationsCommitment to A.D.R. Processes: Full-Time Mediator / ArbitratorCommitment to Professionalism: LL.M. in Dispute ResolutionYour mediation referrals are always appreciated.Let’s talkturkey.HardieMediation.comSee our websitecalendar andbooking systemBill HardieMediator/ArbitratorApril/May 2012

3THE PRESIDENT’S PAGEState Bar of TexasAward of Merit1996 – 1997 – 1998 – 19992000 – 2001 – 2006-2010Star of Achievement 2000 - 2008 - 2010State Bar of TexasBest Overall Newsletter – 2003, 2007, 2010Publication Achievement Award2003 – 2005 – 2006 – 2007 – 2008 - 2010NABE – LexisNexis Community& Educational Outreach Award 2007 - 2010Bruce Koehler, PresidentJudge Maria Salas-Mendoza,President-ElectRandolph Grambling, Vice PresidentLaura Enriquez, TreasurerJudge Alejandro Gonzalez, SecretaryChantel Crews, Immediate Past President2011-2012 Board MembersTeresa BeltranJudge Linda ChewMark DoreJudge Eduardo GamboaMyer LipsonDenise ButterworthKenneth KrohnRaymond MartinezAlberto MestaJennifer VandenboschYvonne AcostaGeorge AndritsosDuane BakerJudge Kathleen CardoneDonald L. WilliamsEx-officiosSBOT Director, District 17EPYLA, MABA, EPWBA, ABOTA,FBA, EPPA, El Paso Bar FoundationExecutive DirectorNancy GallegoEditorial StaffClinton Cross, EditorStephanie Townsend AllalaJudge Oscar GabaldonDonna Snyder“The El Paso Bar Journal is a bi-monthly publication ofthe El Paso Bar Association. Articles, notices, suggestionsand/or comments should be sent to the attention of NancyGallego. All submissions must be received by the Baroffice on or before the 10th day of the month precedingpublication. Calendar listings, classified ads, displayads, and feature articles should not be considered anendorsement of any service, product, program, seminaror event. Please contact the Bar office for ad rates. Articles published in the Bar Journal do not necessarilyreflect the opinions of the El Paso Bar Association,its Officers, or the Board of Directors. The El PasoBar Association does not endorse candidates forpolitical office. An article in the Bar Journal is not,and should never be construed to be, an endorsementof a person for political office.”Lawyers Serve AllJudge MoJudge Morris A. Galatzan was a force of nature.He represented everything good about lawyersand the practice of law. Judge Mo, as many ofhis friends called him, was quick with a joke and ahelping hand. The son of Russian Jewish immigrants, Judge Galatzanproudly served in World War II and was Judge of the 65th District Courtin the 1950s. In his day, he was known as a top notch trial attorney.However, Judge Galatzan’s importance to me and so many others was notthe result of his past. He lived very much in present and firmly believedthat helping people was a basic and ongoing responsibility. He was anoutstanding example of how attorneys should treat people. He treated therunner (I had been a runner at my firm before law school) and the janitorjust the same as a judge or corporate CEO--with dignity and respect. Heloved people, and he loved being a lawyer. Judge Mo died in 1999, buthis influence is still felt in countless ways in our bar.I thought of Judge Galatzan during the Bar’s Civil Trial Seminar, whichwas recently held in Las Vegas. He truly loved getting together with hisfellow attorneys (and had many stories about those events). The seminarwas a great event with many outstanding speakers. Judge Linda Chewand the CLE Committee did an outstanding job with the seminar. Thecamaraderie exhibited by the diverse group of attorneys in attendancewas enjoyed by all.Please join us for the Bar’s Law Day banquet to be held at theDoubleTree on May 5. Justice Eva Guzman, the first Latina Justice onthe Texas Supreme Court, will be our speaker and we have planned a funevening. We are grateful that Justice Guzman will be joining us. YvonneAcosta and her Law Day Committee are working hard on this event. Welook forward to seeing you there!Bruce A. KoehlerPresidentApril/May 2012

4E l P a s o B a r A ss o c i a t i o nApril Bar L uncheonTuesday, April 10, 2012El Paso Club l 201 E. Main, 18th Floor, Chase Bank - 20 per person, 12:00 NoonGuest Speaker will beChief Justice (Ret) Richard Barajas, who will speak onThe Potential Impact of Border Violence on the Next Generation of LeadersPlease make your reservations by Monday, April 9, 2012 at noonat [email protected] or [email protected] anticipate a very large turnout to this luncheon so please RSVP.E l P a s o B a r A ss o c i a t i o nMay Bar LuncheonTuesday, May 8, 2012El Paso Club l 201 E. Main, 18th Floor, Chase Bank - 20 per person, 12:00 NoonGuest Speakers will beRebecca Lightsey, Executive Director of Texas Appleseed,who will speak about school discipline issues;andJuana Padilla and/or Diana Quezada, who co-ordinatethe El Paso County Attorney’s Teen Court programPlease make your reservations by Monday, May 7, 2012 at noonat [email protected] or [email protected] published in the Bar Journal do not necessarily reflect the opinions of the El Paso Bar Association,its Officers, or the Board of Directors. The El Paso Bar Association does not endorse candidates for political office.An article in the Bar Journal is not, and should never be construed to be, an endorsement of a person for political office.April/May 2012

5CAL E NDAR O F E V E N TSPLEASE NOTE: Please check the Journalfor all the details regarding all above listedevents. If your club, organization, section orcommittee would like to put a notice or anannouncement in the Bar Journal for yourupcoming event or function for the monthof June, 2012, please have the informationto the Bar Association office by Friday, May11, 2012. In order to publish your information we must have it in writing. WE WILLMAKE NO EXCEPTIONS. We also reservethe right to make any editorial changes aswe deem necessary. Please note that there isno charge for this service: (915) 532-7052;(915) 532-7067-fax; [email protected] email. If we do not receive your informationby the specified date please note that we maytry to remind you, but putting this journaltogether every month is a very big task andwe may not have the time to remind you. Soplease don’t miss out on the opportunity tohave your event announced.April, 2012Tuesday, April 3EPBA BOD MeetingFriday, April 6EPBA Office ClosedGood FridaySunday, April 8Easter SundayTuesday, April 10EPBA Monthly LuncheonTuesday, April 10Deadline for Law DayAwards NominationsThursday, April 12EPYLA MeetingThursday, April 19EPPA Monthly LuncheonSaturday, April 28,Law Day Chess TournamentMay, 2012Tuesday, May 1EPBA BOD MeetingSaturday, May 52nd Annual DWI/Drug CourtClassicGolf TournamentSaturday, May 5Law Day Dinner & AwardsBanquetTuesday, May 8EPBA Monthly LuncheonSunday, May 13Mother’s DayThursday, May 17EPPA Monthly LuncheonMonday, May 28EPBA Office ClosedMemorial DayEPBA/County HolidaysThe El Paso Bar Association and theEl Paso County Courthouse will be closedon the following dates:Friday, April 6, 2012 – Good FridayMonday, May 28, 2012 – Memorial DayFormer Assistant Attorney General W. Barton Bolingon his 80th birthday with former staff and associatesGloria Fronterro, David Ferrell, Clinton Cross,and Ana CortinasApril/May 2012Upcoming Events:June 2012Tuesday, June 12EPBA Monthly LuncheonSwearing in of 2012-2013Officers & DirectorsSunday, June 17Father’s DayTuesday, June 19EPBA Office ClosedJuneteenth Day

6Law Day Chess TournamentLawyers and paralegals areinvited to participate in theAnnual Law Day ChessTournament that will takeplay Saturday, April 28, 2012at the Church of St. Clement,810 N. Campbell Street (cornerof Campbell and Montana),from 9:00 a.m. to 12:00 noon.After competing against eachother, the lawyers and paralegalswill compete against the childrenwho place first or second in theirrespective age divisions. Mostof the children come from lowincome school districts becausefederal funds provide for chessprograms in low income school districts, butany child who is attending school in gradesone through eight, or is home schooled andin the appropriate age group, may enter thetournament.Participation is free. First and second placetrophies are awarded to the children whoprevail in each category (identified by gradelevel). The winners then play the lawyers andthe paralegals. If they once again prevail, theyreceive additional recognition in the form of amedal that states “I Beat A Lawyer!”Pre-registration of lawyers, paralegals, andchildren is appreciated, but not required. Preregistration information should be e-mailedto: Augustine Valverde at: [email protected] TOURNAMENT MEANS A LOT TO THECHILDREN WHO COMPETE FOR SUCCESS.YOUR PARTICIPATION IS APPRECIATED.16th Annual Civil Trial SeminarThank YouWe would like to thank all of our generous sponsors who madethe 16th Annual Civil Trial Seminar in Las Vegas, Nevada such a hugesuccess. We really could not do it without your support.Thank you to our sponsors:Altep, Inc.Miller & HusebyRimkus Consulting GroupHardie MediationLaw Office of Teresa BeltranGeorge AndritsosJudge Maria Salas-MendozaLaw Office of Michael Parientein Las VegasJudge Alex GonzalezJudge Eduardo GamboaWe would also like to thank our very generousDoor Prize sponsors:Jeff Ray of Ray, Valdez,McChristian & Jeans, P.C.Ruhmann Law FirmVeronica Teresa LermaDonald L. WilliamsHarbour Law FirmSAVE THE DATE:February, 2013 we will begoing back to Las Vegas!!!!April/May 2012

7Over view of administrativelaw in your practiceBy Janet MonterosYou may not know it, but you mayhave already been engaged in the practiceof Administrative Law. If you have everrepresented an individual in a driver’s licensesuspension or revocation proceeding, anengineer regarding a complaint lodged beforeher licensing board, a physician before theTexas Medical Board, a nurse before theTexas Board of Nurses, or a plumber beforethe Texas Board of Plumbing Examiners, youare practicing administrative law. If you haverepresented a business through an alcoholpermitting process or written a letter on behalfof client expressing his or her opposition to anewly enacted agency rule, you have practicedadministrative law. As an overview, thefollowing is just a portion of what the practiceof administrative law encompasses: Administrative hearings beforeadministrative law judges Alcohol and Beverage Commissioncompliance Agriculture Architects Licensing and regulation of medicaldoctors, physician assistants, chiropractors,dentists, nurses, pharmacists, engineers,electricians, commercial drivers, plumbers,teachers, realtors, veterinarians, surveyors,cosmetologists, barbers, nurses aides as partof the list of occupational license holders School law and representation of schoolboards and districts use, oil & gas tax, business or nexus tax Department of Insurance Fitting and Dispensing of hearinginstruments Texas Legal representation and appealsbefore state and federally funded agenciesand governmental units. Workers’ Compensation Public utility Energy Technical schools Environmental issues and compliance Banking and credit unions Oil & gas Petroleum and refinery issues Environmental issues and compliance State comptroller tax: sales and use,business taxes Accountants Nursing homes HMOs Restaurants Psychologists Lottery commission Insurance agents and insurance companies Appraisers Funeral establishments and funeral directors Physical therapists Social workers Midwives Athletic trainersGovernment regulation is so pervasivein today’s world that it is a rare practitionerthat escapes delving into the practice ofadministrative law during his or her professionallife. This short article will briefly touch onseveral important aspects in the practice ofadministrative law and is not meant as anexhaustive delineation of administrative lawtopics.Background:Administrative law is federal in origin. See,The Administrative Procedure Act (APA),Pub.L. 79-404, 60 Stat. 237, enacted June 11,1946, Recodified by Pub. L. 89–554, Sept. 6,1966, 80 Stat. 383 Recodified by Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383. Additionally,a Model State Administrative ProceduresAct (MSAPA) was drafted by the NationalConference of Commissioners on UniformState Laws during that same year. The Texasversion of the Administrative Procedure Actincorporated much of the terms in the earlierversions of the Model State AdministrativeProcedures Act. The Texas APA (originalAPTRA) was based primarily on the 1961Revised Model State Administrative ProcedureAct (MSAPA). See, Dudley D. McCalla,Comments on Interpretive Rules, AgencyInterpretations and Reasoned Justifications,(2011 Advanced Texas Administrative LawSeminar UTCLE – Austin August 25-26,2011),page 1.The distinguishing feature governing thepractice of administrative law is the principlethat an agency can contain all three powersgenerally separated between the executive,legislative and judicial branches. In Texas theApril/May 2012first rendition of the Administrative Proceduresand Texas Register Act came about in 1975.Texas Gov’t Code, §2001 and §2002 Agencyrule making falls within the context of thelegislative function under the APA. The rulespromulgated by the various state agenciesunder the process outlined under the Act areregularly posted and updated on the TexasSecretary of State website. See, The importanceof familiarity with the relevant set of agencyrules cannot be overstated as outlined in thefollowing paragraphs.Contested Case Proceedings:Simply stated, if your client finds himselfinvolved in disciplinary proceedings due toissues regarding his licensure, conduct orapplication, the process will probably entailhis appearance before the State Office ofAdministrative Hearings if settlement cannotbe made in an informal settlement conference.This is the area where agencies exercise theirjudicial function. These adjudicative hearingsare hearings where evidence is heard and basedon the evidence and acting in a judicial or quasijudicial capacity, a determination is made as tothe rights, duties or privileges of parties beforeit. See, Ramirez V. Texas State Bd. of MedicalExaminers, 927 S.W.2d 770 (Tex.App –Austin 1996). This arena can be a quagmire ofunfamiliar terms such as the standard of reviewallowed on appeal, substantial evidence alongwith some similarities to a standard civil practicesuch as motions for summary dispositionand motions for rehearing. Additionally, theadministrative law practitioner not only hasto have a good grasp of the statutory law butalso possess a familiarity with the agency’sadministrative rules. For example in a caseinvolving a physician, the practitioner will notonly be dealing with the applicable statute,Tex.Occ.Code Ann. §§152 through 165 butalso the rules that the Texas Medical Boardhas enacted. These rules are available under 22Texas Administrative Code §§161 through 200(Texas Medical Board rules). The practitionerwill also need to have a good grasp of theadministrative rules promulgated by the StateOffice of Administrative Hearings under 1 Texas

8Administrative Code §§155 through 167. Anyresort to judicial review will, in most instances,be subject to exhaustion of remedies availablethrough SOAH and the administrative agencybefore appeal to district court. Appeals to districtcourt will usually take place in Travis countyas Travis County is the situs of state agencies.In summary, a contested case proceeding willcover issues relating to agency authority, agencyinterpretation of statutes and rules, discovery,due process concerns, jurisdiction issuescovering sovereign immunity, compliance withprerequisites to suit, exhaustion of remedies,standing and the right to judicial review.Rulemaking:As noted before, agencies exercise a legislativecapacity through rulemaking which can bedescribed as a core function of administrativeagencies. See, Pamela M. Giblin and CarlosR. Romo, Rulemaking Update & Outlook, atthe 23rd Annual Advanced Administrative LawCourse, Austin, Texas (June 30-July 1, 2011) atpage 1; see also, Texas Gov’t Code,Chapters2001, 2006 and 2007. Notice and commentare requirements in the area of rulemaking sothat interested persons be given a “reasonableopportunity” to present their positions on theproposed rule. See, Id. The agency responseto the comments from interested persons willallow the agencies to state their “reasonedjustification” for the adopted rule. Texas.Gov’tCode § 2001.033(requiring a summary ofcomments and reasons why the agency disagreedwith submissions and proposals).There is also arequirement for a takings impact assessment forcertain actions under 2007.003 which outlines theAct’s applicability and rules exempt from takingsanalyses. See, Tex.Gov’t Code §§2007.043. It isalso important to note how an agency arrives atthe final adopted rule as the process of adoptionis critical to any judicial challenge of an agency’srule, with challenges using the declaratoryjudgment action as a vehicle to bring it beforethe district courts. As a reference point, the TexasSupreme Court in its opinion in El Paso HospitalDistrict v. Texas Health and Human ServicesCommission, 247 S.W.3d 709, 714 (Tex.2008),addressed rulemaking and what makes a ruleincluding whether it has general applicability asthe requirement of general applicability invokesthe formal rule-making process. Id at 715.Declaratory Judgment Actions andgovernmental waiver of Sovereign Immunityin Administrative LawThe applicability of sovereign immunitycan involve tort claims, contract claims as wellas claims for injunctive and equitable relief.However, in the practice of administrativelaw, the issue of sovereign immunity regularlypresents itself in the context of challenges tothe authority of state officials. City of El Pasov. Heinrich, 284 S.W.3d 366 (Tex.2009).Rule challenge typically utilizes declaratoryjudgment action.Under the Uniform Declaratory JudgmentsAct, persons “affected by a statute, municipalordinance, contract, or franchise may havedetermined any question of construction orvalidity arising under the instrument, statute,ordinance, contract, or franchise and obtaina declaration of rights, status, or other legalrelations there under.” Tex. Civ. Prac. &Rem. Code Ann. § 37.004. As outlined inthe preceding paragraphs, the challenge toauthority is also couched in terms of challengesto adopted rules. El Paso Hospital District v.Texas Health and Human Services Commission,247 S.W.3d 709, 714 (Tex.2008).In the context of this type of challenge, thesuit “must not complain of a governmentalofficer’s exercise of discretion but rathermust allege, and ultimately prove, that theofficer acted without legal authority or failedto perform a purely ministerial function.”A suit must not complain of a governmentofficer’s exercise of discretion, but rathermust allege, and ultimately prove, that theofficer acted without legal authority or failedto perform a purely ministerial act. City of ElPaso v. Heinrich, 284 S.W.3d 366, at 372 (Tex.2009). Courts often use the terms “sovereignimmunity” and “governmental immunity”interchangeably. However, they involve twodistinct concepts. “Sovereign immunity” refersto the State’s and its agencies’ immunity fromsuit and liability. Wichita Falls State Hosp.v. Taylor, 106 S.W.3d 692, 694 n.3, 46 Tex.Sup. Ct. J. 494 (Tex. 2003). Governmentalimmunity protects political subdivisions ofthe State, including counties, cities, and schooldistricts. Bell v. City of Grand Prairie, 221S.W.3d 317, 321 (Tex. App. Dallas 2007).A few administrative law practitioners haverealized that adding a claim for declaratory orinjunctive relief when challenging a contractaction, will not allow their client to bypass thesovereign immunity bar to suit and liability.Bell v. City of Grand Prairie, 221 S.W.3rd 317.Typically, when the only injury alleged is in thepast and the only real remedy is an award ofmoney damages, a declaratory judgment claimis barred by sovereign immunity. Id. However,in a rule challenge where the primary basisApril/May 2012for the challenge is based upon the validity orinvalidity of the rule, the use of a declaratoryjudgment action is an appropriate legal vehicle.Combs v. Entertainment Publications, Inc., 292S.W.3d 712,(Tex.App Austin 2009) As noted inCombs, “the Texas Administrative ProceduresAct (APA), Tex. Gov’t Code Ann. §§ 2001.021.041 (2008), allows a person to challenge thevalidity or applicability of an agency rulepursuant to a declaratory judgment actionif it is alleged that the rule or its threatenedapplication interferes with or impairs a legalright or privilege of the plaintiff. Tex. Gov’tCode Ann. § 2001.038(a). The APA declaratoryjudgment vehicle of Tex. Gov’t Code Ann. §2001.038 is a legislative grant of subject-matterjurisdiction.” Id at 720.Texas Public Information Act (TPIA) Tex.Gov’t.Code §§552.101-552.148Another familiar aspect of AdministrativeLaw is the TPIA. The TPIA governs thegovernmental release of information deemed tobe public. It also provides for over one hundredexceptions to the release of information. See,City of Garland v. Dallas Morning News,22 S.W.3d 351, 355-56 (Tex.2000). On rareoccasions, a private entity contracting with agovernmental unit, performing governmentalfunctions could be subject to the TPIA withregard to disclosure of information. Tex.Gov’t.Code §552.002(a)(2)[(a) In this chapter,“public information” means information thatis collected, assembled, or maintained undera law or ordinance or in connection withthe transaction of official business: (1) by agovernmental body; or (2) for a governmentalbody and the governmental body owns theinformation or has a right of access to it.” Ifa governmental entity decides to withholdany information requested by the public, theymust notify the requestor and forward a letterto the Texas Attorney General, briefing theissues along with a copy or sample copy ofthe information requested by the requestor. Agovernmental body must ask for a decisionfrom the Attorney General’s office and state theexceptions that apply within ten business daysof receiving the written request for information.See . Tex. Gov’t.Code § 552.301(b).; Tex.Att’yGen. ORD-00621 (2012).However, it is noted that judicial records arenot subject to the TPIA, but come within theRules of Judicial Administration, specificallyRule 12. Any denials of information canbe appealed to the Texas Office of CourtAdministration.Texas Open Meetings Act (OMA) TEX.

9GOV’T CODE ANN. § 551.001-551.146.In the words of Texas Supreme Court Justice,Lloyd Doggett in Acker, in Acker v. Texas WaterCom’n, 790 S.W.2d 299 (Tex. 1990):The Open Meetings Act was enactedin 1967 for the purpose “of assuringthat the public has the opportunity to beinformed concerning the transactions ofpublic business.” Acts 1967, ch. 271,§ 7, 1967 Tex.Gen.Laws 597, 598. Itrecognized the wisdom contained inthe words of Justice Brandeis that:“Sunlight is said to be the best ofdisinfectants; electric light the mostefficient policeman.” L. Brandeis,Other People’s Money 92 (1914 ed.).The executive and legislative decisionsof our governmental officials as wellas the underlying reasoning must bediscussed openly before the publicrather than secretly behind closeddoors. In order to effect this policy,this statute requires that “every regular,special, or called meeting or sessionof every governmental body shall beopen to the public.” Tex.Rev.Civ.Stat.Ann. art. 6252-17, § 2(a) (VernonSupp.1990). A “meeting” includes anydeliberation involving a “quorum” ormajority of the members of a governingbody at which they act on or discussany public business or policy overTwhich they have control. Id. at §§ 1(a)and (d). Any verbal exchange between amajority of the members concerning anyissue within their jurisdiction constitutesa “deliberation.” Id. at § 1(b). When amajority of a public decisionmaking bodyis considering a pending issue, there canbe no “informal” discussion. There iseither formal consideration of a matter incompliance with the Open Meetings Actor an illegal meeting. We have previouslynoted that there is a broad scope to thecoverage of the Open Meetings Act anda narrowness to its few exceptions. CoxEnterprises, Inc. v. Board of Trustees, 706S.W.2d 956, 958 (Tex.1986). Its breadthis consistent with the recommendationof Woodrow Wilson that “Governmentought to be all outside and no inside.”2Our citizens are entitled to more thana result. They are entitled not only toknow what government decides but toobserve how and why every decision isreached. The explicit command of thestatute is for openness at every stage ofthe deliberations. Accordingly, we havedemanded exact and literal compliancewith the terms of this statute. SmithCounty v. Thornton,726 S.W.2d 2, 3(Tex.1986).The public’s access to government informationis the fundamental basis for both the PublicInformation Act as well the Texas OpenMeetings Act however, the definitions ofgovernmental body differ between the two Acts.The practitioner in his or her practice needsto be aware that although similar definitionsof governmental body apply, there are somedifferences between the two. The PublicInformation Act defines a governmental entitiesas those supported by public funds (§552.003(1)(A). However, perhaps to the astonishment ofsome, the Open Meetings Act does not requirethat a governmental entity be in receipt orsupported by public funds for applicability ofOMA. See, Tex. Att’y Gen.LO-98-040, at 2. Itmay be applicable to a client that you did notinitially perceive as a governmental entity.In summary, the practice of administrative lawis more commonplace than most practitionersbelieve. Only a few of administrative lawconcepts have been covered above. A thoroughfamiliarity with the particular agency’s statutesand rules pertaining to your client’s dilemmais crucial in your effective representation of aclient in administrative law matters. The bestway to start your analysis is by accessing thepertinent statute(s), applicable administrativerules for the agency, any relevant AttorneyGeneral opinions on the issue and alsoaccessing, the State Office of AdministrativeHearings procedural rules under the TexasAdministrative Code and relevant case law.JANET MONTEROS is an Assistant ElPaso County Attorney. She is board certified inadministrative law by the Texas Board of LegalSpecialization. She is also President-elect of the ElPaso Women’s Bar Association.The Law West Of The Pecoshe Eighth Court of Appeals releasedits opinion on February 17, 2012in John F. Cook v. Tom BrownMinistries (TBM), Word of LifeChurch of El Paso (WOL), Tom Brown, (Brown)El Pasoans for Traditional Family Values(EPTFV), Salvador Gomez, Ben Mendoza,Elizabeth Branham and Richarda Momsen,in her Official Capacity as El Paso City Clerk(Clerk), No. 08-11-00367-CV, 2012 WL525451(Tex. App.- El Paso, 2012). MayorJohn F. Cook sought to enjoin the use of recallpetitions for a recall election alleging thepetitions had been knowingly and improperlyBy Justice Guadalupe Riverafinanced, gathered, circulated, and submitted inviolation of the Texas Election Code. The trialcourt denied injunctive relief and an acceleratedinterlocutory appeal followed.Brown, President and Chairman of theBoard of Directors and Pastor of a non-profitcorporation, WOL, served as the chairman ofEPTFV, a specific-purpose political committeecreated to secure passage of an ordinancewhich provided in part, “ El Paso endorsestraditional family values by making healthbenefits available to city employees and theirlegal spouse and dependent children.” Theordinance was approved at the NovemberApril/May 20122, 2010 election. With that, the committee’spurpose ended. On June 14, 2011, El Paso CityCouncil amended the ordinance and restoredhealth benefits to those who would have losttheir benefits under the ordinance. In response,Brown, WOL Church, and EPTFV joined inan effort to recall Mayor Cook. On July 18,2011, in a social media statement, Brownencouraged the public to call the church tosign the petition.On September 12, 2011 Cook filed suitseeking a temporary restraining order, injunctiverelief and a declaratory judgment, stating thatefforts to initiate a recall election are not

10exempt from Texas campaign finance lawsand that TBM, EPTFV, and the other appelleesviolated provisions of the Election Code in thecirculation and submission of recall petitions.The trial court issued a TRO enjoining anyfurther circulation of petitions and scheduledan injunction hearing. The following day amotion to dissolve the TRO was filed and aday later the court dissolved the portions ofthe TRO that enjoined the circulation of recallpetitions and ordered the City Clerk to acceptall original recall petitions. The trial court notedthat Cook might be “absolutely right” that fraudand illegality may have taken place and askedwhether the trial court had the power to stopan election to thwart the rule of the public.In response, Cook argued that under Section253.094 (b) the court could enjoin illegal actsand that he was not seeking to enjoin an electionor contest election results.The court explained that although it wantedto give meaning to Section 253.094(b), the willof the people was more important. Not wantingto thwart the will of the people, the court notedit would force Cook to have a subsequent courtdetermine whether the recall election had beenvoid from its inception shou

Law Office of Teresa Beltran George Andritsos Judge Maria Salas-Mendoza Law Office of Michael Pariente in Las Vegas Judge Alex Gonzalez Judge Eduardo Gamboa Jeff Ray of Ray, Valdez, McChristian & Jeans, P.C. Ruhmann Law Firm Veronica Teresa Lerma Donald L. Williams Harbour Law Firm