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Hoyela v. Starr County

Court of Appeals of Texas, Fourth District, San Antonio

July 24, 2019

Eric HOYELA, Jesus Oyela, Cynthia Arredondo, Emede Barrera, Jose Leon Garcia, Jr., Edelmira Gomez, Jorge Solis, Jorge Alberto Barrera, Jose Saenz, Alvaro Pena, Erika Madariaga, Gina Madariaga, Ester Madariaga, Maria Lamar Trevino, and Monica Aguirre, Appellants
v.
STARR COUNTY, TEXAS, Appellee

          From the 229th Judicial District Court, Starr County, Texas Trial Court No. DC-16-514 Honorable Everardo Garcia, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice

          MEMORANDUM OPINION

          Luz Elena D. Chapa, Justice

         Appellants challenge the trial court's dismissal of their suit against Starr County under section 89.0041 of the Texas Local Government Code, which requires a person who sues a county to mail written notice to the county judge and the county's district or county attorney within 30 days of filing suit. See Tex. Loc. Gov't Code § 89.0041. Because there was substantial compliance, and alternatively the county waived any noncompliance, we reverse and remand.

         Background

         Appellants are the owners or former owners of eight-liner[1] gaming businesses. The appellants consist of the original plaintiffs: Eric Hoyela, Jesus Oyela, Cynthia Arredondo, Emede Barrera, Jose Leon Garcia, Jr., Edelmira Gomez, and Jorge Solis; the first set of intervenors, Jorge Alberto Barrera, Jose Saenz, Alvaro Pena, Erika Madariaga, Gina Madariaga, and Ester Madariaga; and the second set of intervenors, Maria Lamar Trevino and Monica Aguirre.

         The original plaintiffs filed their lawsuit on October 12, 2016. The first set of intervenors filed a plea in intervention on December 7, 2016. And the second set of intervenors filed their plea in intervention on July 3, 2017. The plaintiffs and intervenors challenged a Starr County ordinance that regulated and taxed eight-liner gaming machines and sought, among other relief, to recover illegally collected taxes.

         Starr County retained outside counsel, who filed Starr County's answer to the original petition on December 2, 2016, and filed an answer to the second set of intervenors' plea on November 8, 2017. Starr County filed an answer specifically addressing the first set of intervenors' plea on December 23, 2016. A certificate of written discovery was filed and served on Starr County on February 8, 2017.

         On January 16, 2018, Starr County filed a motion to dismiss based on the plaintiffs and intervenors' failure to "mail" written notice to the county judge and to the county's district or county attorney within 30 days of filing suit, as required by section 89.0041 of the Texas Local Government Code. According to the motion to dismiss, Starr County's county judge was personally served with the original plaintiffs' petition on October 26, 2016, which was fourteen calendar days after the original petition was filed. The motion also notes the first set of intervenors' plea in intervention was "EFiled" in the suit on December 7, 2016.

         After several hearings on the motion, the trial court granted the motion and dismissed the suit. Appellants filed a motion to reconsider the dismissal, which the trial court denied. Appellants then filed a timely notice of appeal.

         Discussion

         Appellants contend the trial court erred in dismissing the cause because they substantially complied with section 89.0041. Alternatively, they contend Starr County waived the right to seek dismissal under section 89.0041. Section 89.0041 provides:

(a) A person filing suit against a county or against a county official in the official's capacity as a county official ...

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