Court of Appeals of Texas, Fourth District, San Antonio
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
STARR COUNTY, TEXAS, Appellee
the 229th Judicial District Court, Starr County, Texas Trial
Court No. DC-16-514 Honorable Everardo Garcia, Judge
Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D.
Chapa, Justice Beth Watkins, Justice
Elena D. Chapa, Justice
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.
are the owners or former owners of eight-liner 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.
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.
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.
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.
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.
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
(a) A person filing suit against a county or against a county
official in the official's capacity as a county official