the Harvard-educated L.A. City Attorney, Rocky Delgadillo, who is best known for prosecuting famed Paris Hilton and publicly admitting that he misuse

The 10 WORST U.S. Prosecutors Named: Texas Leads List with Four

United States Attorney General, Alberto Gonzales, was selected as the worst prosecutor out of 10 in the nation in 2007 for his involvement in the firings of nine U.S. Attorneys and the politicization of the Justice Department. At a close second, Texas ex-prosecutor Terry D. McEachern, who is best known for seeking unlawful cocaine possession charges against the African-American community of Tulia, Texas, and withholding exculpatory evidence. Next selected, former North Carolina D.A. Michael Nifong, for the widely-publicized debacle in the rape prosecution of Duke Lacrosse players causing his disbarment for having engaged in dishonesty, fraud, and withholding exculpatory information.

While a prosecutor’s job is to seek justice, there have been numerous instances in U.S history where federal and state prosecutors have engaged in unethical conduct simply to secure a conviction where otherwise not possible if they had played “by the rules.” The “Ten Worst Prosecutors” list carefully researched and produced by the Bennett Law Firm (BLF) in Houston, Texas, features a handful of recent occurrences where federal and state prosecutors did not play “by the rules” with respect to evidence in criminal trials and ruined the lives of innocent people to further their own professional careers.

The BLF and the “Bad Prosecutor Blog” website (visit: http://bennettlawfirm. typepad.com/badprosecutors) chose to recognize the ten worst prosecutors in the United States in 2007 to bring about an open discussion of prevalent prosecutorial misconduct, and most importantly, to stress the importance of holding bad prosecutors accountable for their unlawful indiscretions. For over thirty years, the BLF has been involved in criminal, civil, and administrative investigation. BLF Attorney Robert S. “Bob” Bennett, a former federal prosecutor, has been qualified as an expert on prosecutorial abuse and prosecutorial recusal. Mr. Bennett has also published numerous articles and has given countless speeches on these topics.

Prosecutorial misconduct ranges from hiding, destroying, or tampering with evidence, case files or court records; failing to disclose exculpatory evidence; using false or misleading evidence during trial; to improper behavior during grand jury proceedings. The BLF’s “Ten Worst” list exposes the harsh reality that bad prosecutors are not always disciplined for such misconduct and, in most cases, continue practicing law without missing a beat. The BLF and the website strongly believe that the list will heighten public awareness and, in turn, help curb unjust prosecutions and deter future prosecutorial misconduct.

Other bad prosecutors selected for the BLF “Ten Worst” list include the likes of Louisiana Attorney General Charles Foti, Jr., Massachusetts Assistant U.S. Attorney Jeffrey Auerhahn, Georgia Prosecutor David McDade, Oklahoma D.A. Bill Peterson, L.A. City Attorney Rocky Delgadillo, and Texas licensed attorneys: Charles Sebesta and Randall W. Reynolds.

Foti’s persistence in attempting to prosecute a doctor and two nurses after hurricane Katrina and making extrajudicial statements surrounding their guilt have secured him a spot on the BLF’s “Ten Worst” list. Auerhahn’s blatant disregard for the constitutional rights of an innocent man which resulted in a 22 year sentence and 13 years behind bars before it was ever discovered has earned him a listing as well. McDade was selected for overzealously prosecuting a 17-year-old over oral sex with a consenting 15-year-old girl under an archaic loophole in Georgia law (which has now been abolished) and for distributing a video of the sexual encounter in violation of federal child pornography laws.

Texas prosecutor, Charles Sebesta, makes an appearance on the list for presenting false, misleading evidence and not disclosing an exculpatory confession during the murder prosecution of Anthony Graves which resulted in his conviction and being sent to death row for capital murder in 1994. Ward County D.A, Randall W. Reynolds, was selected for dragging his feet in response to reliable allegations of sexual abuse of inmates at the West Texas State School in Pyote, Texas, and delaying the prosecution of two accused prison guards for more than 2 years.

Also selected was prosecutor Bill Peterson for inspiring John Grisham to write a novel about his vigorous yet erroneous prosecution and conviction of Ron Williamson for capital murder in 1988 on weak physical evidence and jailhouse informants. Last, but certainly not least, the list includes the Harvard-educated L.A. City Attorney, Rocky Delgadillo, who is best known for prosecuting famed Paris Hilton and publicly admitting that he misused public resources by negligently allowing his accident-prone wife to use a city vehicle for personal errands resulting $1,200 of damage and then letting taxpayers foot the bill, all the while complaining about a two-tiered judicial system that gives “special treatment” to the privileged.

If you would like to obtain a copy of the BLF’s “Ten Worst Prosecutors” Article, please visit http://bennettlawfirm.typepad.com/badprosecutors or contact Scott Chauveaux at 713-225-6000; e-mail Schauveaux@bennettlawfirm.com. To contact BLF Attorney Bob Bennett, visit: www.bennettlawfirm.com or email Bbennett@bennettlawfirm.com.


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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA

v.

MARK ALBERT MALOOF,

Defendant.
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Criminal No.: H-97-93

Violations:

15 U.S.C. §1
18 U.S.C. § 371
FILED 6/23/97


UNITED STATES' RESPONSE TO DEFENDANT'S
MOTION TO DISMISS INDICTMENT FOR PROSECUTORIAL
MISCONDUCT IN GRAND JURY PROCEEDINGS

The United States of America, through its undersigned attorney, hereby responds to Defendant's Motion to Dismiss Indictment for Prosecutorial Misconduct in Grand Jury Proceedings ("Defendant's Motion"). In his Motion, the defendant alleges a "pervasive pattern of prosecutorial misconduct prejudicing the Defendant in underlying grand jury proceedings." Def. Mot. at 1. Specifically, he claims that:

1. government attorneys had a conflict of interest in conducting the grand jury investigation;

2. government attorneys conducted abusive and misleading questioning of witnesses before the grand jury; and,

3. government attorneys and agents interfered with defense counsel's access to a government witness.

Defendant's Motion lacks merit. First, defendant fails to demonstrate a pattern of government misconduct. In fact, the conduct of government attorneys has been at all times ethical and appropriate. Secondly, defendant has failed to show he has been prejudiced in any way. Therefore, dismissal of the Indictment is inappropriate and unwarranted, and defendant's Motion should be denied.

DISMISSAL OF INDICTMENT IS AN EXTREME REMEDY WHICH REQUIRES A
FINDING OF ACTUAL PREJUDICE

As a sanction for alleged misconduct, the standard for dismissal of an indictment is extremely high. The Supreme Court held that a district court may not exercise its supervisory powers to dismiss an indictment for prosecutorial misconduct in such a way that by-passes the harmless error rule of Fed.R.Crim.P. 52(a). Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369 (1988). Thus, dismissal is appropriate only "'if it is established that the violation substantially influenced the grand jury's decision to indict' or if there is ‘grave doubt' that the decision to indict was free from substantial influence of such violations." Id. at 256, 108 S.Ct. at 2374, quoting United States v. Mechanik, 475 U.S. 66, 78, 106 S.Ct. 938, 946 (1986). A district court has "no authority to dismiss an indictment on the basis of prosecutorial misconduct absent a finding that petitioners were prejudiced by such misconduct." Id. at 263, 108 S.Ct. at 2378. See also United States v. Williams, 504 U.S. 36, 47, 112 S.Ct. 1735, 1742 (1992) (further restricting supervisory power of a court to its own procedures).

Because dismissal of an indictment is an extreme remedy, a defendant seeking a dismissal on either constitutional or ethical grounds must prove actual prejudice. United States v. Morrison, 449 U.S. 361, 365-66, 101 S.Ct. 665, reh. denied, 450 U.S. 960 (1981); Bank of Nova Scotia, 487 U.S. at 255, 108 S.Ct. at 2374. See also United States v. Weeks, 919 F.2d 248, 254 (5th Cir. 1990), cert. denied, 499 U.S. 954 (1991) ; United States v. McKenzie, 678 F.2d 629, 631 (5th Cir.), cert. denied, 459 U.S. 1038 (1982); United States v. Acosta, 526 F.2d 670 (5th Cir.), cert. denied, 426 U.S. 920 (1976). There is a strong presumption of regularity surrounding a grand jury proceeding. United States v. Ruppel, 666 F.2d 261, 268 (5th Cir.), cert. denied, 458 U.S. 1107 (1982). Prosecutorial misconduct, no matter how egregious, does not provide grounds for dismissing an indictment without a showing of actual prejudice. United States v. Merlino, 595 F.2d 1016, 1018 (5th Cir. 1979), cert. denied, 444 U.S. 1071 (1980).

As evidenced in the above-cited cases, courts have routinely refused to dismiss indictments for want of actual prejudice. The United States Supreme Court in the Morrison case articulated the public interest underlying this policy:

So drastic a step [as dismissal] might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.

449 U.S. at 366 n.3; 101 S.Ct. 668 n.3, quoting United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419 (1966).

DEFENDANT HAS NOT DEMONSTRATED PROSECUTORIAL MISCONDUCT NOR
SHOWN ACTUAL PREJUDICE AND THEREFORE DISMISSAL OF THE
INDICTMENT IS UNWARRANTED

On June 21, 1995, FBI agents met with defendant and sought his cooperation in the price-fixing investigation of the metal building insulation industry. On this day, government attorneys also met briefly with defendant to offer him immunity in exchange for his cooperation, which he declined. Defendant claims that the failure of the government attorneys to later withdraw from the grand jury investigation prejudiced him. He asserts that "personal involvement . . . destroyed" the ability of government attorneys to evaluate evidence objectively. Def. Mot. at 7. The government attorneys in this case had no "personal involvement" in any of the events forming the basis of the charges against the defendant. Defendant's assertion that the objectivity of government attorneys was affected by meeting with him relies solely on actions taken by the government attorneys while performing their normal, every day, investigative duties as prosecutors. In any event, the Indictment of defendant was not returned by the government attorneys, but by the defendant's peers and fellow citizens, the grand jurors.

Defendant asserts that because of "personal involvement", government attorneys will be trial witnesses. However, the government attorneys in this case are not witnesses because the defendant has not shown a compelling need for their testimony. See United States v. Brothers, 856 F.Supp. 388 (M.D.Tenn. 1992). See also United States' Response to Defendant's Motion to Disqualify Prosecutors Mark R. Rosman and Karen J. Sharp. While defendant provides his version of events leading up to his meeting with government attorneys, none of these events, nor the meeting itself with government attorneys, has any relevance to the grand jury proceedings and the resulting indictment brought against him.1 He fails to make a connection between the meeting and the grand jury proceedings leading to the Indictment, and thus fails to show how, if at all, he was prejudiced.

Defendant also claims that the government attorneys did not inform the grand jury that defendant declined the offer of immunity made to him. Defendant asserts his refusal to cooperate with the investigation is somehow exculpatory. The fact he declined the offered immunity is ambiguous at best. He could have chosen not to accept it for any number of reasons, most of which are not exculpatory. In any event, defendant purely speculates as to what grand jurors were told or not told about the case. In fact, the grand jury was aware that immunity was offered to defendant and that he declined to accept it. Thus, defendant has suffered no prejudice.

Defendant claims next that "abusive and misleading" questioning of several witnesses "biased and deceived" the grand jury. Def. Mot. at 8. He concludes that the prosecutors "broadcast" to grand jurors their personal opinions of the credibility of witnesses, and that repetitive questions were designed to communicate an erroneous proposition of law, thus somehow deceiving grand jurors regarding the applicable law. Id. These conclusions are without support as well.

The evidence submitted by defendant fails to support allegations that the government attorneys repeatedly "denigrated" witnesses, or that grand jurors were much more likely to discredit the testimony of such witnesses. Id. at 9. Defendant's affidavits from his co-workers do not come close to supporting such bald assertions. The affidavits of Byrd, Gilchrest, Hren, Nabors, and Watson merely say that each was questioned "several times" on a subject. The affidavit of Nancy Jensen says nothing about being questioned in the grand jury. Mark Novak is the only witness who claims to have been "upset" by the undersigned attorney "yelling" at him. The government questioned Mr. Novak in a proper and appropriate manner. As was stated to Mr. Novak's attorney on April 3, 1996, the government has an obligation to get straight answers from non-responsive, evasive witnesses for the record and for the benefit of the grand jurors. If the Court desires, the government will make a transcript of Mr. Novak's testimony, or that of any other witness, available for in camera inspection to prove that the witness was not subject to abusive questioning and that defendant was not prejudiced.

Significantly, neither Mr. Novak nor any other witness has claimed that they were intimidated into testifying falsely on any question, so again the defendant has not shown prejudice resulting from such alleged conduct.

There is simply no evidence that prosecutors "broadcast" their personal opinions which allegedly biased jurors. Likewise, there is no evidence that the grand jurors were erroneously instructed on applicable laws. In short, defendant again relies on conclusory and speculative allegations of misconduct to support his Motion. The strong presumption of regularity in grand jury proceedings cannot be outweighed by conclusory or speculative allegations of misconduct. U.S. v. Morgan, 845 F.Supp. 934, 941 (D.Conn. 1994), citing United States v. Abcasis, 785 F.Supp. 1113, 1119 (S.D.N.Y. 1992). Because defendant relies on conclusions without supporting facts, he has not shown a substantial likelihood of influence or actual prejudice. There is no evidence that he suffered any prejudice at all, much less the evidence needed to meet the high standard that grand jurors were "substantially influenced" by such conduct. Bank of Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2334.

In his last argument, defendant claims that the prosecution made efforts to preclude his attorneys from gaining access to a government witness, Janne Smith. As seen in the accompanying Affidavit of Special Agent Frank Eldredge, the government made no efforts to prevent Ms. Smith from meeting with or disclosing her cooperation to defense,counsel. Eldredge Aff. at 1-2. Moreover, defendant fails to mention several important facts. First, Ms. Smith has been represented by independent counsel since June 1995. Id. at 2. Presumably, she has been following and acting on the advice of her counsel in deciding whom she would talk to about her knowledge of events and cooperation with the grand jury investigation. If defendant's attorneys wanted to speak with Ms. Smith, they could have contacted her counsel. This fact negates defendant's assertion that her testimony was in some way influenced by the government.

Another important fact not mentioned by defendant is that Ms. Smith actually met with counsel for Bay Insulation, Keith Rounsaville, and was questioned at length about her knowledge of defendant's activities and her cooperation with the grand jury investigation. Id. at 2. The government believes that defendant's attorneys are party to a joint defense agreement with other targets of the grand jury investigation, and their respective counsel, including defendant's employer, Bay Insulation Supply Co., and corporate counsel, Mr. Rounsaville. Thus, there is every likelihood that Mr. Rounsaville shared the notes and/or content of his lengthy debriefing of Ms. Smith with defendant's attorneys, as well as with the attorneys for other targets of the grand jury investigation. Indeed, during a pre-indictment meeting with government counsel, defendant's attorneys represented that they had already learned what Ms. Smith had to say. To date, the government has witnessed much evidence of the sharing of information between the defendant's attorneys and his employer's attorneys. See Attached letter, dated April 10, 1997 (indicating Bay counsel has seen government correspondence sent to defendant's attorney.) See also Affidavits of Mark Novak and Keith Rounsaville, attached to Def. Mot. to Preserve Grand Jury Tapes. (Mr. Rounsaville represented Mr. Novak at the grand jury.). Defendant's argument that he had no access to Ms. Smith is insincere at best. At a minimum, he has had indirect access to her information, and has suffered no prejudice at all.

CONCLUSION

Defendant has failed to demonstrate any government misconduct that would justify exercise of the Court's supervisory authority, or that he has suffered any actual prejudice. The conduct of the government attorneys has been at all times ethical and appropriate. Accordingly, dismissal of the Indictment is unwarranted in this case, and his Motion should be denied.




Respectfully submitted,

______________/s/________________
MARK R. ROSMAN
Attorney-in-Charge
Florida State Bar No. 0964387
U.S. Department of Justice
Antitrust Division
1601 Elm Street, Suite 4950
Dallas, Texas 75201-4717
(214) 880-9401

FOOTNOTES

1 The government strongly disputes defendant's description of the events of June 21, 1995. See Attached letters, dated August 12 and September 5, 1997.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the United States' Response to Defendant's Motion to Dismiss Indictment for Prosecutorial Misconduct in Grand Jury Proceedings was sent via Federal Express this ______ day of June, 1997, to:





J. Mark White, Esq.
White, Dunn & Booker
1200 First Alabama Bank Building
Birmingham, AL 32503

Albert C. Bowen, Esq.
Beddow, Erben & Bowen, P.A
Second Floor - 2019 Building
2019 3rd Avenue, North
Birmingham, AL 35203




_______________/s/________________
MARK R. ROSMAN
Attorney-in-Charge
Florida State Bar No. 0964387
U.S. Department of Justice
Antitrust Division
1601 Elm Street, Suite 4950
Dallas, Texas 75201-4717
(214) 880-9401

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA

v.

MARK ALBERT MALOOF,

Defendant.
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Criminal No.: H-97-93

Violations:

15 U.S.C. §1
18 U.S.C. § 371



ORDER

Upon consideration of the defendant's Motion to Dismiss Indictment for Prosecutorial Misconduct in Grand Jury Proceedings,

The Defendant's Motion is hereby DENIED.

DONE AND ENTERED THIS ________ day of _________ , 1997.






____________________________
United States District Judge

In applying the "essence" test, an arbitration award "must have a basis that is at least rationally inferable, if not obviously drawn,

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NUMBER 13-06-023-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



CITY OF WESLACO, TEXAS, Appellant,


v.


BAUDELIO CASTILLO, ET AL., Appellees.

On appeal from the 332nd District Court of Hidalgo County, Texas.



MEMORANDUM OPINION


Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Yañez

Appellant, the City of Weslaco, Texas ("the City"), appeals from the confirmation of an arbitration award in favor of appellees, Baudelio Castillo, David Gamez, Jose Angel Rodriguez, Brent Kennedy, and Adan Sanchez. (1) In two issues, the City contends the trial court erred in (1) confirming the award because the arbitration panel exceeded its authority under the collective bargaining agreement ("CBA"), and (2) awarding attorneys' fees to appellees. We modify the judgment and, as modified, affirm.

Background

In 1998, appellees presented numerous complaints to the City regarding alleged acts of harassment, official oppression, retaliation and discrimination against them by then-Police Chief, J. D. Martinez, and other senior police department personnel. Appellees alleged that certain actions taken against them by Chief Martinez and others were in violation of the CBA between the parties. (2) On February 25, 1999, the parties signed an agreement to arbitrate the claims under the Uniform Arbitration Act. The agreement provides that the written decision of the two arbitration judges "shall be binding upon the sides." (3) The arbitration panel heard sworn testimony from approximately thirty witnesses in seventeen days of hearings held over several months, from February to June 1999. On August 30, 1999, the panel issued its decision. Among other things, the panel found that senior police officers had engaged in "intentional, oppressive and harmful acts" against appellees, that Chief Martinez "knew or should have known" of the senior officers' misconduct, and that by "fail[ing] to stop" the officers' abuse of their authority, Chief Martinez sanctioned the misconduct. The arbitration award also (1) awarded monetary damages to appellees, (4) (2) awarded appellees $20,000.00 in attorneys' fees, and (3) ordered the removal of certain written reprimands or charges from appellees' personnel files.

On September 14, 1999, the City filed suit, seeking a declaratory judgment that the arbitration panel had exceeded its authority under the CBA and chapter 143 of the local government code. (5) Appellees answered and filed a counter-claim, seeking confirmation of the arbitration award. On November 20, 2000, appellees filed a motion for summary judgment, contending that the City, as the losing party seeking to vacate the arbitration award, had the burden to bring forth a complete record that would warrant vacating the award, and noting that it is undisputed that no complete record of the arbitration proceedings exists. On March 11, 2004, the City filed a motion for summary judgment, contending that the arbitration panel exceeded its authority under the CBA and chapter 143 of the local government code. The parties filed several supplemental answers and responses. On May 25, 2004, the trial court granted appellees' motion for summary judgment and affirmed the arbitration award. The May 25, 2004 order did not address the City's claims or the issues of attorneys' fees and interest. On December 13, 2005, the trial court issued an order, in which it (1) took notice that appellees had established attorneys' fees and expenses in the amount of $47,652.77, and (2) awarded appellees attorneys' fees in the amount of $40,000 (plus attorneys' fees in the event of appeal), plus pre- and post-judgment interest. This appeal ensued.

Standard of Review and Applicable Law

Where a party appeals a grant of summary judgment in a suit to vacate an arbitration award, we review the district court's ruling de novo. (6) As "long as the arbitrator's decision draws its essence from the collective bargaining agreement and the arbitrator is not fashioning his own brand of industrial justice," we will decline to vacate the award. (7) In applying the "essence" test, an arbitration award "must have a basis that is at least rationally inferable, if not obviously drawn, from the letter or purpose of the collective bargaining agreement. . . . The award must, in some logical way, be derived from the wording or purpose of the contract." (8)

Although we accord an arbitrator's decision considerable deference regarding the merits of the controversy, the CBA circumscribes his jurisdiction. (9) An arbitrator may look beyond the written contract when interpreting a collective bargaining agreement if the instrument is ambiguous or silent upon a precise question. (10) Where the arbitrator exceeds the express limitations of his contractual mandate, judicial deference ends and vacatur or modification of the award is an appropriate remedy. (11)

Jurisdiction

Initially, we address appellees' "motion to determine jurisdiction," in which they seek dismissal of the City's appeal, contending that: (1) the trial court's May 25, 2005 order disposes of all parties and issues and is therefore a final order, (2) the December 13, 2005 order is a nullity because the court's plenary power had expired, and (3) therefore, the City's filing of its notice of appeal was untimely. The City argues that the May 25, 2005 order "addressed the merits of the case but did not resolve the issue of attorneys['] fees and interest," and that the December 13, 2005 order "disposed of all issues as to all parties" and became the court's final judgment, from which the City timely appealed.

A judgment is not final unless it disposes of all pending parties and claims in the record. (12) There can be no presumption that a motion for summary judgment addresses all of the movant's claims. (13) In cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial is final for purposes of appeal if and only if it either states with unmistakable clarity that it is a final judgment or actually disposes of all claims and parties then before the court, regardless of its language. (14) The law does not require that a final judgment be in any particular form. (15) Therefore, whether a summary-judgment order is a final judgment must be determined from its language and the record in the case. (16)

Here, the May 25, 2005 order, entitled "Judgment Confirming Award," (1) states that appellees "are entitled to Summary Judgment and a judgment confirming the award of the arbitrator," and (2) orders that appellees "have judgment as specified in the Arbitrator's Order of August 30, 1999." It neither addresses the City's request for declaratory relief and attorneys' fees, nor does it contain a "Mother Hubbard" clause, stating that "all relief not expressly granted is denied."

The December 13, 2005 order, entitled "Order Granting Defendants' Attorney's Fees and Interest on Judgment," (1) notes that both the City and appellees sought attorneys' fees under the Declaratory Judgment Act, (17) and (2) awards appellees attorneys' fees (including attorneys' fees on appeal) and pre- and post-judgment interest. The order further states that "[a]ll writs and processes for the enforcement and collection of this judgment or the costs of court may issue as necessary" and "[a]ll further relief not expressly granted in this judgment is hereby DENIED." We conclude that because the May 25, 2005 order did not dispose of the City's claims for declaratory judgment or attorneys' fees, it was not a final appealable order. In addition, although we recognize that a "Mother Hubbard" clause alone does not indicate that a judgment rendered without a conventional trial is final, (18) we nonetheless conclude that based on the language of the order and the record in this case, the December 13, 2005 order is a final, appealable order. Accordingly, we hold the City's notice of appeal was timely filed.

Appellees' Motion for Summary Judgment

In its first issue, the City complains the trial court erred in confirming the arbitration award because the arbitrators exceeded the scope of their authority under the CBA. Article I of the CBA states that the purpose of the agreement is "to provide for an equitable and orderly process that addresses salaries, working conditions, and employee-employer working relations that may arise" during the term of the agreement. Article XXII, section 7 of the CBA provides, in pertinent part, "[n]o police officer shall be discriminated against in any way because of activity on behalf of the Union." Article XXVII, entitled "Grievance Procedures," provides for arbitration of grievances. Subparagraph (2) of this section provides:

The hearing on the grievance shall be informal and the rules of evidence shall not apply. The Arbitrator shall not have the power to add to, subtract from, to modify, the provisions of this agreement in arriving at a decision on the issue or issues presented; and shall confine his decision solely to the precise issue or issues submitted for arbitration, and shall have no authority to determine any other issues not directly presented in the grievance. The decision of the Arbitrator shall be final and binding upon the grievant and the City.


Paragraph II of the arbitration award states that from November 1997 to August 1999, appellees were "harassed, intimidated, embarrassed, cajoled, denied advancement, suspended, removed from work positions within the Police department, forced to suffer monetary damage, suffered violations of their civil rights, and were publicly humiliated" by Chief Martinez and other senior police officers. In Paragraph VI(A), in which the arbitration panel offers its "Conclusion[s]," the award states that the City, through its senior police officers, engaged in "official oppression, discrimination, and punitive retaliation" against appellees in violation of section 7 of the CBA. As noted above, section 7 of Article XXII of the CBA prohibits discrimination against officers because of Union activity. We find no other reference in the arbitration award to a specific section of the CBA. Accordingly, we conclude that the award is based on the arbitrators' conclusion that the City and its senior officers discriminated against appellees because of their Union activities.

In their motion for summary judgment, appellees contend they are entitled to judgment because as the losing party seeking to vacate the award, the City has the burden to produce a complete record establishing a basis for modifying or vacating the award, and no such record exists. Appellees note that in Article XXIV of the CBA, providing for arbitration of disciplinary actions against police officers, paragraph six of section three provides:

A stenographic transcription of the [arbitration] proceeding shall be made only upon written agreement of the parties prior to commencement of the hearing. Should there be no agreement, the party desiring the transcript may have the transcript made at its sole expense. Hearings may be recorded by audio tape by either party and a copy of the audio recording shall be made available to the other party upon request.


In support of their motion, appellees presented the following summary judgment evidence: (1) a copy of the City's Motion to Continue (in which the City admits that it has the burden to bring forth a complete record of the proceedings giving rise to the adverse award); (2) affidavits of the arbitrators, appellees' counsel, and one of the appellees, all of which state that no complete record of the arbitration proceedings exists; and (3) a copy of the CBA. In support of its argument, appellees cite Eurocapital Group Ltd. v. Goldman Sachs & Co., 17 S.W.3d 426, 429 (Tex. App.-Houston [1st Dist.] 2000, no pet.); Kline v. O'Quinn, 874 S.W.2d 776, 790-91 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (op. on motions for reh'g); and Atrium Westwood VIII Venture v. Barrick Westwood Ltd. P'ship, 693 S.W.2d 699, 700-01 (Tex. App.-Houston [14th Dist.] 1985, no writ). We agree that these cases support appellees' argument that the City had the burden to bring forth a complete record establishing a basis for vacating or modifying the award. (19) Without a record, we presume that adequate evidence was presented to support the arbitrator's award. (20) The burden is on the City to establish that the arbitrators exceeded their authority; the City has not met its burden. The record before us does not include any evidence that the arbitrators exceeded their authority. We overrule the City's first issue and affirm the trial court's order confirming the arbitration award.

Attorneys' Fees

In its second issue, the City contends the trial court erred in awarding attorneys' fees to appellees because the CBA contains no provision authorizing the award of attorneys' fees. Appellees argue that "[w]here the CBA is silent, the arbitrator is presumed to have authority if it is necessarily implied by the authority to address the subject matter." The trial court's December 13, 2005 order granting appellees attorneys' fees notes that the City requested relief under the Declaratory Judgment Act and that appellees' request for attorneys' fees was also based on the Declaratory Judgment Act. (21) The order notes that the following cases "concerning the Declaratory Judgment Act" support appellees' request for attorneys' fees: Tex. Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex. 1995); Farnsworth v. Deaver, 147 S.W.3d 662 (Tex. App.-Amarillo 2004, no pet.); Agan v. Comm'rs Court of Titus Co., 922 S.W.2d 640 (Tex. App.-Texarkana 1996), aff'd in part, rev'd in part, 940 S.W.2d 77 (Tex. 1997); City of El Paso v. Crum Const. Co., 864 S.W.2d 153 (Tex. App.-El Paso 1993, writ denied); and Knighton v. Int'l Bus. Machs. Corp., 856 S.W.2d 206 (Tex. App.-Houston [1st Dist.] 1993, writ denied).

Although the cases cited in the trial court's December 13, 2005 order "concern" the Declaratory Judgment Act, the only case that involves arbitration is City of El Paso, and it is inapposite. (22) This Court has held that there is "no basis for recovery of attorneys' fees in a successful defense against an action to vacate an arbitration award." (23) In Int'l Bank of Commerce-Brownsville, we also rejected the argument (apparently relied on by the trial court in this case) that a party is entitled to attorneys' fees because it sought a declaratory judgment from the trial court. (24) Because we conclude the trial court erred in awarding appellees attorneys' fees, we sustain the City's second issue. (25)

Conclusion

We modify the trial court's judgment to delete the trial court's award of $40,000.00 in additional attorneys' fees for enforcing the arbitration award, plus the additional attorneys' fees for appealing to this Court, and for potentially appealing to the supreme court. (26) As modified, we affirm the trial court's judgment confirming the arbitration award.


LINDA REYNA YAÑEZ, Justice








Memorandum opinion delivered and filed

this the 27th day of September, 2007.

1. Appellees are police officers (or former officers) for the City of Weslaco. At the time of the arbitration, they were members of the Weslaco Municipal Police Union ("the Union"), then the bargaining agent for Weslaco police officers.

2. The applicable CBA was in effect from October 1, 1997, through September 30, 1999.

3. Emphasis in original.

4. The arbitration panel awarded monetary damages to appellees in the following amounts: (1) $10,170 to Baudelio Castillo, (2) $4,000 to Adan Sanchez, (3) $2,500 to Jose Angel Rodriguez, (4) $2,500 to David Gamez, and (5) $4,000 to "Bruce" [Brent] Kennedy.

5. See Tex. Loc. Gov't Code Ann. §§ 143.001-.363 (Vernon 1999 & Supp. 2006).

6. Houston Lighting & Power Co. v. Int'l Bhd. of Elec. Workers, Local Union No. 66, 71 F.3d 179, 181 (5th Cir.1995).

7.
Id. at 182 (quoting Delta Queen Steamboat Co. v. Dist. 2 Marine Eng'rs Beneficial Ass'n, 889 F.2d 599, 602 (5th Cir. 1989)).

8. Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 1325 (5th Cir.1994) (citation omitted).

9.
Delta Queen Steamboat Co. v., 889 F.2d 599 at 602.

10.
Id.

11.
Id.

12.
Cartwright v. Cologne Prod. Co., 182 S.W.3d 438, 443 (Tex. App.-Corpus Christi 2006, pet. denied) (citing Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001) (per curiam); Garcia v. Comm'rs Court, 101 S.W.3d 778, 784 (Tex. App.-Corpus Christi 2003, no pet.)).

13. Id. (citing McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (per curiam)).

14. Id. (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 204 (Tex. 2001); Garcia, 101 S.W.3d at 784).

15. Id.
(citing Lehmann, 39 S.W.3d at 195; Garcia, 101 S.W.3d at 784).

16. Id.
(citing Lehmann, 39 S.W.3d at 195; Garcia, 101 S.W.3d at 784).

17.
See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997).

18.
See First Nat'l Bank v. DeVillagomez, 54 S.W.3d 345, 348 (Tex. App.-Corpus Christi 2001, pet. denied).

19. See GJR Mgmt. Holdings, L.P. v. Raus, 126 S.W.3d 257, 263 (Tex. App.-San Antonio 2003, pet. denied); Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264, 267 (Tex. App.-Houston [14th Dist.] 1995, no pet.).

20. Anzilotti, 899 S.W.2d at 267; Kline v. O'Quinn, 874 S.W.2d 776, 783 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (holding that without a transcription of the arbitration proceedings, we must presume adequate evidence to support the award); House Grain Co. v. Obst, 659 S.W.2d 903, 906 (Tex. App.-Corpus Christi 1983, writ ref'd n.r.e.) (same).

21.
See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997) (providing that a court may award costs and reasonable and necessary attorneys' fees in proceeding under Declaratory Judgment Act).

22. The court in City of El Paso held that municipal corporations may be held liable for attorneys' fees in declaratory judgment actions. City of El Paso v. Croom Const. Co., Inc., 864 S.W.2d 153, 155 (Tex. App.-El Paso 1993, writ denied).

23. Int'l Bank of Commerce-Brownsville v. Int'l Energy Dev. Corp., 981 S.W.2d 38, 54 (Tex. App.-Corpus Christi 1998, pet. denied) (rejecting trial court's award of additional attorneys' fees in arbitration award under the FAA); see also Perry Homes v. Cull, 173 S.W.3d 565, 574 (Tex. App.-Ft. Worth- 2005, pet. granted) (noting a trial court may not add post-arbitration attorneys' fees to the arbitration award); Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 436 (Tex. App.-Dallas 2004, pet. denied) (noting, in reviewing arbitration award under TAA, that "If an arbitration award includes an award of attorneys' fees, a trial court may not award additional attorney fees for enforcing or appealing the confirmation of the award, unless the arbitration agreement provides otherwise."); Cooper v. Bushong, 10 S.W.3d 20, 26 (Tex. App.-Austin 1999, pet. denied) (noting, in challenge to arbitrator's decision pursuant to the TAA, that absent evidence to support modification of arbitrator's award, a court must confirm the award).

24. See Int'l Bank of Commerce-Brownsville, 981 S.W.2d at 54.

25. We note that although the arbitration award is silent as to pre- and post-judgment interest and costs, appellees' pleadings include a request for the award of interest and costs. The trial court's December 13, 2005 order awards pre- and post-judgment interest to appellees and adjudges all costs against the City. The City does not challenge the trial court's award of interests and costs, and accordingly, those elements of the trial court's judgment remain intact.

26. See Crossmark, 124 S.W.3d at 437.