Why Me?

San Antonio officials didn't violate violate a hauler's legal rights by singling it out for enforcement and ignoring other violators, according to a Texas appeals court.

Texas Waste Systems Inc. (TWS) collects trash in San Antonio. Under the city code, haulers who do business within the city limits must obtain an annual permit for each truck they operate. Permit fees start at $150 for a small truck and go up to $2,250 for a large truck.

In 2005, the city sued TWS to collect delinquent permit fees totaling $211,500 for 2003 through 2005, plus attorney's fees. TWS answered by alleging discriminatory enforcement: “Plaintiff has selectively enforced the City Code … against Defendant while refusing to enforce the Code against other waste disposal companies operating within the [city] …”

At trial, David Lopez, a financial manager in the city's environmental services department, testified that he and Melvin Kemp, TWS's general manager, worked out a payment arrangement in March 2005. But when TWS, blaming a “cash flow problem,” made only one payment, Lopez referred TWS to the city attorney for prosecution.

Lopez, who denied knowing that TWS is a minority-owned business, acknowledged that no lawsuits had been filed against any other delinquent haulers whose balances ranged from $1,500 to $292,000, but also noted that the latter amount had since been paid in full. He insisted that the decision to file suit was based purely on the amount of money owed.

Kemp's testimony conceded a delinquency on the permit fees, but he denied agreeing to a payment plan. When asked why the city sued TWS and not other waste haulers, he admitted, “We do owe more money than the rest of them.” However, he also charged that TWS had been “profiled” by the city, as TWS was not the only hauler with unpaid permit fees. Kemp's meandering testimony also included a statement that directly contradicted his company's legal claim when he said that TWS's minority status “wasn't a factor in the case.”

Nevertheless, the trial judge ruled in favor of TWS based on its discriminatory enforcement defense. He found that the city, by selectively enforcing the code against minority-owned TWS, deprived TWS of its constitutional right to equal protection.

On appeal, the decision was reversed, and judgment was entered against TWS in the amount of the unpaid fees plus interest and attorney's fees and costs.

Under Texas law, a claim of discriminatory enforcement depends on whether a defendant, among others “similarly situated and committing the same acts,” has been singled out for prosecution by a government agency on the basis of race, religion or other impermissible considerations or to prevent the exercise of constitutional rights.

“The evidence was uncontradicted that TWS was delinquent on its payment to the City, and that TWS owed the most money to the City,” the appeals court stated. “There was no evidence that the City discriminated against TWS … nor … any evidence that the City was even aware of TWS's status as a minority-owned business.”

[City of San Antonio v. Texas Waste Systems, Inc., No. 04-06-00481-CV, Tex.App.Dist.4, July 18, 2007]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.