County Court-at-Law Judge Javier Alvarez today tossed out Ray Gilbert’s lawsuit challenging the legality of the having the water utility’s Public Service Board operate El Paso’s new stormwater utility.

Mayor John Cook and other City Council members said they weren’t surprised by the ruling.

Neither was Gilbert.

“I expected this decision; it is no surprise,” Gilbert said. “Now we take it to the court that deals with the law.”

He said the decision will be appealed to El Paso’s Eighth Court of Appeals and will probably reach the Texas Supreme Court.

At issue is not whether City Council could establish a stormwater utility in December but whether the state law allowed the city to delegate the authority to operate it to the PSB.

Gilbert and two other plaintiffs represented by attorney Bret Duke contended that the law under which the PSB was organized in the 1950s does not permit that utility with its five-member board from operating a second utility.

In its response to Gilbert’s suit, the city contends that the Legislature clearly intended for cities to be able to establish stormwater utilities and allowed cities to choose how to do it.

“What I am surprised about is that the decision came down today, the last day to file documents in the case,” Gilbert said. “I thought he would at least wait a week to rule.

“There was a lot of law to look at that the appellate court will not look at.”

The lawsuit was not argued in court because, Gilbert said, that would slow down the decision.

Instead, Gilbert, accountant Joe A. Dominguez and Dr. Charles Cavaretta sought a decision by the judge based only on the arguments filed with him in writing.

Cook said the Austin law firm the PSB hired to represent the city in the case was confident the ruling would go their way.

“Our attorneys were telling us that the other side’s filings were not very good,” Cook said. “They didn’t do a very good job of filing their case and we were pretty sure we would win the case on summary judgment the first time out.”

In a second challenge to the PSB’s management of the stormwater utility, a group of citizens has had a petition drive going for weeks to put an initiative before City Council calling on the city to assume control of the utility.

Those petitions, which require the signatures of about 2,500 registered voters, may be filed next week.

If City Council rejects the initiative, the organizers intend to conduct a second petition drive to add the issue on the ballot this November as a special initiative election.

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To reach David Crowder, write to dcrowder@epmediagroup.com or call (915) 351-0605.

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