Government Watchdog Ray Gilbert Has Died

Government watchdog Ray Gilbert died on Friday, Nov. 12 according to his family.

He was 82. A cause of death was not given.

For years, Gilbert would attend City Council, Commissioners Court and other government entities’ meetings and try to hold elected officials accountable for their decisions.

“On behalf of our entire family I wish to thank everyone in El Paso who has been so supportive of my father,” Ray E. Gilbert III said regarding his father’s death in a statement released to the media. “He deeply loved the people that make up El Paso.”

On Oct. 13, the 8th Court Of Appeals ruled on an appeal Gilbert filed because he wanted to stop the PSB from imposing and collecting any stormwater fees. Gilbert argued that the City lacked authority to delegate to the PSB powers granted to the City and that the PSB lacked authority to establish or charge drainage fees. He filed a suit in May of 2008.

The City and the PSB won the lawsuit in August of 2008.

The City/PSB wanted him to pay court costs for the initial judgment, but the court wrote it wouldn’t make Gilbert pay “because it may have a chilling effect in the future against anyone who may want to pursue a claim — whatever claim in the future — against the City or the County . . . .”

Chief Justice David Wellington Chew wrote about a citizen’s right to question and sue the government in a footnote attached to the appeals ruling.

“But here, where a citizen is challenging governmental action, I have come to believe that such awards are a denial of the constitutional right to access the courts. I therefore take the rare step of writing this separate footnote to address an issue that also troubled the trial court: Can the award of attorney’s fees have an unconstitutional chilling effect on a citizen’s attempt to challenge governmental action? It appears that the trial judge thought so, for he denied the City’s request for over $44,000 in outside attorney’s fees at the trial level but he did award predetermined appellate fees. I have found no case law discussing the potential chilling effect that an award of appellate attorney fees could have when a citizen is challenging governmental action. As noted above, this Court has upheld the award of predetermined appellate attorney’s fees and the Fourteenth Court of Appeals has rejected the argument that “the predetermined award of attorney’s fees in the event of appeal is unconstitutional as a violation of due process, or as a limitation on the right to access to the courts.” Pullman v. Brill, Brooks, Powell & Yount, 766 S.W.2d 527, 530 (Tex.App.–Houston [14th Dist.] 1988, no writ).

I have, however, come to believe that predetermined awards of appellate fees are objectionable, in general, and especially noisome in cases, like this, where citizens challenge a governmental action. If this were a patently frivolous law suit, I might be less offended; but it is not. And it seems to me abundantly clear from the record that the award of predetermined appellate attorney’s fees had a chilling effect such that Mr. Gilbert was left alone and pro se to pursue his legal contentions.”

In the end, the lower court decided Gilbert was to pay $25,000 for the City/PSB’s attorneys fees if he took the decision to the appeals court, which he did. But once the case went to the appeals court, justice Chew deleted that from the lower court’s decision, relieving Gilbert of the $25,000 burden, though Gilbert still lost the lawsuit.