EDINBURG — A Donna municipal candidate and former city councilman is suing his political rival, alleging the incumbent councilman doesn’t actually live in the city he represents.
Oscar Gonzales, who served as the Donna Place 1 councilman until losing his reelection bid last November, is looking to serve on the council again. He chose to run against Place 4 incumbent Eloy Avila Jr. in the upcoming November election.
Gonzales claims that Avila is ineligible to serve as councilman — or to seek reelection — because he does not reside in Donna. To that end, Gonzales filed a lawsuit against the city, Avila and Donna City Secretary Norma Yañez in an attempt to get Avila knocked off the ballot.
“The Plaintiff seeks a declaratory judgment declaring AVILA ineligible from holding office of City Councilman, Place 4 in Donna; declaring that he should not be listed on the ballot as a candidate for City Councilman … and should he be elected that he not be administered the oath to said office,” reads Gonzales’ first amended petition, in part.
With early voting fast approaching, Gonzales was hoping the judge would expedite the timeline required to make a decision on the matter. As a result, both sides met in court on Monday for a hearing to expedite discovery in the case.
And while Gonzales was present, along with his attorney, Robert J. Salinas, such was not the case with the city of Donna or the other defendants.
Neither Avila nor the city secretary showed up to the hearing. Nor did Donna City Attorney Javier Villalobos. Instead, Villalobos’ brother, Jesus Villalobos, stood in for Javier, saying his brother — who is also the mayor of McAllen — had been delayed while representing that city at a function in Mexico.
As for Avila, the Hidalgo County Precinct 1 employee was seen outside the courthouse just after the hearing ended. Holding a large stack of documents in his arms, Avila said he was carrying out Precinct 1 business and had been advised by Javier Villalobos to not attend the hearing.
Javier Villalobos disputed that slightly when later reached by phone.
“Mr. Avila is not my client, so I can’t advise him,” the city attorney said.
“What I told him is it’s up to him, but he has no reason to show up,” Javier Villalobos said, explaining that under the law, Avila is not obligated to appear until he has officially filed an answer to the suit. The law gives a defendant 20 days to answer after being served.
Whether the absences of Javier Villalobos, Avila and Yañez were coincidental or by design, it nonetheless seems clear that they were, at least in part, a legal strategy — one meant to counter Gonzales’ attempts to speed things along.
“(Gonzales) filed a motion for expedited discovery and, well, our position is it doesn’t matter because we requested a jury trial. It doesn’t matter how fast we can do discovery, we’re not going to trial,” Javier Villalobos said.
The city attorney was alluding to how the COVID-19 pandemic has thrown a wrench into the workings of the judicial system over the last year and a half.
At one point in 2020, all trials — both criminal and civil — were put on indefinite suspension. And though court activity has picked up in recent months thanks to the availability of several safe COVID-19 vaccines, court business has not yet entirely returned to normal.
Of the hearings and other matters being heard, criminal cases have been taking precedent given the constitutional rights of defendants who may be in custody while they await their day in court.
It was a strategy that appeared to work, as visiting Judge Federico “Fred” G. Hinojosa expressed concerns over expediting the case timeline before Avila has had a chance to respond.
“I have no problem with shortening the discovery period for the city. My concern is toward Mr. Avila,” Hinojosa said before asking the attorneys what the deadline was for Avila to officially respond.
In response, Salinas, the attorney representing Gonzales, tried one last time to persuade the judge to move forward anyway.
“Your honor, the only thing we can say is he could have been here. If the court wants to give Mr. Avila, or afford a little more time, time is of the essence,” Salinas said.
But a moment later, Salinas conceded that a trial could wait until after the election, since the Donna city charter provides for the removal of an elected official should they be found ineligible.
“That’s the whole problem. There’s no reason to do all of this when he’s saying he can do it after the election,” responded Jesus Villalobos, adding that it’s already too late to remove Avila’s name from the ballot.
“We maintain, your honor, that we’re entitled to seek a declaratory judgment that will settle the issue and the controversy … that exists now,” Salinas said regarding the question of whether or not Avila resides within Donna city limits.
And ultimately, that’s the question that Gonzales wants answered, too — and what he wants the public to know.
“Everybody in Donna knows that Eloy Avila doesn’t live inside the city, nor pay city taxes,” Gonzales said after the hearing.
“How can he hold an office if he doesn’t live inside the city?” he said.
In the end, the judge decided to err on the side of giving Avila sufficient time to respond to the lawsuit. Hinojosa reset the hearing until Oct. 20. Early voting begins on Oct. 18.