BROWNSVILLE — A judge Tuesday reset former City Commissioner Robert Leftwich’s challenge to Harlingen’s 4-cent tax hike after he found Mayor Chris Boswell didn’t appear as a witness because his subpoena was improperly served.

Associate Judge Louis Sorola reset the hearing for Oct. 29 in the case in which Leftwich is requesting a temporary restraining order to nullify the Harlingen City Commission’s vote on last month’s 4-cent property rate tax increase.

Tonight, city commissioners are set to meet in closed session to discuss the case in which Leftwich argues their vote is invalid because officials violated a new amendment to the Texas Open Meetings Act requiring governments to give residents a chance to speak out on issues before they go to a vote.

House Bill 2840, filed by state Rep. Terry Canales, D-Edinburg, became law Sept. 1.

At yesterday’s hearing in 103rd state District Court, Ron Lozano, the attorney representing Leftwich, told Sorola the hearing couldn’t proceed without Boswell’s testimony.

After the contested Sept. 4 vote, Boswell has said he gave residents a chance to speak up before commissioners approved the first reading of an ordinance boosting the property tax rate from about 58 cents to 63 cents per $100 valuation.

“Obviously, we object to the whole hearing,” City Attorney Ricardo Navarro told Sorola.

During the hearing, attorney Robert Drinkard argued Lozano failed to personally present Boswell with the subpoena Monday afternoon while not giving the mayor enough time to respond to the court order to appear as a witness.

“The mayor was never personally served with the subpoena,” Drinkard told Sorola. “He has no obligation to be here.”

Sorola granted Drinkard’s request to quash Boswell’s subpoena.

“If he was served yesterday, there’s no way he could be here today,” Sorola said, referring to the subpoena served Monday. “It’s only fair the party receives notice and has an adequate amount of time to prepare testimony.”

Drinkard, an attorney in Navarro’s law firm, also argued Boswell’s position as mayor gives him “legislative immunity” to excuse him from testifying.

“You can’t be called to testify about how you voted or what occurred in a meeting,” Drinkard told Sorola.

Drinkard argued Lozano had failed to present Boswell with the subpoena as he prepared Leftwich’s case during the past week.

At the hearing, Leftwich was apparently preparing to play a city-recorded videotape which he argues shows Boswell didn’t give residents a chance to speak on a proposal to boost the tax rate before commissioners voted Sept. 4.

“I feel that the evidence will show the citizens didn’t get their say in the meeting,” Leftwich said after the hearing. “I appreciate the judge’s comment on giving the taxpayers their day in court.”

Yesterday, Sorola was presiding over cases in the absence of state District Judge Janet Leal, whom a court clerk said was “unavailable for personal reasons.”

Mayor’s subpoena delivered to city secretary

After the hearing, Lozano said Billy Lopez followed routine procedure when he presented City Secretary Amanda Elizondo with Boswell’s subpoena.

On Monday afternoon, Lozano sent Lopez to present Boswell and Finance Director Elvia Treviño with subpoenas, ordering them to appear as witnesses during the hearing.

Lopez presented Treviño, who appeared in court, with her subpoena.

In an interview, Lopez said he couldn’t hand-deliver the subpoena to Boswell because the mayor didn’t leave a City Hall meeting.

“I asked for him directly,” Lopez, who said he had served subpoenas for about 20 years, said after the hearing.

However, a City Hall receptionist told him Boswell was in a meeting, Lopez said.

“I was told the mayor was in a meeting and the city secretary was going to meet me outside,” Lopez said, adding he presented Elizondo with Boswell’s subpoena.

“It’s standard procedure that you serve subpoenas on the individual named,” Lopez said. “But in the case of city entities, the city secretary has the power to accept a subpoena on behalf of the mayor.”

First request for TRO denied

On Sept. 16, Leal denied Leftwich’s request for a temporary restraining order aimed at stopping commissioners from voting on the second and final reading of the ordinance boosting the tax rate from about 58 to 63 cents per $100 valuation.

Apparently, city officials had expressed concern the temporary restraining order could prevent commissioners from approving a $47.8 million general fund budget before Monday’s close of the fiscal year. Officials are counting on the tax increase, projected to generate $1.3 million a year, to balance the budget.

During a special meeting Sept. 17, commissioners voted to approve the second and final reading of the ordinance boosting the tax rate from about 58 to 63 cents.

Commissioner Frank Puente cast the lone dissenting vote.