Judge Javier Alvarez provided a split decision on who is responsible for paying the legal fees associated with the lawsuit regarding whether the stormwater utility was legally delegated by the city to Public Service Board, and both sides are claiming victory.

The decision came after a hearing Tuesday, and was issued in written form in a final judgment signed Wednesday. Editor's note: The date of the hearing was reported incorrectly and corrected Aug. 22, 2008.

The judgment puts in writing a denial of the claim by civic activist Ray Gilbert and two other plaintiffs that the city unlawfully delegated the stormwater utility to the PSB. Alvarez previously had ruled on the issue without a hearing.

On the issues argued before Alvarez Tuesday, involving who was responsible for paying legal costs, Alvarez made two decisions. He placed a "poison pill" of sorts in the case of an appeal – if the plaintiffs appeal and lose, they owe the PSB $25,000 in legal costs, and if they appeal to the state Supreme Court and lose, it's another $15,000. But he also ruled against the PSB request that the plaintiff pay $44,000 in legal fees the agency spent defending itself from the lawsuit.

The PSB issued a news release emphasizing the previously decided issue that the delegation was legal, and the imposition of fees in the case of a failed appeal. It did not mention the denial of legal fees to date.

"The Final Order granted the City's request for a declaratory judgment stating: (i) the City validly exercised its authority pursuant to Subchapter C. of Chapter 402 of the Texas Local Government Code, adopting Ordinance No. 16668 and creating a municipal drainage utility, and (ii) Ordinance No. 16668 lawfully delegated operation and management of the City's municipal drainage utility to the El Paso Water Utilities Public Service Board pursuant to Chapter 1502 of the Texas Government Code," stated the news release, which was titled "COURT: STORMWATER SYSTEM MANAGEMENT WAS LAWFULLY DELEGATED TO PSB."

"The Court further ordered that in the event of an appeal of this Final Judgment, the Defendants, the City of El Paso and Public Service Board, are entitled to an equitable and just award of attorney's fees in the amount of $25,000.00 for appeal to the 8th Court of Appeals and $15,000.00 for appeal to the Texas Supreme Court."

Not surprisingly, Gilbert focused on denial of legal fees to date.

"We did not believe this fee was justified in a case where a Citizen brings a action like this against Government if it was not frivolous. No one would be able to seek good Government if all was at risk," he wrote in an e-mail to Newspaper Tree.

Gilbert wrote that he knew the initial judgment would go against him and that he and his co-plaintiffs planned an appeal "as soon as possible."

"I feel he only wants the higher Courts to make the decision in this most important issue. This sets law and will probably go all the way to the Supreme Court one way or the other," Gilbert wrote.

Ed Archuleta, CEO of the El Paso Water Utilities, which is operated by the PSB, said the PSB "thought it (the lawsuit) was frivolous from the get-go. We had done extensive legal research. It's unfortunate we have to spend so much time and money on these things."

Of Gilbert's vow to appeal, Archuleta said, "that's up to them, but we feel confident. If that’s what they want to do, spend money … we feel confident on our legal approach."