ACCEPTED 01-15-00687-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 8/28/2015 5:15:06 PM CHRISTOPHER PRINE CLERK
No. 01-15-00687-CV _______________________________________________ FILED IN 1st COURT OF APPEALS In the Court of Appeals for the HOUSTON, TEXAS First District of Texas at Houston 8/28/2015 5:15:06 PM _______________________________________________ CHRISTOPHER A. PRINE Clerk
ANNISE D. PARKER, MAYOR, ANNA RUSSELL, CITY SECRETARY, AND CITY OF HOUSTON, Appellants, V.
DAVID B. WILSON, Appellee. _______________________________________________
On Appeal from the 270th Judicial District Court Harris County, Texas Trial Court Case No. 2015-39706 ______________________________________________________________
Response to Notice to Show Court’s Jurisdiction ______________________________________________________________
DONNA L. EDMUNDSON Kathleen Hopkins Alsina City Attorney Senior Assistant City Attorney State Bar No. 09977050 JUDITH L. RAMSEY Patricia L. Casey Chief, General Litigation Senior Assistant City Attorney Section State Bar No. 03959075 CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby, Fourth Floor Houston, Texas 77002 832.393.6491 (Telephone) 832.393.6259 (Facsimile) kate.alsina@houstontx.gov pat.casey@houstontx.gov
Attorneys for Appellants Table of Contents
Page
Index of Authorities..................................................................................iii
Background................................................................................................ 1
Argument and Authority........................................................................... 5
I. The July 28 Order is a mandatory temporary injunction. .............. 5
II. A suit for a writ of mandamus, alone, does not entitle a plaintiff to an immediate mandatory injunction. ............................ 9
III. This appeal is controlled by Qwest. ............................................... 12
Certificate of Compliance ........................................................................ 16
Certificate of Service ............................................................................... 16
ii Index of Authorities
Page(s)
Cases
Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) .................................................................. 9
Bd. of Prison Comm’rs v. Binford, 259 S.W. 169 (Tex. Civ. App.—Galveston 1924, no writ) .................. 11
Brines v. McIlhaney, 596 S.W.2d 519 (Tex.1980) ................................................................... 7
City of Houston v. Downstream Envtl., L.L.C., No. 01-13-01015-CV, 2014 WL 5500486 (Tex. App.—Houston [1st Dist.] Oct. 30, 2014, pet. abated) ............................................. 8, 14
CMH Homes v. Perez, 340 S.W.3d 444 (Tex. 2011) .................................................................. 6
Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808 (Tex.1992) ................................................................... 7
Griffin v. Wakelee, 42 Tex. 513 (1874) ........................................................................... 9, 10
Helix Energy Solutions Grp. v. Howard, 452 S.W.3d 40 (Tex. App.—Houston [14th Dist.] 2014, no pet.)................................................................................. 8, 11, 12, 14
In re Hardwick, 426 S.W.3d 151 (Tex. App.—Houston [1st Dist.] 2012, no pet.)......................................................................................... 6, 7, 11
In Re Woodfill, --- S.W.3d ---, 2015 WL 4498229 (Tex. July 24, 2015) (per curiam) .................................................................................................. 2
iii Peeples v. Nagel, 137 S.W.2d 1064 (Tex. Civ. App.—Galveston 1940, writ dism’d judgm’t cor.) ........................................................... 11
Plant Process Equip., Inc. v. Harris, 579 S.W.2d 53 (Tex. Civ. App.—Houston [14th Dist.] 1979, no writ) .............................................................................................. 8, 9
Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334 (Tex. 2000) .................................................... 6, 7, 13, 14
Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012) .................................................................... 5
Tobin v. Serna, 277 S.W. 2d 176 (Tex. App.—San Antonio 1955, writ ref’d) .............. 11
Wyly v. Pres. Dallas, 165 S.W.3d 460 (Tex. App.—Dallas 2005, no pet.) ...................... 11, 13
Statutes
Tex. Civ. Prac. & Rem. Code § 6.002 ........................................................ 5
Tex. Civ. Prac. & Rem. Code § 51.014 ............................................ 5, 6, 12
Other Authorities
City of Houston Charter, Chapter VII-a § 2 ............................................. 3
City of Houston Charter, Chapter VII-a § 3 ............................................. 3
City of Houston Charter, Chapter VII-b § 2(a) ......................................... 3
Tex. R. App. P. 29.2 ................................................................................... 5
Tex. R. Civ. P. 680 ................................................................................... 11
Tex. R. Civ. P. 687 ............................................................................... 6, 13
Tex. R. Civ. P. 694 ..................................................................................... 9
iv The Appellants, Annise D. Parker, Mayor, Anna Russell, City
Secretary, and City of Houston (together “the City”) respectfully file this
response to the Court’s Notice of August 19, 2015 requesting briefing on
the question of the court’s jurisdiction over the interlocutory order of
July 28, 2015.
Background
On May 28, 2014, the Houston City Council voted to pass
Ordinance No. 2014-530, known as the Houston Equal Rights
Ordinance, also referred to as “HERO.” The equal rights ordinance
prohibits discrimination based on an individual’s sex, race, color,
ethnicity, national origin, age, familial status, marital status, religion,
disability, sexual orientation, genetic information, gender identity, or
pregnancy in city contracts, public accommodations, private employment
(excluding religious organizations), city services, city employment and
housing. R.0114-31.1 The Texas Supreme Court has ordered that the
equal rights ordinance be submitted to the voters of the City of Houston
1 The Clerk’s Record in this appeal has not yet been filed. However, in their Response to Wilson’s Motion to Dismiss Appeal filed August 14, 2015, Appellants attached bates-stamped certified copies of the documents referenced in their Response and cite to them as R.__ [bates number]. Those bates-stamped documents can be found in the Appendix to Appellants’ August 14, 2015 Response. in the November 2015 election. In Re Woodfill, --- S.W.3d ---, 2015 WL
4498229 (Tex. July 24, 2015) (per curiam).
The equal rights ordinance was officially published on June 3,
2014. The only place in the City Code of Ordinances where “gender
identity” is defined is in the equal rights ordinance. There is no
definition of or reference to “gender identity” in the Houston City
Charter.
The equal rights ordinance was the subject of a timely-filed
petition for a referendum to repeal the ordinance, which eventually was
the subject of a jury trial2 and a petition for writ of mandamus to the
Texas Supreme Court.3 During the same time period, Wilson was
circulating his own separate petitions for a definition of “gender
identity” that was contrary to the definition in the equal rights
ordinance. R.0028. Wilson’s goal was obvious—to repeal the part of the
equal rights ordinance that defines “gender identity.”
On July 9, 2015, over a year after the equal rights ordinance was
adopted, Wilson finally presented his petition to the City Secretary.
2Woodfill, et al. v. Anna Russell, City Secretary, et al., No. 2014-44974, in the 152nd District Court, Harris County, Texas. 3 In re Woodfill, --- S.W.3d ---, 2015 WL 4498229 (Tex. July 24, 2015).
2 R.0157. Under the City Charter, a referendum on an ordinance must be
filed within 30 days of the day the ordinance was published and must
conform to specific “form and manner” requirements, including a
requirement that there must be a specified circulator’s affidavit on
every page.4 Wilson’s petition did not conform to those requirements
and therefore the City Secretary did not have a ministerial duty to
count the signatures. The City Secretary rejected the petition as
untimely and not in compliance with the City Charter’s requirements
for a referendum petition. R.0157.
Wilson alleged his petition was a “charter amendment” instead of
a referendum petition. The next day he filed in the district court his
“Original Petition for Mandamus.” R.0001. Wilson originally pled for
“mandatory injunctive relief to require each of the Respondents to fulfill
their ministerial duties” and in his prayer sought “all other and further
declaratory and injunctive relief to which Petitioners may show
themselves to be justly entitled.” R.0010 (emphasis added).
Immediately, even before the City was served with the Petition, it was
served with a “Notice of Hearing” setting a “Motion to Mandamus” for
4 City of Houston Charter, Chapter VII-a §§ 2, 3; VII-b § 2(a).
3 hearing on Monday, July 13, 2015 at 9:00 a.m., three days after the
petition had been filed. R.0012.6.
At the July 13 hearing, the Court sustained the City’s objection to
proceeding with the action with insufficient notice. Wilson amended his
lawsuit and immediately reset the mandamus to July 24, 2015. R.0053.
In the amended petition, Wilson dropped his claims against the City
and the Mayor, and asserted a claim for declaratory relief.5 R.0038.
Significantly, he also removed the request for mandatory injunctive
relief. R.0042.
Twelve days after the original petition was filed, the trial judge
heard Wilson’s “mandamus” petition. Wilson offered no evidence at the
hearing, but asked the court to grant immediate emergency relief.
R.0094. On July 28, 2015, the trial court entered an order that
Anna Russell in her capacity as City Secretary for the City of Houston shall count and certify to Houston City Council the number of valid signatures contained in the petition submitted by Plaintiff on or before 30 (thirty) days from the date the same were filed, namely July 9, 2015.
R.0180.
5 They were still named as parties but the only claims in the body of the petition were against the City Secretary.
4 The City unsuccessfully sought clarification of the Order and an
extension of time to comply, based on Ms. Russell’s affidavit that she
did not believe that she and her staff would be able to timely comply.
R.0187.
The City timely filed a notice of interlocutory appeal and
superseded the order. Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(4) and
6.002; Tex. R. App. P. 29.2.
After this Court denied Wilson’s motion to dismiss the City’s
appeal, the Court ordered the City to demonstrate the basis of the
Court’s jurisdiction over the interlocutory appeal.
Argument and Authority
I. The July 28 Order is a mandatory temporary injunction.
The basis for this Court’s jurisdiction is that the July 28, 2015
order is a temporary injunction, appealable as an interlocutory order
under Texas Civil Practice and Remedies Code section 51.014(a)(4).
Ordinarily, Texas appellate courts have jurisdiction only over final
judgments. Rusk State Hosp. v. Black, 392 S.W.3d 88, 92 (Tex. 2012). An
exception to this general rule exists when a statute authorizes an
interlocutory appeal. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex.
5 2011). The Civil Practice and Remedies Code provides for an
interlocutory appeal from an order that “grants or refuses a temporary
injunction or grants or overrules a motion to dissolve a temporary
injunction as provided by Chapter 65.” Tex. Civ. Prac. & Rem. Code
§ 51.014(a)(4). A temporary injunction is not identified by its label, but
by the nature of its “character and function.” Qwest Commc’ns Corp. v.
AT&T Corp., 24 S.W.3d 334, 338 (Tex. 2000).
Under Rule 687, a temporary injunction may be either prohibitive
or mandatory—it may order a party to “desist and refrain from the
commission or continuance of the act enjoined,” or to “obey and execute
such order as the judge has seen proper to make.” Tex. R. Civ. P. 687; In
re Hardwick, 426 S.W.3d 151, 159 (Tex. App.—Houston [1st Dist.] 2012,
no pet.) (“An injunction may be either prohibitive, forbidding particular
conduct, or mandatory, requiring particular conduct.”). The trial court’s
order here was mandatory. It ordered that the City Secretary “shall
count and certify to the Houston City Council the number of valid
signatures.” R.0180. Although the order does not acknowledge it is a
mandatory temporary injunction, the Texas Supreme Court has long ago
“rejected the notion that ‘matters of form control the nature of the order
6 itself.’” Qwest, 24 S.W.3d at 336 (quoting Del Valle Indep. Sch. Dist. v.
Lopez, 845 S.W.2d 808, 809 (Tex.1992)); see also, e.g., In re Hardwick,
426 S.W.3d at 159 (citing Lopez, 845 S.W.2d at 809) (“Matters of form do
not control whether an order is an injunction; rather ‘it is the character
and function of an order that determine its classification.’”).
In Qwest, the Supreme Court held that a trial court’s interlocutory
order that compelled Qwest to undertake certain monitoring and notice
provisions when conducting its operations was a temporary injunction.
The Court explained:
In Del Valle Independent School District v. Lopez, we rejected the notion that “matters of form control the nature of the order itself—it is the character and function of an order that determine its classification.” 845 S.W.2d 808, 809 (Tex. 1992). We reasoned that if errors in the form of the order determined the order’s status, then those errors would deny review of the very defects that render the order void. See Del Valle, 845 S.W.2d at 809–10; Brines v. McIlhaney, 596 S.W.2d 519, 523 (Tex.1980).
Qwest, 24 S.W.3d at 336.
The Fourteenth Court of Appeals’ recent decision in Helix
similarly found that an interlocutory order requiring a maritime
employer to make payments to a seaman was a temporary injunction,
even though it was styled as an order granting a motion to compel.
7 Helix Energy Solutions Grp. v. Howard, 452 S.W.3d 40, 44 (Tex. App.—
Houston [14th Dist.] 2014, no pet.). Justice Christopher’s comment in
that case applies equally here: “[Plaintiff] has not cited, and we have
not found, any provision of Texas procedural law authorizing a litigant
to obtain an interlocutory order on the merits from a state court while
avoiding both the rules governing summary judgments and those
governing injunctive relief.” Id.
This Court similarly has held that an order that was labeled an
agreed order, but that “functions as a temporary injunction” was
appealable as a temporary injunction for purposes of the Court’s
interlocutory appellate jurisdiction. City of Houston v. Downstream
Envtl., L.L.C., No. 01-13-01015-CV, 2014 WL 5500486, at *5 (Tex.
App.—Houston [1st Dist.] Oct. 30, 2014, pet. abated). See also Plant
Process Equip., Inc. v. Harris, 579 S.W.2d 53, 54-55 (Tex. Civ. App.—
Houston [14th Dist.] 1979, no writ) (holding that the order labeled
“temporary restraining order,” which would not have been appealable,
was in fact a temporary injunction because its “force and effect … [were]
8 indistinguishable from that of a temporary injunction, [and] the order is
appealable.”).6
II. A suit for a writ of mandamus, alone, does not entitle a plaintiff to an immediate mandatory injunction.
A trial court writ of mandamus is a civil action subject to the rules
of procedure just as any other civil suit. See Anderson v. City of Seven
Points, 806 S.W.2d 791, 792 (Tex. 1991). The only rule in the Texas
Rules of Civil Procedure that explicitly addresses a mandamus
differently from any other suit says only that it may not be granted on ex
parte hearing. Tex. R. Civ. P. 694. There are no provisions in the rules of
civil procedure for immediate, emergency relief in a suit seeking a trial
court mandamus.
In Anderson, the Texas Supreme Court cited to Griffin v. Wakelee,
an 1874 Texas Supreme Court decision that clearly explains that the
writ of mandamus a district court may award in Texas is not a common
law mandamus that allows immediate relief. Griffin v. Wakelee, 42 Tex.
513 (1874) (cited in Anderson, 806 S.W.2d at 792 n.1). It is “different in
6 This order is not a temporary restraining order because the relief granted “does more than preserve the status quo during the ten day span of a temporary restraining order.” Harris, 579 S.W.2d at 54. In effect, it grants all relief Wilson sought.
9 almost every respect” from a common law mandamus proceeding, which
“did not partake of the nature of a suit between parties, but the relief
sought was granted immediately by and through means of the writ
itself.” Id. at 516. The Court explained the procedure that must be
followed in a district court mandamus, and its holding, cited by
Anderson, is worth quoting in full:
The relief sought to be effected through its aid is asked, as in any other case, by a petition alleging the facts by virtue of which it is claimed, with a prayer for such judgment as the facts warrant. The defendant is served and required to answer as in any other suit, and the case proceeds to trial and judgment as any of other action, and there is no distinguishable difference in principle in the course of proceeding and result attained in it and any other suit in the district court. When the judgment is rendered by the court, unless superseded or suspended by writ of error or appeal, it is carried into effect by the appropriate writ for this purpose, termed in the statute a writ of mandamus, from analogy, no doubt, drawn from the nature of the matters complained of in the petition, to cases in which relief is granted by this writ at common law. Plainly, then, unless we discard principles, and are controlled merely by names, it must be treated and regarded as a judicial writ, based upon and issuing by virtue of, and to carry into effect, a judgment of the district court.
Id.
A party who files a petition for writ of mandamus in a district
court and wants immediate temporary relief has the same burden and
must follow the same procedures as in any other suit. He must seek
10 temporary injunctive relief under Rules 680-693 of the Texas Rules of
Civil Procedure. See Tobin v. Serna, 277 S.W. 2d 176, 177 (Tex. App.—
San Antonio 1955, writ ref’d); Tex. R. Civ. P. 680 et seq.7 Just as
mandatory venue provisions may not be evaded merely by artful
pleading, so the requirements for obtaining a temporary injunction may
not be evaded by calling it something else. See, e.g., Helix, 452 S.W.3d at
44 (holding order “to compel” payments was in reality a mandatory
temporary injunction); In re Hardwick, 426 S.W.3d at 161 (holding
venue determined by dominant purpose of suit, not by how parties
describe cause of action).
In his Original Petition for Writ of Mandamus, Wilson pled for
injunctive relief. R.0001-10. Although he dropped the words “injunction”
from his later pleadings, the relief he requested remained the same.
R.0038-44. The specific action the trial court ordered—that the City
7 See also, e.g., Wyly v. Pres. Dallas, 165 S.W.3d 460, 462 (Tex. App.—Dallas 2005, no pet.) (interlocutory appeal in suit seeking temporary injunction and writ of mandamus); Peeples v. Nagel, 137 S.W.2d 1064, 1066, 1067 (Tex. Civ. App.— Galveston 1940, writ dism’d judgm’t cor.) (in suit seeking temporary injunction, mandatory injunction, and mandamus, trial court abused its discretion in not having preserved subject matter of suit by issuing temporary injunction); Bd. of Prison Comm’rs v. Binford, 259 S.W. 169 (Tex. Civ. App.—Galveston 1924, no writ) (“[W]e are of the opinion that the trial court had authority or jurisdiction to hear and determine the suit for mandamus, and pending such hearing, had authority to issue a temporary injunction for the purpose before stated [to preserve the status quo].”).
11 Secretary “count and certify” on a short deadline—is a classic example of
a mandatory temporary injunction. See Helix, 452 S.W.3d at 44.
Wilson’s live petition on the date of the hearing was entitled “First
Amended Petition for Writ of Mandamus.” The order purports to be an
order granting “Plaintiff’s Application for Writ of Mandamus.” R.0180.
But the Order was not the result of a summary judgment proceeding, a
trial on the merits, or even an evidentiary hearing. There are still
pending the claims for a declaratory judgment and for writ of
mandamus against the Mayor and the City Council members. R.0207-
14. It was clearly an interlocutory order, and in form and effect is a
temporary injunction, appealable under Texas Civil Practice and
Remedies Code § 51.014(a)(4).
III. This appeal is controlled by Qwest.
The City recognizes that an order of mandamus is not listed in the
Civil Practice and Remedies Code as an appealable interlocutory order.
Tex. Civ. Prac. & Rem. Code § 51.014. In cases where parties have
sought a district court writ of mandamus along with a temporary
injunction, the appellate courts have found they do not have
interlocutory jurisdiction over an order on the writ of mandamus. See,
12 e.g., Wyly, 165 S.W.3d at 462. Here, however, Wilson obtained an
interlocutory order on short notice and without a trial on the merits,
summary judgment proceeding, or even evidentiary hearing. If Wilson is
allowed to escape interlocutory review of this order by simply calling it
an order on a writ of mandamus rather than what it is in form and
effect—a temporary injunction—then he will have obtained all of the
relief he has asked for without due process of law. As the Supreme Court
held in Qwest, “if errors in the form of the order determined the order’s
status, then those errors would deny review of the very defects that
render the order void.” Qwest, 24 S.W.3d at 336.
The trial court’s order states that City Secretary Anna Russell
“shall count and certify to Houston City Council the number of valid
signatures contained in the petition submitted by Plaintiff on or before
30 (thirty) days from the date the same were filed, namely July 9, 2015.”
R.0180. Its character and function is to command the City Secretary to
obey and execute an order. Tex. R. Civ. P. 687(d). Just as in Qwest, the
order requires the City Secretary to perform certain activities, was
entered upon the plaintiff’s request, was effective immediately, and
13 operated during the pendency of the suit. Qwest, 24 S.W.3d at 338. See
discussion in Downstream, 2014 WL 5500486, at *5.
Just like the orders in Qwest, Helix, and Downstream, the order
compelling the City Secretary to “count and certify” is a temporary
injunction appealable as an interlocutory order under section
51.014(a)(4) of the Texas Civil Practice and Remedies Code. Qwest, 24
S.W.3d at 336; Helix, 452 S.W.3d at 44; Downstream, 2014 WL 5500486,
at *5. The trial court abused its discretion in entering that order without
pleadings or proof to support it and without complying with the
requirements of the Texas Rules of Civil Procedure for injunctive relief.
The City respectfully prays that this Court assert jurisdiction over
this interlocutory appeal, and after full briefing vacate the July 28, 2015
order and remand this case to the district court for further proceedings.
14 Respectfully submitted,
DONNA L. EDMUNDSON City Attorney JUDITH L. RAMSEY Chief, General Litigation Section
By: /s/ Judith L. Ramsey Judith L. Ramsey State Bar No.: 16519550 Kathleen Hopkins Alsina Senior Assistant City Attorney State Bar No.: 09977050 Patricia L. Casey Senior Assistant City Attorney State Bar No.: 03959075 CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby, 4th Floor Houston, Texas 77002 832.393.6491 (Telephone) 832.393.6259 (Facsimile) kate.alsina@houstontx.gov pat.casey@houstontx.gov judith.ramsey@houstontx.gov
Attorneys for Respondents
15 Certificate of Compliance
I certify that this brief was prepared in MS Word 2010; the word- count function shows that, excluding those sections exempted under TRAP 9.4(i)(1), the response contains 2,979 words.
/s/ Judith L. Ramsey Judith L. Ramsey
Certificate of Service
I hereby certify that on this 28th day of August, 2015, a true and correct copy of the foregoing has been served on counsel below via e- service:
James D. Pierce 1 Sugar Creek Center 1080 Sugar Land, TX 77478 jim@jamespierce.com
Attorney for Appellee