Annise D. Parker, Mayor, Anna Russell, City Secretary, and City of Houston v. David B. Wilson

Opinion

ACCEPTED

01-15-00687-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS 9/1/2015 11:37:43 AM CHRISTOPHER PRINE

CLERK

No. 01-15-00687-CV

_________________________________ FILED IN 1st COURT OF APPEALS

IN THE COURT OF APPEALS FOR HOUSTON, TEXAS THE FIRST SUPREME JUDICIAL DISTRICT OF 9/1/2015 TEXAS11:37:43 AM

_________________________________ CHRISTOPHER A. PRINE Clerk

Annise D. Parker, Mayor, Anna Russell, City Secretary, and City of Houston

vs.

David B. Wilson

_________________________________

Trial Court Number 2015-39706 270th District Court of Harris County, Texas

____________________________________

REPLY TO RESPONSE TO NOTICE TO SHOW COURT’S APPELLATE JURISDICTION

________________________________________

James D. Pierce SBN 15994500 1 Sugar Creek Center 1080 Sugar Land, TX 77478 713-650-0150 jim@jamespierce.com Attorney for Realtor David B. Wilson

IDENTITY OF PARTIES AND COUNSEL

For the sake of simplicity the parties are sometimes referred by their name.

The following is a complete list of all the parties and their attorneys.

Appellee Appellants

David B. Wilson Annise D. Parker, Mayor, Anna Russell, City Secretary, and City of Houston

Attorney: Attorneys Donna Edmundson City Attorney Mr. James D. Pierce Judith L. Ramsey Chief, General SBN: 06702350 Litigation Section Attorney At Law Kathleen Hopkins 1 Sugar Creek Center 1080 Alsina Senior Assistant City Attorney Sugar Land, TX 77478 State Bar No. 09977050 713-650-0150 Patricia L. Casey Senior Assistant City 713-650-0146 Fax Attorney 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

STATEMENT OF THE CASE

This is an appeal of an interlocutory order granting a writ of mandamus

compelling one of the Appellee’s Anna Russell, City Secretary, to comply with

ministerial duties to count and certify the petitions presented by over 22,000 voters

for a proposed amendment to Houston's City Charter. See Notice of Interlocutory

Appeal filed on or about August 12, 2015. On August 19, 2015, this Court

questioned its jurisdiction and required a written response from Appellants within 10

days.

ARGUMENT & AUTHORITIES

Does a Texas Court of Appeals have appellate jurisdiction of an interlocutory

order of mandamus issued by a trial court? The order of the trial court (attached to

the notice of appeal) was not an temporary injunction, it was an order granting a writ

of mandamus. As stated by this Court in its August 19, 2015 order:

This Court generally has jurisdiction only over appeals from final judgments unless a statute authorizes an interlocutory appeal.

citing, See CMH Homes v. Perez, 340 S.W.3d 444, 447–48 (Tex. 2011); Paulsen v.

Yarrell, 455 S.W.3d 192, 195 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing

Rusk State Hosp. v. Black, 392 S.W.3d 88, 92 (Tex. 2012)); see also, e.g., Tex. Civ.

Prac. & Rem. Code Ann. § 51.014 (West 2015) (authorizing appeals from certain

interlocutory orders). (Appendix 2). No statutory basis exists for reviewing an

interlocutory mandamus order by appeal.

A writ of mandamus will issue to compel a public official to perform a

ministerial act. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).

A writ of injunction is governed by Chapter 65 of the Texas Civil Practice &

Remedies Code and requires balancing equities. The Texas Legislature permits

interlocutory appeals of temporary injunctions, but makes no allowance for

interlocutory appeals of mandamus orders. Tex. Civ. Pract. & Rem. Code Ann. § 51.014 (4) (West 2015). The historic difference between the two writs is well

documented. See generally, Howard W. Brill, The Citizen's Relief Against Inactive

Federal Officials: Case Studies in Mandamus, Actions "In the Nature of Mandamus,"

and Mandatory Injunctions, 16 Akron Law Review 339 (1983).1 The courts strictly

construe statutes that allow interlocutory appeals. Bally Total Fitness Corp. v.

Jackson, 53 S.W.3d 352 (Tex. 2001). The Appellants place reliance upon Qwest

Communications Corp. v. AT&T Corp., 24 S.W.3d 334, 338 (Tex. 2000). Quest was

a temporary injunction case in which the court entered an order based upon agreement

that purported to settle an application for temporary injunction. Id., at 335. In fact,

the trial court in that Quest stated “[w]ith respect to the plaintiff’s application for

termporary injunction, judgment is rendered.” Id. The Texas Supreme Court

concluded that in character and function of the order was a temporary injunction.

However, no alternative writ or remedy, such as a writ of mandamus, could describe

the Quest trial court’s order. Quest does not support this Court’s exercise of

interlocutory jurisdiction. This Court was correct in questioning its jurisdiction as

appellate jurisdiction is lacking. The appeal should be dismissed.

1. Available at: https://www.uakron.edu/dotAsset/24c1be43-1c6a-49f2-899f-d03fac60cd30.pdf).

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellee prays that the Appeal

be Dismissed, and for such other and further relief as is just.

Respectfully submitted,

___/S/James D. Pierce________ James D. Pierce(15994500)

1 Sugar Creek Center Suite 1080 Sugar Land, TX 77478 (713) 650-0150 jim@jamespierce.com

Attorney for Appellee David B. Wilson

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing brief has been served on the below listed counsel of record this 1st day of September, 2015 through the Court’s Electronic Filing System.

Respondents Annise D. Parker, Mayor, Anna Russell, City Secretary, and City of Houston

Attorneys Donna Edmundson City Attorney Judith L. Ramsey Chief, General Litigation Section 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, Fourth Floor Houston, Texas 77002 832.393.6491 (Telephone) 832.393.6259 (Facsimile) kate.alsina@houstontx.gov pat.casey@houstontx.gov

___/S/James D. Pierce________ James D. Pierce