in Re Bruce R. Hotze

• Court: Court of Appeals of Texas
• Decided: July 10, 2008
• Docket: 14-08-00421-CV
• Status: Published

Opinion

Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed July 10, 2008

Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed July 10, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00421-CV

IN RE BRUCE R. HOTZE, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On May 21, 2008, relator, Bruce R. Hotze, filed a petition for writ of mandamus in this court.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); Tex. Elec. Code Ann. ' 273.061 (Vernon 2003); see also Tex. R. App. P. 52.  In the petition, relator requests this court to compel respondents^[1] to perform their purported ministerial duties under Article VI-a, Section 7, Subsection 2 of the City of Houston Charter by requiring that they furnish written verification that the budget complies with claimed requirements of Article VI-a, Section 7, Subsection 1 of the Charter.  Relator also requests that this court compel respondents to furnish written verification from the City=s independent accountants that the City complied during such complete fiscal year with Article VI-a, Section 7, Subsection 1 of the Charter or specify the amount of noncompliance, as required by Article VI-a, Section 7, Subsection 2 of the Charter.  We dismiss relator=s petition.

                                                               Background

On November 2, 2004, registered voters of the City of Houston approved AProposition 2,@ which related to limits on all combined city revenues.  Relator complains that although Proposition 2 has been certified and added to the Charter, respondents have not complied with the Charter by obtaining verification from the City=s outside accountants that the City=s spending and revenue limits for the City=s fiscal years ending in 2006 and 2007 are in compliance. 

                                                                   Standing

Before we can reach the merits of relator=s petition, we first must determine whether relator has standing to bring this original proceeding.  Relator asserts he has standing under Section 273.061 of the Texas Election Code^[2] and, alternatively, as a taxpayer entitled to enjoin alleged illegal funding.

                                            Section 273.061 of the Election Code

Section 273.061 of the Election Code provides for mandamus relief under the following circumstances:

The supreme court or a court of appeals may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention, regardless of whether the person responsible for performing the duty is a public officer.

Tex. Elec. Code Ann. ' 273.061 (emphasis added). 

To have standing, a party must demonstrate that he Apossesses an interest in a conflict distinct from that of the general public, such that the defendant=s actions have caused the plaintiff some particular injury.@  Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001).  Signers of an initiative petition have an interest in an election distinct from that of the general public.  See Blum v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999) (holding that Athose qualified voters who sign the petition have a justiciable interest in the valid execution of the charter amendment election, . . . and as such have an interest in that election distinct from that of the general public@); Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 648 (1951) (finding that signers of initiative petition were entitled to mandamus relief to compel city officials to call and hold election for approval or rejection of ordinance).  Relator contends, under Blum and Glass, that he has standing because, in addition to signing the petition, he (1) helped organize a petition drive for Proposition 2; (2) helped draft the final wording of the referendum petition, and underwrote that effort; (3) worked on the ALet the People Vote@ and AVote Yes on Prop 2@ campaigns to ensure passage of Proposition 2; (4) was a substantial contributor in the AVote Yes on Prop 2@ campaign; (5) was a leader in the AVote Yes on Prop 2@ advertisement campaign; and (6) voted in favor of Proposition 2. 

Relator relies on In re Robinson, which also involved Proposition 2, as support for his position that he has standing to bring this original proceeding.  175 S.W.3d 824 (Tex. App.CHouston [1st Dist.] 2005, orig. proceeding).  In Robinson, relator, along with Carroll G. Robinson and Jeffrey N. Daily, complained that (1) the mayor had failed to comply with his ministerial duty to certify to the secretary of state authenticated copies of the amendments that they had been approved by the voters of the municipality; and (2) the City Council had failed to comply with its ministerial duty to enter an order in the records of the City declaring that the amendments were adopted.  Id. at 827.  The court of appeals determined that the relators were challenging the process of the election under section 273.061 of the Election Code, i.e., the City=s refusal to see that the results of the election are certified to the secretary of state and recorded in the City=s records so that they might become effective.  Id. at 828.  Therefore, the court concluded that the relators had a particular interest in seeking to have a proposition that they sponsored enacted as law once it was adopted by the citizens of the city in a referendum election.  Id. 

We find relator=s reliance on Robinson in this proceeding misplaced.  Instead, we believe our recent opinion in White v. Robinson, also involving Proposition 2, is instructive to the facts in this proceeding, although relator fails to cite to it.  No. 14-06-00167-CV, 2008 WL 878516 (Tex. App.CHouston [14th Dist.] Apr. 3, 2008, no pet. h.).  In White, relator, along with Carroll G. Robinson and Jeffrey N. Daily, sought a declaratory judgment that Proposition 2 is valid and must be enforced.  Id. at *1.  In the November 2004 election, Proposition 1, which pertained to limits on annual increases in city property taxes and utility rates, was placed on the ballot pursuant to the City=s motion in addition to citizen-initiated Proposition 2 at issue here.  Id.

Both Proposition 1 and Proposition 2 were passed by a majority of the votes cast, with Proposition 1 receiving more favorable votes than Proposition 2.  Id. at *2.  After the election, the City determined that Proposition 1 is legally binding, but that Proposition 2 would not be enforced because (1) of the Apoison pill@ provision in Proposition 1 providing that if Proposition 1 received more favorable votes than Aanother proposition for a Charter amendment relating to limitations on increases in City revenues@ in the same election, then Proposition 1 would prevail and the other proposition would not become effective; and (2) Proposition 1 and Proposition 2 are inconsistent.  Id. at *2. 

The appellees in White sought standing by virtue of the same activities that relator claims support his standing in this original proceeding.  Id. at *4.  This court addressed whether these activities were sufficient to confer standing to challenge the City=s interpretation of, and refusal to enforce, Proposition 2.  Id. at *4.  The court observed that a referendum sponsor=s standing is limited to challenging the election process, but does not extend to protecting the results from subsequent change.  Id. at *6 (citing Brown v. Todd, 53 S.W.3d 297, 302B04 (Tex. 2001)).  Because the appellees claimed that the City=s interpretation and implementation of the election results were inaccurate and illegal, the court determined that the appellees= claim had Amoved beyond the election process.@  Id.  Therefore, because Proposition 2 was submitted to, and adopted by, the voters, and such adoption was reflected in the City records, the appellees had not alleged any distinct injury by virtue of their sponsorship activities, but, instead, were essentially equal to all other persons who had voted for Proposition 2 and wished to ensure its subsequent enforcement.  Id. at *7. 

As in White, the relief relator seeks here, i.e., the implementation and enforcement of Proposition 2, goes beyond the election process.  That is, relator seeks to compel respondents to perform duties that are not Ain connection with the holding of an election . . .@  Tex. Elec. Code Ann. ' 273.061.  Therefore, we hold that relator does not have standing under section 273.061 of the Election Code necessary to maintain this original proceeding.

                                            Alleged Illegal Expenditure of Funds

Relator also claims that he has standing as a taxpayer to enjoin alleged illegal expenditures and require the City to comply with its ministerial duty to certify the illegal expenditures.  See Williams, 52 S.W.3d at 179 (stating taxpayer may sue to enjoin illegal expenditure of public funds upon a showing that (1) plaintiff is a taxpayer, and (2) public funds are expended on allegedly illegal activity).  However, relator=s standing argument does not address our jurisdiction over this original proceeding.  Our general authority to issue writs of mandamus, under Section 22.221 of the Texas Government Code, is limited to district and county courts or to enforce our jurisdiction.  See Tex. Gov=t Code Ann. ' 22.221.  This original proceeding does not seek to compel an action by a district or county court or to enforce this court=s jurisdiction. 

                                                                Conclusion

Accordingly, we dismiss relator=s petition for writ of mandamus for lack of jurisdiction. 

PER CURIAM

Petition Dismissed and Memorandum Opinion filed July 10, 2008.

Panel consists of Justices Frost, Seymore, and Guzman.

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            ^[1]  The named respondents are the City of Houston, Mayor Bill White, Controller Annise Parker, and City Council members Peter Brown, Sue Lovell, Melissa Noriega, Ronald C. Green, Jolanda Jones, Toni Lawrence, Jarvis Johnson, Anne Clutterbuck, Wanda Adams, Mike Sullivan, M.J. Kahn, Pam Holm, Adrian Garcia, and James G. Rodriguez.

            ^[2]  Tex. Elec. Code Ann. ' 273.061 (Vernon 2003).