Brown v Blum

Decision Date21 December 1999
Citation9 S.W.3d 840
Parties<!--9 S.W.3d 840 (Tex.App.-Houston 1999) LEE BROWN, MAYOR OF THE CITY OF HOUSTON, Appellant V. EDWARD BLUM AND ED CHEN, Appellees NO. 14-99-01055-CV In The Fourteenth Court of Appeals
CourtTexas Court of Appeals

On Appeal from the 127th District Court Harris County, Texas

Trial Court Cause No. 97-49872

[Copyrighted Material Omitted] Panel consists of Justices Yates, Fowler and Frost.


Leslie Brock Yates, Justice

Appellant, The Honorable Lee P. Brown, Mayor of the City of Houston, appeals from a final judgment sustaining an election contest filed by appellees, Edward Blum and Ed Chen. At issue is whether the City of Houston ("the City") misled voters when it prescribed the ballot language for a proposed charter amendment to end "discrimination" and "preferential treatment" in the City's public employment and contracting. Because we conclude the ballot language was not misleading, we reverse and render judgment for Mayor Brown.


In mid-1997, Blum and 20,268 registered voters in the City signed a petition captioned: "A City of Houston Charter Change Amendment to End Preferential Treatment (Affirmative Action)." As reflected by the caption, the petition proposed an amendment to the City's charter to end discrimination and preferential treatment in the City's public employment and contracting. Specifically, section (a) of the proposed charter amendment provided:

The City of Houston shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment and contracting.

Blum v. Lanier, 997 S.W.2d 259, 260 (Tex. 1999) (quoting full text of proposed charter amendment).

In September 1997, after filing the petition with the City, Blum began negotiations with then Mayor, Bob Lanier, over the proposed language for the ballot proposition. Unable to reach a compromise with Mayor Lanier, Blum appeared before the Houston City Council on October 1, 1997, to present his views and answer questions. During this City Council meeting, Blum proposed two alternative ballot propositions, both of which differed from the language in section (a) of the proposed amendment.1 At the conclusion of this meeting, City Council passed an ordinance approving the following language for the ballot in the November 4, 1997, election:


Shall the Charter of the City of Houston be amended to end the use of Affirmative Action for women and minorities in the operation of City of Houston employment and contracting, including ending the current program and any similar programs in the future?

Voters were to vote "YES" or "NO" on "Proposition A." Claiming that the City had exceeded its authority by prescribing ballot language that was "vague, overbroad and misleading," Blum immediately filed suit seeking injunctive and mandamus relief against Mayor Lanier and the City.2 See Blum, 997 S.W.2d at 261. The trial court denied mandamus relief and dismissed Blum's claim for injunctive relief for lack of subject matter jurisdiction. See id. Blum appealed to this Court, which ultimately affirmed the trial court's judgment based on Blum's lack of standing to enjoin the City. See Blum v. Lanier, 2 S.W.3d 278 (Tex. App.-Houston [14th Dist.] 1997), rev'd, 997 S.W.2d 260 (Tex. 1999). Before this Court decided Blum's appeal, the voters elected the Honorable Lee P. Brown as Mayor and rejected Proposition A. Shortly thereafter, Blum filed a second amended petition, contesting the election under Chapter 233 of the Election Code. Following this Court's decision, Blum appealed to the Supreme Court, which ultimately ruled that Blum had standing to seek an injunction "so long as the injunction d[id] not operate to delay or cancel the called election." See Blum, 997 S.W.2d at 264. In December 1997, while that appeal was pending, Blum moved to the City of West University Place.

Back in the trial court, the parties filed cross-motions for summary judgment. Relying on a variety of newspaper articles discussing "the debate over affirmative action" and reporting on polling data, Blum asserted that the City failed to comply with the City Charter, Election Code, and common law by prescribing ballot language that was "vague, misleading and confusing." Mayor Brown responded by asserting that: (1) Blum lacked standing to contest the election because he no longer lived in the City; (2) the ballot language satisfied the requirements of the Election Code, as interpreted by Texas courts; and (3) Blum did not establish his claims by competent summary judgment proof. Amidst the claim that he lacked standing, Blum filed a third amended petition, adding Ed Chen, Al Vera, and Herschel Smith as plaintiffs.3 Blum also substituted Mayor Brown as a defendant in lieu of Mayor Lanier and dismissed the City.

Mayor Brown subsequently moved for summary judgment against Chen and Vera, asserting that they did not timely contest the election under Chapter 233. On April 21, 1999, the trial court denied Mayor Brown's summary judgment motion against Chen and Vera. On July 14, 1999, the trial court signed an order granting the cross-motions for summary judgment in part and denying them in part. Specifically, the court ruled that Blum did not have standing to seek a permanent injunction, but he had standing to bring the election contest and declaratory judgment claim. The court also sustained the election contest, ruling that "the ballot language submitted to the voters by the City did not fairly convey the subject matter of the proposed charter amendment as required by Texas Local Government Code 9.004 and the Election Code." The court voided the results of the November 4, 1997, election on Proposition A and ordered a new election. Finally, the court denied Blum's claim for declaratory relief and corresponding attorney's fees, but allowed him to recover court costs "under the applicable provisions of the Election Code." Because its rulings did not dispose of of the claims filed by Chen and Vera, the court ordered the case "continued as to the remaining issues and parties."

On July 30, 1999, Chen and Vera moved for summary judgment in their election contest on the identical grounds presented by Blum. In addition, Blum, Chen and Vera filed a motion asking the court to reconsider its ruling on standing to seek injunctive relief and on the recovery of attorney's fees under the Declaratory Judgment Act. On August 30, 1999, the case was called to trial. At that time, Vera non-suited all of his claims, and Blum and Chen abandoned their claim for injunctive relief. To dispose of Chen's remaining election contest, the trial court took judicial notice of, and adopted, its prior rulings in favor of Blum. The court then reconsidered the request for attorney's fees under the Declaratory Judgment Act. After a hearing, the trial court denied attorney's fees, concluding that the case was an election contest, not a declaratory judgment action.

After a hearing on September 1, 1999, the trial court signed a final judgment that incorporated all of its prior rulings. In addition, the court ordered a new election for January 22, 2000. The trial court later filed findings of fact and conclusions of law that conformed with the judgment. On September 3, 1999, Mayor Brown filed this accelerated appeal. Blum and Chen filed a cross-appeal from the denial of attorney's fees under the Declaratory Judgment Act.


In this case, the final judgment is based on the court's prior rulings on summary judgment.4 Therefore, we apply the standard of review for summary judgments. While Mayor Brown characterizes his summary judgment motion as both a "no evidence" motion and an "ordinary" motion, he primarily argues "matter of law" issues rather than "no evidence" issues. Accordingly, we treat his motion as an "ordinary" motion rather than a "no evidence" one. Compare TEX. R. CIV. P. 166a(a), (b) with TEX. R. CIV. P. 166a(i); see Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (holding that the standard for reviewing a "no evidence" summary judgment is the same as that used to review a directed verdict).

Because the propriety of summary judgment is a question of law, we review the trial court's decision de novo. See Texas Dept. of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex. App.-Austin 1999, no pet.). Generally, a movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In deciding whether there is a disputed material fact issue precluding summary judgment, proof favorable to the non-movant is taken as true and the court must indulge every reasonable inference and resolve any doubts in favor of the non-movant. See Nixon, 690 S.W.2d at 548-49. To prevail on summary judgment, a plaintiff must conclusively establish all elements of his cause of action as a matter of law. See Keever v. Finlan, 988 S.W.2d 300, 304 (Tex. App.-Dallas 1999, no pet). On the other hand, a defendant who moves for summary judgment must disprove at least one essential element of each of the plaintiff's theories of recovery or conclusively establish each element of an affirmative defense. See id. When, as here, both parties move for summary judgment and one motion is granted and the other denied, we must determine all questions presented to the court, including whether the losing party's motion should have been overruled. See Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). We may reverse the judgment of the trial court and render such judgment as the trial court should have rendered, including rendering judgment for the other movant. See id.

At issue on summary judgment is (1) whether Blum had standing to bring an election contest, (2) whether Chen...

To continue reading

Request your trial
15 cases
  • Dacus v. Parker
    • United States
    • Texas Supreme Court
    • June 12, 2015
    ... ... v. McCabe, 72 Tex. 57,12 S.W. 165, 165 (1888). 5 Beyond summarizing 466 S.W.3d 824 parties' arguments about the standard in 1999, Blum v. Lanier, 997 S.W.2d 259, 262 (Tex.1999), and commenting on the standard for ballot descriptions of state constitutional amendments in 1949, R.R ... Justice Guzman filed a concurring opinion, in which Justice Willett joined. Justice Brown did not participate in the decision. JUSTICE GUZMAN, joined by JUSTICE WILLETT, concurring. I agree with the Court that the language of the ballot ... ...
  • In re Nabors
    • United States
    • Texas Court of Appeals
    • January 16, 2009
    ... ... 1978). Research has not revealed any Texas case that has used section 311.012(a) of the Texas Government Code in interpreting a statute. See Brown v. Blum, 9 S.W.3d 840, 845-46 (Tex. App.-Houston [14th Dist.] 1999, pet dism'd w.o.j.) (declining to use section 311.012(a) of the Texas Government ... ...
  • Dacus v. Parker
    • United States
    • Texas Court of Appeals
    • December 5, 2012
    ... ... Elec.Code Ann. 52.072 (West Supp.2011)). A proposition need not contain the full text of the measure under consideration. See Brown v. Blum, 9 S.W.3d 840, 847 (Tex.App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.) (citing Reynolds Land & Cattle Co. v. McCabe, 72 Tex. 57, ... ...
  • Dacus v. Parker
    • United States
    • Texas Court of Appeals
    • July 10, 2012
    ... ... ELEC. CODE ANN. § 52.072 (West Supp. 2011)). A proposition need not contain the full text of the measure under consideration. See Brown v. Blum, 9 S.W.3d 840, 847 (Tex. App.—Houston [14th Dist.] 1999, pet. dism'd w.o.j.) (citing Reynolds Land & Cattle Co. v. McCabe, 72 Tex. 57, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT