Brown v. Todd

• Decision Date: 23 August 2001
• Docket Number: No. 00-0061,00-0061
• Citation: 53 S.W.3d 297
• Parties: (Tex. 2001) Hon. Lee P. Brown, Mayor and the City of Houston, Petitioners v. Rob Todd, Respondent
• Court: Texas Supreme Court

Page 297

53 S.W.3d 297 (Tex. 2001)

Hon. Lee P. Brown, Mayor and the City of Houston, Petitioners v. Rob Todd, Respondent

No. 00-0061

SUPREME COURT OF TEXAS

Argued on October 2, 2000

Decided June 21, 2001.

Rehearing Overruled Aug. 23, 2001

On Petitions for Review from the Court of Appeals for the Fourteenth District of Texas

[Copyrighted Material Omitted] Chief Justice Phillips delivered the opinion of the Court, joined by Justice Hecht, Justice Owen, Justice Baker, Justice Hankinson, Justice O'Neill, and Justice Jefferson.

We must decide whether a citizen and a city council member have standing to challenge a mayor's authority to issue an executive order prohibiting city employees from discriminating based on sexual orientation. The court of appeals held that the citizen did not have standing but that the council member did. 9 S.W.3d 404. We conclude that neither plaintiff has standing. Therefore, we affirm in part and reverse in part the judgment of the court of appeals; and, without reaching the merits of either plaintiff's claim, render judgment dismissing the case because the trial court lacked subject matter jurisdiction.

I.

The Houston City Charter allows voters, by petition, to protest the enactment or enforcement of an ordinance or resolution of the city council. After gathering the required signatures, voters may file the petition with the council, which then must reconsider its action. If the council decides not to repeal the ordinance or resolution, it must then submit the issue to a public referendum. See generally Houston City Charter, art. VIIb, § 2.

In 1984, the Houston city council approved an ordinance prohibiting discrimination based on sexual orientation in city hiring, promotion, and contracting. Thereafter, plaintiff Richard Hotze and other private citizens organized a campaign to repeal the ordinance. They submitted a proper petition to the City, and the council declined to repeal the ordinance. At the resulting election in 1985, the voters rejected the anti-discrimination ordinance, 198,563 to 44,706. Hotze alleges that he voted against the ordinance.

On February 16, 1998, Houston Mayor Lee P. Brown issued executive order EO 1-8, "prohibit[ing] discrimination or retaliation on the basis of sexual orientation and [providing] in all city programs and in all related activity equal employment and economic opportunity at every level of municipal government without regard to sexual orientation." Under the City Charter, the mayor has the power to enforce laws and ordinances and to prescribe rules "necessary or expedient for the general conduct of the administrative department." Art. VI, § 7a. The city council exercises all legislative powers of the city. Art. VII, § 10. The Charter also provides that the civil service commission, with the city council's approval, shall make rules and regulations for the conduct of its business and employees, including provisions regarding discrimination. Art. Va, §§ 2, 4. Mayor Brown consulted with neither the city council nor the civil service commission in developing the anti-discrimination policy. Plaintiff Robb Todd was a council member when the Mayor issued the order.

On February 25, 1998, nine days after the Mayor issued the executive order, Hotze and Todd sued Mayor Brown and the City (collectively, the City), seeking a declaration that EO 1-8 is invalid and temporary and permanent injunctions against its enforcement. Hotze and Todd contend that the Mayor's executive order both nullified the 1985 election and usurped the city council's authority. The City moved to dismiss for lack of subject matter jurisdiction asserting that both plaintiffs lacked standing. The trial court concluded that Hotze did not have standing and dismissed his claim. But it decided that Todd did have standing and temporarily enjoined the City from enforcing the executive order. Hotze appealed the trial court's order dismissing his claim, and the City appealed from the temporary injunction.

The court of appeals affirmed. 9 S.W.3d at 407. It unanimously held that Todd had standing and affirmed the injunction. Id. at 413. By a divided vote, it also affirmed the trial court's judgment on Hotze's lack of standing. Id. at 411; id. at 415 (Amidei, J., dissenting). Both Hotze and the City seek review in this Court.

II.

We must first decide whether we have jurisdiction over this interlocutory appeal. This lawsuit, initiated by a joint petition of co-plaintiffs seeking identical relief, has proceeded from its inception as a single case. After the trial court dismissed Hotze's claim for lack of standing, he could have sought a severance so that the dismissal against him would have been an appealable final judgment. In that event, both the court of appeals and this Court would unquestionably have had jurisdiction over his claim.

Even without a severance, the court of appeals nevertheless asserted jurisdiction over Hotze's interlocutory appeal by construing the trial court's dismissing Hotze's claim for lack of standing as "effectively den[ying] the temporary injunction, thus bringing his appeal within [Texas Civil Practices and Remedies Code] section 51.014(a)(4)" (allowing appeal from interlocutory order granting or refusing temporary injunction). 9 S.W.3d at 408. The court of appeals then treated the City's claims as cross-points without considering whether they had an independent jurisdictional basis. 9 S.W.3d at 411-14.¹

Both the City and Hotze petitioned for review. Hotze alleges jurisdiction under Texas Government Code sections 22.001(a)(1) and 22.225(c), which give this Court jurisdiction over final and interlocutory orders when the "justices of the court of appeals disagree on an issue of law material to the decision." In a separate petition for review, the City alleges jurisdiction under Texas Government Code section 22.001(a)(6), which gives this Court jurisdiction to review an error of law in a court of appeals' opinion that "is of such importance to the jurisprudence of the state that, in the opinion of the supreme court, it requires correction . . . ."

The City's jurisdictional allegation is without merit. Section 22.001(a)(6), while providing generally for review of decisions important to the jurisprudence of the state, excludes cases in which the court of appeals' jurisdiction is made final by statute. The court of appeals' jurisdiction over this appeal is made final by Texas Government Code section 22.225. "[A] judgment of a court of appeals is conclusive on the law and facts, and a writ of error is not allowed from the Supreme Court in . . . interlocutory appeals that are allowed by law," Tex. Gov't Code § 22.225(b)(3), and appeals "from an order . . . in which a temporary injunction has been granted." Tex. Gov't Code § 22.225(b)(4). The City's appeal from the denial of its plea to the jurisdiction against Todd is interlocutory. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). The City also appealed the issuance of a temporary injunction against it. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(4). Thus, the jurisdiction of the court of appeals is final, and the City has not excepted to that rule of finality.

Todd contends that the City's failure to allege a proper jurisdictional basis means that this Court cannot review its claims. We disagree.

Todd recognizes that the one statutory provision that the City could plausibly have argued to confer jurisdiction is section 22.225(c). That subsection provides that section 22.225 "does not deprive the supreme court of jurisdiction of a civil case brought to the court of appeals from an appealable judgment of a trial court in which the justices of the courts of appeals disagree on a question of law material to the decision." Tex. Govt. Code § 22.225(c). But Todd contends that even though Hotze alleged jurisdiction under this provision, the City did not. Even if it had, Todd says, the City still could not have invoked the Court's jurisdiction on that basis because none of the City's points of error relate to an issue raised in the dissenting opinion. See Harry Eldridge Co. v. T.S. Lankford & Sons, Inc., 371 S.W.2d 878, 879 (Tex. 1963). That is, the dissenting opinion in the court of appeals dealt only with the holding that Hotze lacks standing, while the City's complaint here is only about the court's unanimous holding that Todd has standing.

We reject Todd's suggestion that we do not have jurisdiction over the City's appeal. As we have repeatedly recognized, if our jurisdiction is properly invoked on one issue, we acquire jurisdiction of the entire case. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 643-44 (Tex. 1995); Stafford v. Stafford, 726 S.W.2d 14, 15 (Tex. 1987); Harry Eldridge Co., 371 S.W.2d at 879; United Am. Ins. Co. v. Selby, 338 S.W.2d 160, 161-62 (Tex. 1960); Pittman v. Baladez, 312 S.W.2d 210, 213 (Tex. 1958) (citing older cases). Unquestionably, we have jurisdiction to hear Hotze's appeal from the effective denial of his request for a temporary injunction because his standing was the issue that prompted the dissenting opinion. Tex. Gov't Code §§ 22.001(a)(1), 22.225(c). And our well-established extended jurisdiction doctrine gives us authority to consider claims over which we would otherwise lack jurisdiction, so long as they are raised with a claim that is within our jurisdiction. See Randall's Food Markets, Inc., 891 S.W.2d at 643-44 (reviewing slander claim, which was then not within Court's jurisdiction, along with other claims that provided basis for Court's jurisdiction); Stafford, 726 S.W.2d at 15 (reviewing divorce claim, which was then not within Court's jurisdiction, when petitioner also appealed from personal injury claim). The Court would not have jurisdiction over the City's appeal if Hotze had not also appealed; but because he did, "we acquire jurisdiction of the entire case." Harry Eldridge Co., 371 S.W.2d at 879; cf. Commercial Standard Ins. Co. v. Robinson, 151...