City of Canyon v. Fehr

• Decision Date: 08 December 2003
• Docket Number: No. 07-03-0305-CV.,07-03-0305-CV.
• Citation: 121 S.W.3d 899
• Parties: CITY OF CANYON and Lois Rice, Appellants, v. Kevin FEHR and Brian Goss, Appellees.
• Court: Texas Court of Appeals

121 S.W.3d 899

CITY OF CANYON and Lois Rice, Appellants, v. Kevin FEHR and Brian Goss, Appellees.

No. 07-03-0305-CV.

Court of Appeals of Texas, Amarillo.

December 8, 2003.

Charles A. Hester Jr., James L. Abbott Jr., Hester McGlasson & Cox, Canyon, for Appellants.

John Mozola, Mullin Hoard & Brown, L.L.P., George Whittenburg, Jared Knight, Whittenburg Whittenburg & Schachter P.C., Amarillo, for Appellees.

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

Opinion

BRIAN QUINN, Justice.

The City of Canyon and Lois Rice (collectively referred to as Canyon) appeal from an order denying a plea to the jurisdiction of the court and granting Kevin Fehr (Fehr) and Brian Goss (Goss) a temporary injunction. Four issues are presented for our consideration. The first and second concern the doctrines of sovereign immunity and standing, respectively. Through the third and fourth issues, Canyon effectively argues that the trial court abused its discretion in granting the preliminary injunction because there does not exist a substantial likelihood that Fehr and Goss will ultimately succeed on the merits. They will not do so, according to Canyon, because re-zoning is not subject to initiative and referendum. We affirm in part and reverse in part.

Background

Canyon is a home rule municipality. Article XIV of its charter contains procedures for initiative (§ 14.01) and referendum (§ 14.02).

Under provisions of the city's zoning ordinance, proposals were drafted to rezone two tracts of land within Canyon's boundaries from single family residential use to commercial use. The local zoning commission recommended that the proposals be denied. However, on April 7, 2003, Canyon's city commissioners approved the change by adopting amendments to the local zoning ordinance ("the amendments").

Upon adoption of the amendments, Fehr and Goss (two individuals alleging themselves to be citizens, residents and qualified voters of the city of Canyon) sued Canyon for injunctive or mandamus relief. That is, they sought a decree from the trial court ordering Canyon to abide by various provisions of its local charter. The charter provisions allegedly obligated the Canyon city commissioners to address a petition tendered by Fehr and Goss to the city clerk. Those signing the petition (who included Goss, Fehr and others representing themselves to be residents and qualified voters of Canyon) demanded either the 1) adoption of a resolution negating the re-zoning ordinances, 2) repeal of the amendments, or 3) submission of the rezoning issue to a referendum election. The injunctive relief contemplated by Fehr and Goss would compel the city commission to undertake one of the three actions mentioned.

Canyon filed an answer wherein it invoked sovereign immunity and averred that neither Fehr nor Goss had standing to assert the claims mentioned in their pleading. The trial court rejected these contentions. So too did it issue a temporary injunction 1) suspending the effectiveness of the amendments and 2) directing the city clerk to present the initiative and referendum petition to the city commission. Canyon appealed the interlocutory decree.

Issue One—Sovereign Immunity

Canyon initially argues that the doctrine of sovereign immunity barred the suit. We disagree and overrule the point.

As acknowledged by the Texas Supreme Court, judicial decrees have been "issued and affirmed ... to compel municipal authorities to perform their ministerial duties with respect to initiatory elections." Blum v. Lanier, 997 S.W.2d 259, 262 (Tex.1999). And, while neither Blum nor any other case authority cited to us by the parties explain why sovereign immunity has not barred execution of those decrees, we conclude that the answer lies in the nature of initiative and referendum and the status of those pursuing it.

It is beyond dispute that initiative and referendum entails the exercise of a power reserved to the people. Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 648-49 (1951); quoting, Taxpayers' Assn. of Harris County v. City of Houston, 129 Tex. 627, 105 S.W.2d 655, 657 (1937). It is not simply a right granted to them. Id. Moreover, in exercising that power, the citizenry become the legislative branch of the governmental unit involved. Blum v. Lanier, 997 S.W.2d at 262; Glass v. Smith, 244 S.W.2d at 648-49. And, therein lies the answer to the dispute before us for the doctrine of sovereign immunity cannot be used by a municipality against itself.

That is, sovereign immunity exists as a means of protecting the independent sovereignty of the governmental unit. Tex. Workers' Comp. Comm'n v. City of Eagle Pass, 14 S.W.3d 801, 803 (Tex.App.-Austin 2000, pet. denied) (holding that the doctrine did not bar suit initiated by state regulatory agencies). Serving that purpose, it operates to bar suits initiated by private third parties, not by entities in relation to which the governmental unit has no independent sovereignty. Id. And, logic compels that a governmental unit, such as a municipality, has no independent sovereignty from itself. So, because a person seeking to compel initiative and referendum acts not as a private third party but as the legislative branch of the governmental unit, see Blum v. Lanier, supra, Glass v. Smith, supra, sovereign immunity does not bar Fehr and Goss from suing a governmental unit (i.e. Canyon) as a means of enforcing the initiative and referendum provisions contained in its city charter.

Issue Two—Standing

Next, Canyon asserts that neither Fehr nor Goss had standing to pursue the claims involved. We again disagree and overrule the issue.

As stated by the Supreme Court, individuals qualified to vote and who sign the petition for initiative and referendum "have a justiciable interest in the valid execution of the charter amendment election." Blum v. Lanier, 997 S.W.2d at 262. Thus, their interests are distinct from those of the general public, and they have standing to prosecute their claim. Id. Here, Fehr and Goss alleged in their live pleading that they signed the petition tendered to the city clerk. Furthermore, this allegation is supported by the evidence admitted at the hearing upon the motion for temporary injunction. Thus, Fehr and Goss have standing to prosecute the action.

Issues Three and Four—Initiative and Referendum and Zoning

In their third and fourth issues, Canyon alleges that the trial court erred in issuing the temporary injunction because the zoning changes were not subject to initiative and referendum. They rely on case law and commentary to support their contention. In response, Fehr and Goss argue that recently enacted sections of the Texas Local Government Code authorized the trial court to order compliance with Canyon's ordinances regarding popular vote. We disagree with Goss and Fehr and sustain the points of error.

As mentioned in the opening of this opinion, Canyon appeals from, among other things, the trial court's execution of a temporary injunction. To obtain the latter, the movant (Fehr and Goss) had to establish 1) a probable right of recovery, 2) imminent, irreparable harm if the request is denied, and 3) the existence of no adequate remedy at law. EOG Resources, Inc. v. Gutierrez, 75 S.W.3d 50, 52 (Tex.App.-San Antonio 2002, no pet.). In assessing whether they did so and the propriety of the trial court's decision, we must remember that a trial court enjoys broad discretion in granting and denying such injunctions. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex.1978); EOG Resources, Inc. v. Gutierrez, 75 S.W.3d at 52. However, it can abuse that discretion and subject its decision to reversal by misapplying the law. EOG Resources, Inc. v. Gutierrez, 75 S.W.3d at 52. According to Canyon, the trial court did just that by concluding that Fehr and Goss had a probable right of recovery when the cause is finally tried. We agree.

As previously said, initiative and referendum is not a right granted the citizenry. Rather, it represents a power reserved from the government and retained by the people. Because of this, provisions dealing with it should be liberally construed in favor of the reservation. Quick v. City of Austin, 7 S.W.3d 109, 124 (Tex.1998); Glass v. Smith, 244 S.W.2d at 648-49. However, it may be limited. That can occur through either express directive or by implication. Quick v. City of Austin, 7 S.W.3d at 124. And, before it can arise through implication, the provisions must evince a clear and compelling intent to limit the power. Id.

Authority also holds that though the power may be recognized at the local level it may nonetheless be restricted by the State's general laws. Glass v. Smith, 244 S.W.2d at 649. Indeed, our Texas Constitution provides that neither a city charter nor an ordinance may contain any provision inconsistent with the Constitution or the general laws enacted by the state legislature. Tex. Const. art. XI, § 5; Glass v. Smith, 244 S.W.2d at 649. Yet, logically, that the charter provisions and ordinances are subject to the general laws of this state also means that this state's general laws may permit what a charter prohibits. Along that line, we note Texas case authority that historically prohibited the use of initiative and referendum in the arena of zoning. E.g., San Pedro North, Ltd. v. City of San Antonio, 562 S.W.2d 260 (Tex.Civ.App.-San Antonio 1978, writ ref'd n.r.e.); Hancock v. Rouse, 437 S.W.2d 1 (Tex.Civ.App.-Houston [1st Dist.] 1969, writ ref'd n.r.e.). However, when those opinions were issued, Texas had no statute touching upon the subject. Indeed, the San Pedro court so acknowledged. San Pedro North, Ltd. v. City of San Antonio, 562 S.W.2d at 262 (stating that the Zoning Enabling Act contained no provisions relating to initiative and referendum). That situation changed in 1993 when our legislature added § 211.015 to the Texas Local Government Code.

Upon enactment of § 211.015, referendum was interjected into the fray. The problem before us concerns the...