City of Hous. v. Dacus
| Decision Date | 09 February 2017 |
| Docket Number | NO. 14-16-00123-CV,14-16-00123-CV |
| Parties | THE CITY OF HOUSTON AND ITS CURRENT MAYOR, SYLVESTER TURNER, Appellants v. ALLEN MARK DACUS AND ELIZABETH C. PEREZ, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 234th District Court Harris County, Texas
This is the second appeal in an election contest. Because the Supreme Court of Texas already has decided the substantive issues presented and its decision constitutes the law of the case, we affirm the trial court's grant of summary judgment in the election contestants' favor.
In 2010, a petition was circulated to amend the City of Houston's charter, and a sufficient number of qualified voters signed the petition to have the proposed amendment ("the measure") placed on the ballot.1 The measure required the establishment of a "Dedicated Drainage and Street Renewal Fund" to be funded from four sources, one of which was described as "[a]ll proceeds of drainage charges, which . . . shall be imposed in an equitable manner as provided by law to recover allocable costs of providing drainage to benefiting properties, with drainage charges initially set at levels designed to generate at least $125 million for fiscal year 2012." (emphasis added). In an election held on November 2, 2010, the measure was submitted on the ballot as Proposition 1,2 which provided as follows:
A majority of the voters participating in the election voted for the measure.
Allen Mark Dacus and Elizabeth C. Perez ("the Contestants") challenged the election results by filing an election contest against the City and its mayor.3 TheContestants alleged, inter alia, that the ballot language submitting the measure was misleading. The City successfully moved for traditional summary judgment on the ground that the proposition was not misleading, and on appeal, this court affirmed the trial court's judgment. See Dacus v. Parker, 383 S.W.3d 557, 560 (Tex. App.—Houston [14th Dist.] 2012) ("Dacus I"), rev'd, 466 S.W.3d 820 (2015) ("Dacus II").
The Supreme Court of Texas granted the Contestants' petition for review and reversed this court's judgment. See Dacus II, 466 S.W.3d at 822. The court concluded that the drainage charges to be imposed on benefitting real property was among the measure's chief features, and that Proposition 1 was misleading because it failed to mention the charges. See id. at 828. The court therefore reversed the judgment. Because the Contestants had not filed a cross-motion for summary judgment, the court remanded the cause to the trial court. See id. at 829.
On remand, the Contestants filed a motion for traditional summary judgment based on the law of the case. As an alternative ground, the Contestants argued that Proposition 1 was misleading as a matter of law because it did not mention the drainage charges, which were among the measure's chief features. In other words, the Contestants sought summary judgment on the grounds that (a) the Texas Supreme Court already had decided the issue in Dacus II, which became the law of the case; or (b) even if Dacus II did not constitute the law of the case, the trial court should reach the same result as Dacus II for the same reasons.
The trial court granted the motion without stating its reasons. In its final judgment, the trial court held the November 2, 2010 election on Proposition 1 to be void and ordered the City or appropriate authorities on its behalf to order a new election on the measure. See TEX. ELEC. CODE ANN. §§ 221.012(b); 233.011 (West 2010).
In its first issue, the City asserts that the trial court lacked subject-matter jurisdiction. The City argues in its second issue that the trial court erred in granting summary judgment in the Contestants' favor based on the law of the case. In the City's third issue, it contends that there is a question of fact about whether the drainage charges are one of the measure's chief features. We reach that issue only if we sustain the City's second issue and conclude that Dacus II did not establish, as the law of the case, that the ballot's language was misleading in that it omitted one of the measure's chief features: the requirement that the City impose drainage charges to benefitting properties.
In an election contest, the trial court's jurisdiction "is limited to such subjects or grounds of contest as are expressly or impliedly authorized by the Election Code." Cohen v. Clear Lake City Water Auth., 687 S.W.2d 406, 407 (Tex. App.—Houston [14th Dist.] 1985, no writ). This jurisdiction includes "the entire process" of the election. See id. at 408. In particular, it includes the question of whether the ballot adequately described the measure being submitted to voters. Cf. Dacus II, 466 S.W.3d at 823. The district court has exclusive original jurisdiction in an election contest of a measure. See TEX. ELEC. CODE ANN. §§ 221.002(a), 231.001, 233.001 (West 2010).
In its first issue, the City asserts that the district court lacked subject-matter jurisdiction because this case is not an election contest, but instead is a challenge to "the post-election implementation of the charter amendment" that the Contestants lack standing to assert. The City is mistaken.
In their live pleading, the Contestants allege that Proposition 1 was misleading because it omitted one of the measure's chief features. In their summary-judgment motion, the Contestants argued that the proposition failed to "identify the measure by its chief features, showing its character and purpose," because "the measure published in the newspaper . . . mentioned drainage charges as a key funding source, but the drainage charges were not mentioned in the ballot language at all." Thus, Contestants contest the election on the ground that the ballot was misleading. Neither in their live pleadings nor in their summary-judgment motion have the Contestants mentioned the City's implementation of the charter amendment or its passage of an ordinance addressing drainage charges. The trial court is not deprived of jurisdiction over this election contest merely because additional steps were taken after the election to implement the measure, and the City cites no authority that voters can bring an election contest challenging the sufficiency of a ballot description only in the rare case in which the measure itself is self-executing.4
We accordingly overrule the City's first issue.
A movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). If the movant initially establishes a right to summaryjudgment on the issues expressly presented in the motion, then the burden shifts to the nonmovant to present to the trial court any issues or evidence that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
The Contestants moved for summary judgment on two grounds, but we need discuss only one: the law of the case. Under the law-of-the-case doctrine, "questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages." Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006) (quoting Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)). In Dacus II, a court of last resort decided the first appeal in this election contest. Thus, unless some exception to the law-of-the case doctrine applies, the case is governed by the questions of law decided in Dacus II. We therefore begin by identifying the questions of law that already have been answered.
In Dacus II, the Texas Supreme Court explained that even voters already familiar with the measure to be voted on can be misled by ballot language that fails to sufficiently describe the measure. See Dacus II, 466 S.W.3d at 825-26. To prevent voter misunderstanding from arising at the polling place, the ballot must "substantially submit[] the question . . . with such definiteness and certainty that the voters are not misled." Id. at 826 (quoting Reynolds Land & Cattle Co. v. McCabe, 72 Tex. 57, 12 S.W. 165, 165 (1888)). To satisfy this requirement, "the ballot must identify the measure by its chief features, showing its character and purpose." Id. at 825 (emphasis omitted). As a matter of law, the ballot's description of the measure fails to meet this standard if (1) it affirmatively misrepresents the measure's chief features or its character and purpose, or (2) it omits "certain chief features that reflect [the measure's] character and purpose. See id. at 826.
The Texas Supreme Court then applied this legal ruling to the undisputed facts in this case, that is, the court compared the ballot's language (which is undisputed) to the proposed charter amendment's language (which also is undisputed). From that comparison, the court determined that "[t]he ballot did not identify a central aspect of the amendment: the drainage charges to be imposed on benefitting real property owners across the city." Id. Because the ballot omitted a chief feature of the measure, the court concluded that the ballot was misleading. See id. at 828.
The City maintains that Dacus II left "open [the] question of whether the ballot language was misleading," but that...
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