Hotze v Brown

• Decision Date: 09 December 1999
• Citation: 9 S.W.3d 404
• Parties: <!--9 S.W.3d 404 (Tex.App.-Houston 1999) RICHARD HOTZE, Appellant v. THE HONORABLE LEE P. BROWN AND THE CITY OF HOUSTON, Appellees & Cross-Appellants v. ROB TODD, Cross-Appellee NO. 14-98-00394-CV In The Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 404

9 S.W.3d 404 (Tex.App.-Houston[14th Dist.] 1999)

RICHARD HOTZE, Appellant v. THE HONORABLE LEE P. BROWN AND THE CITY OF HOUSTON, Appellees & Cross-Appellants v. ROB TODD, Cross-Appellee

NO. 14-98-00394-CV

In The Fourteenth Court of Appeals

December 9, 1999.

On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 98-08746

Affirmed.

[Copyrighted Material Omitted] Panel consists of Chief Justice Murphy and Justices Amidei and Lee.^*

MAJORITY OPINION ON REHEARING

Paul C. Murphy, Chief Justice.

We withdraw the original opinion issued June 24, 1999, in this cause and substitute the following opinion in its place.

City of Houston Mayor Lee Brown (Brown) signed an executive order prohibiting discrimination based on sexual orientation. Richard Hotze (Hotze) and City Councilman Rob Todd (Todd) sued Brown and the City of Houston (the City), asking the court to declare the order invalid and preclude its enforcement by temporary and permanent injunction. Brown and the City filed a motion to dismiss claiming Hotze and Todd had no standing. The court found Hotze had no standing and granted Todd's application for a temporary injunction. By interlocutory appeal, Hotze challenges the dismissal based on lack of standing, and Brown and the City cross-appeal the denial of the motion as to Todd. We affirm.

Background

In 1985, the City of Houston held a referendum regarding a proposed ordinance prohibiting discrimination based on sexual orientation. Hotze was instrumental in organizing a campaign to defeat the ordinance, and he voted against it in the referendum. A majority of voters rejected the ordinance, and it did not go into effect.

In 1998, Brown signed an executive order, EO 1-8, prohibiting discrimination based on sexual orientation. The order expressly applies to all city activities and employees, including civil service employees. Adherence to the order is mandatory, and it contains disciplinary measures.¹

The City of Houston charter states that the civil service commission, with the approval of the city council, shall make rules and regulations for the conduct of its business and employees. See Houston, Tex., Houston Code, art. V-a, §§ 2, 4. The rules and regulations for its employees must include provisions necessary to prohibit discrimination. See id. art. V-a, § 4. The city council, however, is vested with all legislative powers of the city, subject to the terms of the charter. See id. art. VII, § 10. It may change or amend any commission rule. See id. art V-a, § 2. No provision precludes the city council from enacting rules for civil service employees or requires it to obtain civil service commission approval of rules and ordinances it promulgates.²

The mayor, on the other hand, enforces laws and ordinances. See id. art. VI, § 7a. He can, however, prescribe rules "necessary and expedient" for the general conduct of the administrative department. See id.

Hotze and Todd contend that these provisions of the charter establish that, by implementing a major policy change expressly applicable to civil service employees, Brown bypassed the citizens of Houston who voted against the referendum and usurped a power allocated to the city council and the civil service commission.

Jurisdiction to Hear Hotze's Appeal

In the absence of a statute authorizing jurisdiction, appellate courts do not have jurisdiction to hear appeals from interlocutory orders. See Jani-King, Inc. v. Yates, 965 S.W.2d 665, 666 (Tex. App.--Houston [14th Dist.] 1998, no pet.); Gleason v. Coman, 693 S.W.2d 564, 565 (Tex. App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.). An appellate court commits fundamental error if it exercises jurisdiction over an interlocutory appeal without statutory authority. See Jani-King, 965 S.W.2d at 666. Hotze contends we have jurisdiction under section 51.014(a)(4) of the Texas Civil Practices and Remedies Code, which allows an appeal from an interlocutory order granting or refusing a temporary injunction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (Vernon 1997). He argues that, since the court's order dismissed him for lack of standing, it effectively denied the temporary injunction, thus bringing his appeal within section 51.014(a)(4).

In General Electric Co. v. Marvel Rare Metals, the United States Supreme Court considered a similar argument. 287 U.S. 430, 432-33 (1932). The defendant's counter-claim sought an injunction against a patent infringement, which the plaintiff successfully moved to dismiss for lack of jurisdiction. The defendants appealed, and the plaintiff moved to dismiss the appeal because the trial court's dismissal did not amount to the refusal of an injunction under the federal statute, allowing an appeal from an interlocutory order when "an injunction is granted, continued, modified, refused, or dissolved by an interlocutory order or decree . . . ." Id. at 431-32 (quoting 28 U.S.C. § 227). The Court rejected the plaintiff's argument, stating, "the [trial] court necessarily decided that upon the facts alleged in the counterclaim defendants were not entitled to an injunction. It cannot be said . . . that the dismissal did not deny to the defendants the protection of the injunction prayed in their answer." Id. at 433. Accordingly, it found the appellate court had jurisdiction to review the dismissal. See id.

Here, it is undisputed that Hotze did not get the protection he desired because the court found he did not have standing to proceed. By dismissing him, the court effectively denied his motion for a temporary and permanent injunction. Moreover, we note that if we find we lack jurisdiction to hear Hotze's interlocutory appeal, he could not appeal the matter of his standing until after the court renders a final judgment determining the propriety of the permanent injunction. At that point, of course, the issue of Hotze's standing would be moot. Consequently, Hotze is without a remedy unless we exercise jurisdiction. Accordingly, we assert jurisdiction under section 51.014(a)(4) to consider Hotze's standing.

Hotze Lacks Standing

A plaintiff may not maintain an action unless he has standing to litigate the matters made the basis of the lawsuit. See Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984); Marburger v. Seminole Pipeline Co., 957 S.W.2d 82, 89 (Tex. App.--Houston [14th Dist.] 1997, pet. denied). "Standing" is "some interest peculiar to a person individually and not as a member of the general public." Bass, 664 S.W.2d at 324. A person has standing if (1) he has sustained or is in immediate danger of sustaining a direct injury as a result of the wrongful act of which he complains; (2) there is a direct relationship between the alleged injury and the claim sought to be adjudicated; (3) he has a personal stake in the outcome of the case; (4) the challenged action has caused him some injury in fact; or (5) he is an appropriate party to assert the public's interest in the matter as well as his own interest. See Marburger, 957 S.W.2d at 89. A plaintiff does not establish a justiciable interest if his complaint fails to show that the subject matter of the litigation affects him differently than other citizens. See Hunt, 664 S.W.2d at 324. We review the trial court's determination of standing as we review any issue of subject matter jurisdiction, by construing the pleadings in favor of the plaintiff and considering the plaintiff's intent. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

In his first, second, and third points of error, Hotze contends he had standing because (1) he voted in the 1985 election, (2) he formed an organization and worked to defeat the ordinance, (3) he is a taxpayer; and (4) Brown violated the City Charter VIIb-§ 3. Except for the second basis, all of these allegations are injuries which do not affect Hotze differently than other members of the general public. First, while Brown's actions arguably nullified Hotze's 1985 vote, Brown's actions do not have a unique affect on Hotze; all citizens who voted against the referendum suffer the same injury, if any.³ Likewise, if Brown acted beyond his power and violated the City Charter in attempting to unilaterally implement a major policy change, the effect on Hotze is the same as the affect on any Houstonian. Further, he cannot have standing as a taxpayer because, although Hotze's petition stated that he "wishes to enjoin the City from spending its resources on enforcing the executive order [and] binding itself to void contracts and ultra vires acts," his pleadings do not allege that he suffered any special injury or that he has been or will be injured other than as a member of the general public.⁴ See Galveston County Beach Park Bd. v. Johnson, 822 S.W.2d 828, 830 (Tex. App.--Houston [14th Dist.] 1992), writ denied, 848 S.W.2d 689 (Tex. 1993) (per curiam) (holding that a person seeking to enjoin the actions of a governmental body must plead and prove that he has been damaged and injured other than as a member of the general public).

In his motion for rehearing, Hotze argues that a recent Texas Supreme Court decision mandates that we reverse the trial court. In July, the court decided Blum v. Lanier, 997 S.W.2d 259 (Tex. 1999). In that case, Edward Blum and over 20,000 Houston citizens signed a petition proposing to amend the city charter to end preferential treatment in employment and contracting. See id. at 260. The proposed charter amendment specifically stated that "[t]he 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 public contracting." Id. However, the city council's ordinance calling for a special election provided the following: "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...