Odutayo v. City of Hous.
| Decision Date | 18 April 2013 |
| Docket Number | NO. 01-12-00132-CV,01-12-00132-CV |
| Parties | BONITA ODUTAYO D/B/A SAMARITAN PARK & RIDE, L.L.C., Appellant v. CITY OF HOUSTON, Appellee |
| Court | Texas Court of Appeals |
Appellant, Bonita Odutayo, doing business as Samaritan Park & Ride, L.L.C. ("Samaritan"), challenges the trial court's order granting the plea to the jurisdiction of appellee, the City of Houston ("the City"), in her suit against theCity for declaratory relief, injunctive relief, and violations of the Equal Protection Clause1 and the Due Process Clause2 of the Texas Constitution. In three issues, Odutayo contends that the trial court erred in granting the City's plea to the jurisdiction and not allowing her the opportunity to replead her case and cure any jurisdictional defects.
We affirm.
In her first amended "Application for Temporary and Permanent Injunction," Odutayo alleges that Samaritan leases parking spaces and golf carts at 8800 South Main Street to customers attending events at Reliant Stadium. Samaritan had continuously engaged in this activity from 2002 until October 2, 2011, when one of Samaritan's golf carts was "stopped and ticketed" by a Houston Police Department ("HPD") officer who "threatened" to arrest the driver and impound the golf cart. The City prohibited Samaritan's leasing of golf carts "by calling them taxis and/or citing them for failure to be registered or inspected." In her pleading, however, Odutayo asserts that, under the Texas Transportation Code, golf carts are not required to be registered or inspected. Thus, as a result of the City's "discriminatory and unlawful act," Samaritan "lost an undeterminableamount of money" and "suffered irreparable injury or serious impairments in the use of its personal property," even though other businesses were allowed "to utilize the public highway of the state with [their] golf carts." Asserting that the City's actions violated her rights under the Equal Protection and Due Process clauses of the Texas Constitution, Odutayo asks that the City be enjoined from prohibiting her leasing of golf carts. She also seeks a declaration that the provisions of the Texas Transportation Code relating to golf carts3 are unconstitutional as applied to her.
In its answer, the City generally denies Odutayo's allegations and asserts that it is entitled to governmental immunity regarding all of Odutayo's claims and the trial court has no subject-matter jurisdiction to consider claims "relating to pending criminal actions." The City asserts that Odutayo's damages, if any, resulted solely from her criminal conduct, she failed to mitigate her damages, the City's actions are within the valid exercise of its police power, and Odutayo's claims lack ripeness, were fraudulently made in order to confer jurisdiction, and are barred by res judicata and collateral estoppel.
In its plea to the jurisdiction, the City asserted that Odutayo had filed a prior suit, asking the trial court to declare that article 46 of the City's Code of Ordinances, which regulates and requires permits and licenses for "low-speedshuttles," does not apply to golf carts.4 In that suit, the City filed a "Motion to Dismiss for Want of Jurisdiction and as Moot," in which it stipulated that the ordinances in question did not apply to golf carts and moved to dismiss Odutayo's suit because there was no real controversy between the parties. The City also asserted that any opinion would be advisory, Odutayo's claim for injunctive relief was moot, and Odutayo did not plead any facts supporting her constitutional claims. In its reply to Odutayo's response to its motion to dismiss, the City further argued that Samaritan's golf-cart operation violated the Texas Transportation Code.5 After a hearing, the trial court granted the City's motion to dismiss Odutayo's first suit because, "among other reasons," the City had stipulated that the ordinance in question did not apply to golf carts. In its instant plea, the City asserts that the "only difference" between Odutayo's first suit and her present suit is that she now challenges the constitutionality of the pertinent Texas Transportation Code provisions. However, the City asserts that it retains "sovereign immunity" against "actions taken," or a declaration of "rights," under the Texas Transportation Code. It also asserts that the proper defendant in the instant suit is the State of Texas, not the City.6
In her response to the City's plea, Odutayo asserts that the City "does not restrict other drivers from the use of their golf carts on public streets" but "only restricts" Samaritan from doing so. Unlike her first suit, Odutayo's instant suit "is not based upon Houston issuing citations" under its ordinances but rather its "characterization of golf carts as being illegal" under the Texas Transportation Code and its "selective enforcement" of that statute. Odutayo asserts that governmental immunity "does not bar suit for injunctive relief against a governmental entity to remedy violations of the state constitution." And Odutayo attached to her response photographs of other people allegedly operating golf carts on Main Street.
Odutayo also attached to her response her affidavit, in which she testified that Samaritan leased golf carts to customers "in a manner consistent" with the Transportation Code, the golf carts were insured and all "equipped with headlamps, taillamps, reflectors, parking brakes, seat belts and mirrors." She further stated that HPD Officer R. Prince cited the golf-cart drivers "for no registration or inspection sticker" and "referenced Texas House Bill 2553 as his legal authority."7 She attached to her response the affidavits of Keith Smith andOkunlola Odutayo, who both testified that they received citations for driving the golf carts that they had leased from Samaritan.
After a hearing, the trial court sustained the City's plea and dismissed Odutayo's suit for want of jurisdiction.
In her first issue, Odutayo argues that the trial court erred in granting the City's plea to the jurisdiction because her suit "against the City of Houston police officers" is a "challenge to the discriminatory enforcement" of the pertinent Texas Transportation Code provisions. See TEX. TRANSP. CODE ANN. §§ 551.402, 551.403(a)(3) (Vernon 2011). She asserts that her constitutional claims "are still viable and deserve to be heard" regardless of whether the City has immunity8 for her claim under the Texas Uniform Declaratory Judgment Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-37.011 (Vernon 2008).
In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's subject-matter jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). To determine whether the plaintiff has met that burden, we consider the facts alleged by the plaintiff and, to the extent that it is relevant to the jurisdictional issue, the evidence submitted by the parties. Id. (quoting Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 1993)). "[I]f the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend." County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Because immunity from suit defeats a trial court's subject-matter jurisdiction, immunity from suit may properly be asserted in a plea to the jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).
The State's sovereign immunity extends to various divisions of state government, including agencies, boards, hospitals, and universities. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Property/Casualty Joint Self-Insurance Fund, 212 S.W.3d 320, 324 (Tex. 2006); Tooke v. City of Mexia, 197 S.W.3d 325, 331 n.11 (Tex. 2006). The appurtenant common-law doctrine of governmental immunity similarly protects political subdivisions of the State, including counties, cities, and school districts. Ben Bolt-Palito, 212 S.W.3d at 324; see also Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). A political subdivision enjoys governmental immunity from suit tothe extent that immunity has not been abrogated by the Legislature. See Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002).
In her petition, Odutayo asserts that the pertinent Texas Transportation Code provisions are "unconstitutional as applied [to her] due to selective enforcement" under the Equal Protection Clause and the Due Process Clause. See TEX. CONST. art. I, §§ 3,19. Texas law generally does not shield state officials from suits for equitable relief for a violation of constitutional rights. See City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009) (); City of Elsa v. M.A.L., 226 S.W.3d 390, 391-92 (Tex. 2007) (); City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) (). However, the waiver from immunity exists only if the plaintiff has pleaded a viable constitutional claim. Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011); see also City of Houston v. Johnson, 353 S.W.3d 499, 504 (Tex. App.—Houston [14th Dist.], pet. denied) (...
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