Pidgeon v. Turner

• Decision Date: 29 April 2021
• Docket Number: NO. 14-19-00214-CV,14-19-00214-CV
• Citation: 625 S.W.3d 583
• Court: Texas Court of Appeals
• Parties: Jack PIDGEON and Larry Hicks, Appellants v. Sylvester TURNER, in His Official Capacity as Mayor of the City of Houston, and the City of Houston, Appellees

625 S.W.3d 583

Jack PIDGEON and Larry Hicks, Appellants

v.Sylvester TURNER, in His Official Capacity as Mayor of the City of Houston, and the City of Houston, Appellees

NO. 14-19-00214-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed April 29, 2021

Jared R. Woodfill, Houston, for Appellants.

Collyn Ann Peddie, Suzanne Reddell Chauvin, Houston, for Appellees.

Panel consists of Justices Zimmerer, Poissant, and Wilson

Margaret "Meg" Poissant, Justice

Appellants Jack Pidgeon and Larry Hicks (collectively, "appellants"), individual taxpayers, bring this interlocutory appeal challenging the trial court's order granting the plea to the jurisdiction of appellee Sylvester Turner, in his official capacity as the Mayor of the City of Houston ("Mayor Turner") and appellee City of Houston ("the City"). We affirm the trial court's order.

I. BACKGROUND

In 2013, after a decision of the U.S. Supreme Court invalidated part of the federal Defense of Marriage Act ("DOMA"),¹ the then-Houston Mayor Annise Parker ("Mayor Parker"), on advice from the city attorney,² on November 19, 2013, "direct[ed] that same-sex spouses of employees who have been legally married in another jurisdiction be afforded the same benefits as spouses of a heterosexual marriage."³

Appellants, who identify themselves as Houston residents and taxpayers, oppose Mayor Parker's directive and seek to enjoin Mayor Turner and the City from continuing to spend public funds for the extension of benefits to same-sex spouses of city employees by claiming those benefits violate state and city DOMAs contained in the Texas Constitution, Texas Family Code, and Houston City Charter.⁴ Appellants also seek an injunction to "claw back" taxpayer money that Mayor Parker and other city officials allegedly have "unlawfully spent" on same-sex spousal benefits of city employees. Appellants further seek declarations regarding Mayor Parker's directive and its continued enforcement.

A. PRIOR PROCEDURAL HISTORY

This case was filed on October 22, 2014; however, the parties were embroiled in prior litigation, which we briefly review. On December 17, 2013, appellants sued Mayor Parker and the City of Houston in Harris County, Texas state court (Pidgeon I ), challenging Mayor Parker's directive and the City's provision of benefits pursuant to that directive and seeking temporary and permanent injunctions preventing the defendants from providing such benefits. They were initially successful, and a state trial judge issued a temporary injunction prohibiting the city from "furnishing benefits to persons who were married in other jurisdictions to City employees of the same sex." Shortly before the injunction expired, the Mayor removed the case to federal district court in the Southern District of Texas, asserting federal-question jurisdiction, 28 U.S.C. § 1441(a). The case was eventually remanded back to state court on August 28, 2014. See Pidgeon v. Parker , 46 F. Supp.3d 692, 700 (S.D. Tex. 2014) (Rosenthal, J.). Prior to the remand, however, the state court gave notice to appellants that a motion to retain was required to keep the case on its docket. Appellants did not file a motion to retain. Thus, the state court dismissed the case for want of prosecution on May 9, 2014. Appellants did not challenge the dismissal of Pidgeon I.

B. THE CURRENT LITIGATION

On October 22, 2014, appellants filed this case (Pidgeon II ). In their Original Petition and Application for Temporary Restraining Order, Application for Temporary Injunction, and Application for Permanent Injunction, appellants allege that they are Houston taxpayers and qualified voters, that Mayor Parker's directive to the City to offer benefits to same-sex spouses of city employees who are married in a state that recognizes same-sex marriage is a "violation of Texas Family Code § 6.204, Texas Constitution Article I, § 32, and Article II, § 22 of the City of Houston Charter." Appellants sought unspecified actual damages as well as temporary and permanent injunctive relief prohibiting the City from providing these benefits.

Mayor Parker and the City filed pleas to the jurisdiction asserting governmental immunity and challenging appellants' standing to assert their claims. The trial court denied the pleas and granted appellants' request for a temporary injunction prohibiting Mayor Parker "from furnishing benefits to persons who were married in other jurisdictions to City employees of the same sex." Mayor Parker and the City filed an interlocutory appeal challenging both the order denying the pleas to the jurisdiction and the order granting the temporary injunction.

While Mayor Parker's and the City's appeal was pending before our court, on June 26, 2015, the U.S. Supreme Court issued its opinion in Obergefell , in which it held that same-sex couples had a constitutional "right to marry." Obergefell v. Hodges , 576 U.S. 644, 675–76, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015). In particular, the Court ruled that similar statutes in four other states, which defined marriage as a union between one man and one woman, were unconstitutional to the extent that they excluded "same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." Id. at 647, 135 S.Ct. 2584. Shortly thereafter, in response to Obergefell , the Fifth Circuit upheld a lower court's ruling enjoining the State of Texas from enforcing the provisions in the Texas Constitution and the Family Code, or any other laws or regulations, that prohibit "a person from marrying another person of the same sex or recognizing same-sex marriage." De Leon v. Abbott , 791 F.3d 619, 624–25 (5th Cir. 2015).

On July 28, 2015, our court, in a per curiam opinion, reversed the trial court's temporary injunction and remanded for proceedings consistent with Obergefell and De Leon . See Parker v. Pidgeon , 477 S.W.3d 353, 355 (Tex. App.—Houston [14th Dist.] 2015), rev'd sub nom. Pidgeon v. Turner , 538 S.W.3d 73 (Tex. 2017). Appellants filed a petition for review with the Texas Supreme Court, which was granted.⁵

In a decision dated June 30, 2017, the Texas Supreme Court reversed our decision, holding that the case should be remanded to the trial court so it could consider the impact of both Obergefell and DeLeon on appellants' claims. Pidgeon v. Turner , 538 S.W.3d 73, 83–84, 89 (Tex.), cert. denied , ––– U.S. ––––, 138 S. Ct. 505, 199 L.Ed.2d 385 (2017). It further explained:

The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and -- unlike the 5th Circuit in De Leon -- it did not hold that the Texas DOMAs are unconstitutional.

Id. at 86–87.⁶ The City requested review from the U.S. Supreme Court, but it denied certiorari. See Turner v. Pidgeon , ––– U.S. ––––, 138 S. Ct. 505, 199 L.Ed.2d 385 (2017).

While the Texas Supreme Court still had jurisdiction over the case and no mandate had been issued, appellants filed their First Amended Petition and Application for Temporary Injunction. In their amended petition against Mayor Turner and the City,⁷ appellants set forth two causes of action:

• Plaintiffs Pidgeon and Hicks bring suit as taxpayers to enjoin the mayor's ultra vires expenditures of public funds, and to secure an injunction that requires city officials to claw back public funds that were spent in violation of section 6.204(c)(2) of the Texas Family Code ; article I, section 32 of the Texas Constitution ; and article II, section 22 of the City of Houston charter.

• Plaintiffs Pidgeon and Hicks bring suit under the Declaratory Judgment Act, asking this Court to declare that the mayor's directive of November 19, 2013, violated state law, and to declare further that the mayor and city officials have no authority to disregard state law merely because it conflicts with their personal beliefs of what the U.S. Constitution or federal law requires.

In their request for relief, they sought:

• a declaration that the mayor's directive of November 19, 2013, violated state and city law;

• a declaration that the mayor and city officials have no authority to disregard state or city law merely because it conflicts with their personal beliefs of what the U.S. Constitution or federal law requires;

• a declaration that the mayor and the city are violating state law by continuing to enforce the mayor's directive of November 19, 2013;

• a temporary and permanent injunction requiring the mayor and the city to claw back all public funds that they illegally spent on spousal benefits for the homosexual partners of city employees;

• a temporary and permanent injunction requiring the mayor and the city to comply with section 6.204(c)(2) of the Texas Family Code ;

• reasonable attorney's fees;

• pre- and post-judgment interest as allowed by law;

• all costs of suit; and

• all other relief that this Court deems appropriate.

On July 2, 2018, appellants filed a motion for summary judgment. In their motion, appellants argued that the only issues for the trial court to resolve were questions of law: "(1) Whether the city can defend its present-day defiance of section 6.204(c)(2) by relying on the Supreme Court's decisions in Obergefell and Pavan v. Smith , ––– U.S. ––––, 137 S. Ct. 2075, 198 L.Ed.2d 636 (2017) ; and (2) Whether the city can defend its pre- Obergefell defiance of section 6.204(c)(2) by relying on then-mayor Parker's personal beliefs that the statute was unconstitutional." Appellants also argued in their motion that they were entitled to an injunction requiring Mayor Turner and the City to "claw back" public funds that they previously spent in violation of Section 6.204(c)(2).

On August 21, 2018, Mayor Turner and the City filed a First Amended Answer to Plaintiffs' First Amended Petition and Application for Temporary Injunction, including affirmative...