Turner v. Robinson

• Decision Date: 17 August 2017
• Docket Number: NO. 14-16-00393-CV,14-16-00393-CV
• Citation: 534 S.W.3d 115
• Parties: Sylvester TURNER, in His Official Capacity as Mayor of the City of Houston, and the City of Houston, Appellants v. Carroll G. ROBINSON, Bruce R. Hotze and Jeffrey N. Daily, Appellees
• Court: Texas Court of Appeals

534 S.W.3d 115

Sylvester TURNER, in His Official Capacity as Mayor of the City of Houston, and the City of Houston, Appellants

v.Carroll G. ROBINSON, Bruce R. Hotze and Jeffrey N. Daily, Appellees

NO. 14-16-00393-CV

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

Opinion filed August 17, 2017

Rehearing Denied November 2, 2017

Judith Lee Ramsey, Patricia L. Casey, Houston, Kathleen Hopkins Alsina, for Appellants.

Andy Taylor, Houston, Amanda Eileen Staine Peterson, Houston, for Appellees.

Panel consists of Justices Busby, Donovan, and Brown

John Donovan, Justice

Litigation of the matter underlying this case began in 2004. In its current form, Carroll G. Robinson, Bruce R. Hotze, and Jeffrey N. Daily¹ filed suit in April 2014 against Annise D. Parker, as Mayor of the City of Houston,² and the City of Houston (collectively "the City"), seeking declaratory and injunctive relief. The City subsequently filed a plea to the jurisdiction and, subject to the plea, a motion for summary judgment. Both were denied by the trial court in an order signed May 2, 2016. From the denial of its plea, the City brings this appeal. The City contends appellees lack standing to bring this suit and governmental immunity has not been waived as to either the City of Houston or the Mayor. We conclude appellees have standing as taxpayers and the City has not conclusively proved the trial court lacks subject matter jurisdiction. We therefore affirm the trial court's order.

BACKGROUND

The City approved an ordinance placing two propositions for amendments to the city charter on the ballot in a November 2004 election: "Prop. 1" and "Prop. 2."³

Prop. 1 was placed on the ballot pursuant to the City's own motion. Prop. 1 pertains to "Limits on Annual Increases in City Property Taxes and Utility Rates." Prop. 1 grants the City "full authority to assess and collect any and all revenues of the city without limitation, except as to ad valorem taxes and water and sewer rates." Although the full text of Prop. 1 was set forth in the election ordinance, the following summary was included on the ballot:

The Charter of the City of Houston shall be amended to require voter approval before property tax revenues may be increased in any future fiscal year above a limit measured by the lesser of 4.5% or the cumulative combined rates of inflation and population growth. Water and sewer rates would not increase more than the cumulative combined rates of inflation and population growth without prior voter approval. The Charter Amendment also requires minimum annual increases of 10% in the senior and disabled homestead property tax exemptions through the 2008 tax year.

Prop. 2 resulted from a citizen-initiated referendum petition. Prop. 2 concerns "Limits on All Combined City Revenues." Although the full text of Prop. 2 was set forth in the election ordinance, the following summary was included on the ballot:

The City Charter of the City of Houston shall be amended to require voter approval before the City may increase total revenues from all sources by more than the combined rates of inflation and population, without requiring any limit of any specific revenue source, including water and sewer revenues, property taxes, sales taxes, fees paid by utilities and developers, user fees, or any other sources of revenues.

On the November 2004 ballot, the electorate was allowed to vote for or against each proposition. Prop. 1 and Prop. 2 each passed with a majority of the votes cast on the particular proposition. Prop. 1 received more favorable votes than Prop. 2.

After the election, for two independent reasons, the City determined Prop. 1 is legally binding and Prop. 2 would not be enforced. First, in the election ordinance, the following "poison pill" provision was included after the text of Prop. 1:

If another proposition for a Charter amendment relating to limitations on increases in City revenues is approved at the same election at which this proposition is also approved, and if this proposition receives the higher number of favorable votes, then this proposition shall prevail and the other shall not become effective.

Citing this provision, the City asserted Prop. 1 must prevail because it received more favorable votes than Prop. 2. Alternatively, the City relied on Article IX, Section 19 of the Houston City Charter providing, in pertinent part:

... at any election for the adoption of amendments if the provisions of two or more proposed amendments approved at said election are inconsistent the amendment receiving the highest number of votes shall prevail.

The City posited that Prop. 1 and Prop. 2 are inconsistent and Prop. 1 prevails because it received more favorable votes.⁴

In a prior case, appellees sued the City, seeking a declaratory judgment that Prop. 1 and Prop. 2 must both be added to the City Charter. The City filed a plea to the jurisdiction, followed by a supplemental plea, contending, inter alia, that appellees lacked standing. The City also filed a motion for summary judgment and a supplemental motion. The trial court denied the City's plea to the jurisdiction and motion for summary judgment. Subsequently, the trial court denied the City's request for reconsideration of its motion for summary judgment. Appellees also filed a motion for summary judgment which the trial court granted. The trial court then signed a final judgment from which the City appealed. The trial court specifically expressed no opinion on the validity of Prop. 2. That issue was presented in the City's appeal to this court but was not reached. See White v. Robinson , 260 S.W.3d 463 (Tex. App.—Houston [14th Dist.] 2008), vacated sub nom. Robinson v. Parker , 353 S.W.3d 753 (Tex. 2011). We held appellees lacked standing to challenge the City's post-election interpretation of the two propositions based on their working to place the proposition on the ballot, contributing to the campaign for the proposition, and voting for Proposition 2. Id. at 473. We remanded the case to the trial court to allow appellees an opportunity to replead and establish standing. Id. at 476.

Appellees appealed our decision to the Texas Supreme Court where our judgment was vacated and the case dismissed on the grounds the claims were not ripe. See Robinson v. Parker , 353 S.W.3d 753, 756 (Tex. 2011). The court noted the record was silent as to whether the City had failed to comply with the Prop. 2 spending caps and that then-mayor Bill White had stated his intention to comply with the caps. Id. at 755–56. Because there was nothing in the record indicating the City had actually failed or would soon fail to comply with Prop. 2's spending caps, the case was not ripe and the trial court lacked jurisdiction. Id. at 756.⁵ Accordingly, the judgments of our court and the trial court were vacated and the case dismissed for want of jurisdiction. Id. The court expressly declined to opine as to whether, if the case were ripe, appellees would have standing to bring their declaratory judgment claims. Id.

On the same day that suit was filed, appellees sought writs of mandamus that were assigned to the First Court of Appeals complaining that the City failed to perform certain ministerial duties with respect to the election. See In re Robinson, 175 S.W.3d 824, 826–27 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding). The court held the Mayor had a non-discretionary duty to certify all the amendments, including Prop. 2, to the Secretary of State. Id. at 829–30 (citing Tex. Loc. Gov't Code Ann. § 9.007(a) (West 2008)).⁶ The court also held that City Council had a non-discretionary duty to enter an order in the city records declaring all the propositions had been adopted by voters. Id. at 830–32 (citing Tex. Loc. Gov't Code Ann. § 9.005 (West 2008) ).⁷ The city council passed an ordinance recognizing that both Prop. 1 and Prop. 2 had passed, thus both propositions became part of the Houston City Charter, and declaring that Prop. 1 had received the higher number of votes. See Robinson , 353 S.W.3d at 754 (citing Hous., Tex., Code Ordinances, City Charter art. III, § 1; art. VI-a, § 7; art. IX, § 20 (2006)).

In July 2008—our opinion in White v. Robinson , 260 S.W.3d 463, issued in April 2008—Hotze petitioned this court for a writ of mandamus to compel the city to furnish written verification that its budget complied with the city charter. In re Hotze , 14-08-00421-CV, 2008 WL 4380228 (Tex. App.—Houston [14th Dist.] July 10, 2008, no pet.) (mem. op.). We determined Hotze lacked standing under section 273.061 of the Election Code. We did not address Hotze's claim that he had taxpayer standing because the petition did not invoke our limited jurisdiction to compel an action by a district or county court or to enforce this court's jurisdiction. Id. (citing Tex. Gov't Code § 22.221 ).

Also during this time, the Mayor and the City Council approved putting two new propositions, Propositions G and H, on the November 7, 2006, ballot. Proposition G revised the calculation for the city charter's limitations on the City's revenues.⁸ Proposition H permitted the City to raise revenues for police, fire, and emergency services in excess of the revenues allowed under any revenue limitations contained in the city charter.⁹

On November 3, 2006, Hotze filed a declaratory judgment action against the City seeking a declaration that Proposition G, as it was to appear on the ballot in the November 7, 2006 election, was "illegal and invalid as a matter of law." See Tex. Elec. Code § 221.002, 233.006(a) - (b). The City subsequently filed a Plea to the Jurisdiction, and then an Amended Plea to the Jurisdiction, arguing that the trial court did not have subject matter jurisdiction over this action because Hotze's claims were time-barred by the Texas Election Code. Id. The trial court granted the City's amended plea to the jurisdiction as to all of Hotze's claims.

Hotze appealed. Hotze v. White , 01-08-00016-CV, 2010 WL 1493115, at *2–3 (Tex. App.—Houston [1st Dist.] Apr. 15,...