Washington v. Associated Builders & Contractors of S. Tex. Inc.

• Decision Date: 10 March 2021
• Docket Number: No. 04-20-00004-CV,04-20-00004-CV
• Citation: 621 S.W.3d 305
• Parties: Marilyn WASHINGTON ; Texas Organizing Project Education Fund ; City of San Antonio, Texas; Ron Nirenberg, Mayor of the City of San Antonio; Erik Walsh, City Manager of the City of San Antonio; and Jennifer Herriot, Interim Director of the San Antonio Metropolitan Health District, Appellants v. ASSOCIATED BUILDERS & CONTRACTORS OF SOUTH TEXAS INC.; American Staffing Association; BBM-Online, LLC d/b/a BBM Staffing ; The Burnett Companies Consolidated, Inc. d/b/a Burnett Specialists; Cardinal Senior Care, LLC d/b/a Cardinal Med Staffing; Choice Staffing, LLC; Employers Solutions, Inc.; Hawkins Associates, Inc. d/b/a Hawkins Personnel Group; LeadingEdge Personnel, Ltd. ; Staff Force, Inc. d/b/a Staff-Force Personnel Services; San Antonio Manufacturers Association ; San Antonio Restaurant Association ; Texas Retailers Association; Association of Convenience Store Retailers ; South Texas Merchants Associations; and the State of Texas, Appellees
• Court: Texas Court of Appeals

621 S.W.3d 305

Marilyn WASHINGTON ; Texas Organizing Project Education Fund ; City of San Antonio, Texas; Ron Nirenberg, Mayor of the City of San Antonio; Erik Walsh, City Manager of the City of San Antonio; and Jennifer Herriot, Interim Director of the San Antonio Metropolitan Health District, Appellants

v.ASSOCIATED BUILDERS & CONTRACTORS OF SOUTH TEXAS INC.; American Staffing Association; BBM-Online, LLC d/b/a BBM Staffing ; The Burnett Companies Consolidated, Inc. d/b/a Burnett Specialists; Cardinal Senior Care, LLC d/b/a Cardinal Med Staffing; Choice Staffing, LLC; Employers Solutions, Inc.; Hawkins Associates, Inc. d/b/a Hawkins Personnel Group; LeadingEdge Personnel, Ltd. ; Staff Force, Inc. d/b/a Staff-Force Personnel Services; San Antonio Manufacturers Association ; San Antonio Restaurant Association ; Texas Retailers Association; Association of Convenience Store Retailers ; South Texas Merchants Associations; and the State of Texas, Appellees

No. 04-20-00004-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: March 10, 2021

Nicholas Dominguez, Andrew Segovia, Office of the City Attorney, Litigation Div., 100 W. Houston St., San Antonio, TX 78205, Mimi Marziani, Ryan Cox, Emma Hilbert, Texas Civil Rights Project, 1405 Montopolis Drive, Austin, TX 78741, Holt Lackey, Ellwanger Law LLLP, 8310 N. Capital of Texas Hwy., Austin, TX 78731-1023, Lisa Hobbs, Kuhn Hobbs PLLC, 3307 Northland Dr., Ste. 310, Austin, TX 78731-4969, Barry Snell, 1250 N.E. Loop 410, Suite 725, San Antonio, TX 78209, Sara Clark, Scott Douglass & McConnico LLP, 303 Colorado Street, Suite 2400, Austin, TX 78701, for Appellant.

Ryan Walters, Robert Earl Henneke, Texas Public Policy Foundation, 901 Congress Avenue, Austin, TX 78701, Roland Frank Gonzales, Javier T. Duran, Cokinos | Young, 10999 West IH-10, Suite 800, San Antonio, TX 78230, Roger Townsend, Cokinos Young, 1221 Lamar Street, 16th Floor, Houston, TX 77010, Ricardo G. Cedillo, Brian L. Lewis, Derick J. Rodgers, Davis, Cedillo & Mendoza, Inc., 755 E. Mulberry Ave., Ste. 500, San Antonio, TX 78212, Anne Marie Mackin, Office of the Attorney General, 300 W. 15th St., Austin, TX 78701, William Thompson, Office of the Attorney General, 209 W. 14th St., Austin, TX 78701, David Hacker, Office of the Attorney General, 209 W. 14th St., Austin, TX 78701-1614, Lanora Pettit, Office of the Solicitor General, P.O. Box 12548, Austin, TX 78711-2548, Kyle Hawkins, Office of the Attorney General, P.O. Box 12548 (MC 059), Austin, TX 78711, for Appellees.

Sitting: Patricia O. Alvarez, Justice, Irene Rios, Justice, Beth Watkins, Justice

Opinion by: Patricia O. Alvarez, Justice

After the City of San Antonio passed an ordinance requiring private employers to pay employees for sick and safe leave, several employers sued the City. The employers argued the Texas Minimum Wage Act (TMWA) preempts the ordinance and they sought a temporary injunction to prevent it from taking effect. The trial court granted the temporary injunction, and this appeal ensued. Because the ordinance's paid sick and safe leave provision establishes a minimum wage, which is inconsistent with the TMWA and thus violates the Texas Constitution, we affirm the trial court's order.

BACKGROUND

In August 2018, in response to an electors' petition to initiate an ordinance, the San Antonio City Council passed an ordinance titled "Paid Sick Leave Ordinance." SAN ANTONIO , TEX., CODE OF ORDINANCES ch. 15, art. XI, §§ 15-269–15-280 (2018). The Ordinance required private employers to pay employees for time taken as sick leave; it was to take effect on August 1, 2019. After the Ordinance was passed, the City sought input from business leaders and community advocates on possible amendments.

In mid-July 2019, a group of businesses and business associations sued the City and some of its officials (the City) seeking to temporarily and permanently enjoin enforcement of the Ordinance. The plaintiffs asserted the Ordinance was preempted by the TMWA and it violated the plaintiffs' due course of law, equal protection, and freedom of association rights, as well as the prohibition against unreasonable searches.

A few days later, more entities petitioned to intervene. Marilyn Washington, MOVE Texas Action Fund (MOVE),¹ and Texas Organizing Project Education Fund (TOP) intervened as Intervenor-Defendants. As Intervenor-Plaintiffs, three more business associations intervened to support all the claims. We will refer to all the business and business association plaintiffs as the Business Parties. The State of Texas also intervened to support the preemption claim.

In late July 2019, the original plaintiffs and the City agreed to stay implementation of the Amended Ordinance until December 1, 2019. After more discussions, in October 2019, the City Council passed several amendments to the Ordinance, renumbered it Ordinance No. 2019-10-03-0795, and renamed it the "Sick & Safe Leave Ordinance." SAN ANTONIO , TEX., CODE OF ORDINANCES ch. 15, art. XI, §§ 15-269–15-281 (2019) (Amended Ordinance).

Section 15-272 of the Amended Ordinance states as follows:

(a) General. An employer shall provide an employee with sick and safe leave that meets the requirements of this article in an amount up to the employee's available sick and safe leave. The employer shall provide sick and safe leave at the rate of pay that the employee would have earned if the employee had worked the scheduled work time, exclusive of any overtime premium, tips, or commissions, but no less than the state minimum wage.

(b) Accrual requirements and yearly cap.

(1) An employer shall grant an employee one hour of sick and safe leave for every thirty (30) hours worked for the employer in the city of San Antonio....

(2) Sick and safe leave shall accrue starting at the commencement of employment or the date this article is effective, whichever is later.

After an evidentiary hearing, the trial court signed an order that found, inter alia, that the Business Parties pled and proved all the essential elements necessary to support a temporary injunction. It granted the temporary injunction, suspended the Amended Ordinance, ordered the Business Parties to post a bond, and set a trial date.

Intervenor-Defendants appeal; they argue the trial court abused its discretion by (1) misapplying the law regarding preemption, (2) finding imminent and irreparable injury without any evidence, and (3) rendering an overbroad injunction order.

MOTION TO DISMISS APPELLANTS , STRIKE BRIEF

As a threshold matter, we address the Business Parties' pending motion to dismiss Washington and TOP from this appeal.

A. Business Parties' Motion to Dismiss

After the record and briefs were filed, the Business Parties moved to strike Washington and TOP's brief and dismiss them from this appeal for want of jurisdiction. The Business Parties assert that Washington and TOP have no appellate standing to challenge the trial court's order and that "[t]he City alone is entitled to ... defend its own ordinances."

B. Washington, TOP Response

In response, Washington and TOP insist they have particularized injuries and have standing to intervene at trial² and to appeal from the trial court's order.

C. Discussion

We must make our written opinion "as brief as practicable [while] address[ing] every issue raised and necessary to final disposition of the appeal." TEX. R. APP. P. 47.1 ; see In re Guardianship of Thrash , 610 S.W.3d 74, 75 (Tex. App.—San Antonio 2020, pet. denied).

Here, determining whether Washington and TOP have appellate standing is not necessary to the final disposition of this appeal. The City timely filed its own notice of appeal, adopted Washington and TOP's brief in its entirety, and prayed for the trial court's temporary injunction order to be reversed. Notably, the Business Parties do not ask this court to dismiss Washington and TOP from this suit , they ask only that we strike Washington and TOP's brief and dismiss them from this appeal. Even if we were to do so, we would not strike the City's adopted brief, and the issues presented would not change. Therefore, we deny as moot the Business Parties' motion to dismiss Washington and TOP as appellants and to strike their brief.

We turn now to Appellants' issues beginning with the essential elements and standard of review for a temporary injunction.

TEMPORARY INJUNCTION

"To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim." Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v. Metcalfe , 863 S.W.2d 56, 57 (Tex. 1993) ; Sun Oil Co. v. Whitaker , 424 S.W.2d 216, 218 (Tex. 1968) ).

"An applicant for injunction must establish its probable right to recovery and a probable injury by competent evidence adduced at a hearing." Ron v. Ron , 604 S.W.3d 559, 568 (Tex. App.—Houston [14th Dist.] 2020, no pet.) ; accord Goldthorn v. Goldthorn , 242 S.W.3d 797, 798 (Tex. App.—San Antonio 2007, no pet.).

"An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard." Butnaru , 84 S.W.3d at 204 ; accord Cheniere Energy, Inc. v. Parallax Enters. LLC , 585 S.W.3d 70, 76 (Tex. App.—Houston [14th Dist.] 2019, pet. dism'd).

STANDARD OF REVIEW

"The decision to grant or deny a temporary writ of injunction lies in the sound discretion of the trial court, and the court's grant or denial is subject to reversal only for a clear abuse of that discretion." Walling , 863 S.W.2d at 58 ; accord Butnaru , 84 S.W.3d at 204. Of course, "[a] trial court has no ‘discretion’ in determining what the law is or applying the law to the facts." Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992) ; accord Ex parte E.H. , 602 S.W.3d 486, 489 (Tex. 2020). And when an overarching abuse of discretion standard applies, if there are...