Opinion issued March 10, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00687-CV
———————————
ANNISE PARKER, MAYOR, ANNA RUSSELL, CITY SECRETARY, AND
CITY OF HOUSTON, Appellants
V.
DAVID B. WILSON, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2015-39706
MEMORANDUM OPINION
Appellants, Mayor Annise Parker, City Secretary Anna Russell, and the City
of Houston (collectively “the City”) filed this interlocutory appeal of the trial
court’s July 28, 2015 order granting appellee David B. Wilson’s petition for writ of
mandamus. In its first issue, the City contends that Wilson’s underlying
mandamus suit and the July 28 order are moot and the case should be dismissed.
In its second, third, and fourth issues, the City challenges the trial court’s July 28
order on the grounds that (1) Wilson’s petition was an untimely referendum, not a
charter amendment, and therefore the City Secretary had no duty to count
signatures or certify the number to the City Council; (2) the trial court decided the
case on the merits without giving the City proper notice of trial; and (3) the order
granted Wilson injunctive relief without requiring him to meet the requirements for
a temporary injunction. Because we conclude that Wilson’s mandamus suit and
the July 28 order are moot, we vacate the trial court’s judgment and dismiss the
case.
Background
In 2015, Wilson conducted a petition drive with the stated purpose of
amending Article II, Section 22 of the Charter of the City of Houston1 to add the
following language:
1
Article II, section 22 of the City’s Charter provides:
Except as required by State or Federal law, the City of Houston shall
not provide employment benefits, including health care, to persons
other than employees, their legal spouses and dependent children;
nor shall the City provide any privilege in promotion, hiring, or
contracting to a person or group on the basis of sexual preference,
either by a vote of the city council or an executive order by the
2
Except as required by State or Federal law, the City of Houston shall
only define gender identity as an individual’s innate identification, as
either a male or female which is assigned at birth. Perceived or
expressed gender identification is not allowed in defining gender
identity. Further, the City of Houston shall require entities doing
business with the city to abide by the same definition of gender
identification.
Wilson filed his petition with the City Secretary on July 9, 2015.2
On July 10, 2015, Wilson filed his original petition for writ of mandamus
against appellants. The mandamus petition alleged that the City Secretary had
failed to perform her ministerial duty under the City Charter to count the number
of signatures on the petition and certify the petition to the City Council. Noting
that “the deadline for calling an election in November of 2015 is on or about
August 19, 2015,” Wilson alleged in his petition that, if the requested injunctive
relief was not granted, it would be “too late for a timely election to be called,”
resulting in irreparable harm. Wilson set the mandamus petition for hearing on
July 13, 2015, three days after the petition had been filed.
Mayor. Further, the City of Houston shall not require entities doing
business with the City to have any of the above benefits or policies.
Charter of the City of Houston, art. II, § 22.
2
From the outset, the parties have disputed the nature of Wilson’s petition. The
City claims that Wilson’s petition is not a charter amendment but is a referendum
on Ordinance No. 2014-530, known as the Houston Equal Rights Ordinance,
which voters rejected on November 3, 2015. Wilson, however, maintains that his
petition is not a referendum but instead a proposed charter amendment that should
be placed on the November 2015 ballot. Given our disposition of this case, we do
not reach this issue.
3
At the hearing, the trial court sustained the City’s objection to proceeding
with insufficient notice. Wilson thereafter amended his mandamus petition and
reset the hearing. In his amended petition, Wilson alleged that if the City Secretary
did not count the signatures and certify the petition, “the Charter Amendment
cannot be placed on the ballot in November 2015,” resulting in irreparable harm.
The trial court held a hearing on Wilson’s first amended petition on July 24,
2015. At the conclusion of the hearing, Wilson’s counsel stated to the court,
I do need to mention the urgency because if we don’t meet certain
deadlines, it—we won’t be able to get the issue on the ballot. Let’s
say hypothetically, if we would win, we need—I think you would
have to rule on this by August 8th as to their duty to count.
On July 28, 2015, the trial court granted Wilson’s mandamus petition and ordered
the City Secretary to count and certify to the City Council the number of signatures
contained in Wilson’s petition within thirty days from the date of filing of the
petition, i.e., July 9, 2015.3
3
On the same day that the trial court granted Wilson’s petition, the Texas Supreme
Court decided In re Jared Woodfill, 470 S.W.3d 473 (Tex. 2015), ordering the
City Council to reconsider the equal rights ordinance, and if it did not repeal the
ordinance, to submit it to the voters in the next City election. Id. at 481. The
Council did not repeal the ordinance but instead voted to put it on the November
2015 ballot.
4
On August 7, 2015, the City filed a notice of interlocutory appeal of the July
28, 2015 order.4 In response, Wilson filed an emergency motion to dismiss and,
alternatively, to refer enforcement of the mandamus to the trial court. By order
dated August 19, 2015, this Court denied Wilson’s motion and directed the City to
file a written response within ten days showing the basis for the Court’s
jurisdiction. The City timely filed its response, arguing that the trial court’s July
28 order was a mandatory temporary injunction and, therefore, appealable as an
interlocutory order under Texas Civil Practice and Remedies Code section
51.014(a)(4). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (West Supp.
2015). In his reply, Wilson argued that this Court lacked appellate jurisdiction
because the July 28 order was an order granting a writ of mandamus, not a
temporary injunction.
While the appeal was pending in this Court, Wilson filed an original
emergency petition for writ of mandamus in the Texas Supreme Court on August
24, 2015. In his petition, Wilson argued that this Court’s order granting the City
ten days to show the basis for the Court’s jurisdiction would “likely be too late” for
his proposed amendment to be placed on the November 2015 ballot, and requested
that the Supreme Court issue a writ of mandamus either ordering this Court to
4
Prior to filing its notice, the City had unsuccessfully sought clarification of the
trial court’s order and an extension of time to comply with the order.
5
dismiss the City’s interlocutory appeal for want of jurisdiction or, alternatively,
directing the City Secretary to immediately count and certify to the City Council
the number of valid signatures contained in his petition. On August 28, 2015, the
Court denied Wilson’s petition.
Mootness
In its first issue, the City contends that the deadline for issues to be placed
on the November 2015 ballot and the November 2015 election have passed and,
therefore, Wilson’s underlying mandamus suit and the July 28 order are now moot.
A. Standard of Review and Applicable Law
Whether a court has subject matter jurisdiction is a legal question that is
reviewed de novo. Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 759 (Tex.
App.—Fort Worth 2010, pet. denied); Trulock v. City of Duncanville, 277 S.W.3d
920, 923 (Tex. App.—Dallas 2009, no pet.). The mootness doctrine implicates
subject matter jurisdiction. See Trulock, 277 S.W.3d at 923; City of Shoreacres v.
Tex. Comm’n of Envtl. Quality, 166 S.W.3d 825, 830 (Tex. App.—Austin 2005, no
pet.).
An appellate court is prohibited from deciding a moot controversy or
rendering an advisory opinion. See Nat’l Collegiate Athletic Ass’n v. Jones, 1
S.W.3d 83, 86 (Tex. 1999); City of Farmers Branch v. Ramos, 235 S.W.3d 462,
469 (Tex. App.—Dallas 2007, no pet.) (noting court may only decide issues
6
presenting “a live controversy at the time of the decision”). If a controversy ceases
to exist or the parties lack a legally cognizable interest in the outcome at any stage,
the case becomes moot. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex.
2005); Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (noting “a controversy
must exist between the parties at every stage of the legal proceedings, including the
appeal”). “[C]ourts have an obligation to take into account intervening events that
may render a lawsuit moot.” See Heckman v. Williamson Cnty., 369 S.W.3d 137,
166–67 (Tex. 2012). If a proceeding becomes moot, the court must dismiss the
proceeding for want of jurisdiction. See id.
B. Analysis
When the trial court entered its July 28, 2015 order granting Wilson’s
petition for writ of mandamus, Wilson’s first amended petition was the live
pleading on file. In his amended petition, Wilson sought “to exercise his statutory
right to obtain a vote by the citizens of the city of Houston to decide the matter in
November 2015 election ballot.” Wilson further alleged
If the City Secretary does not count and certify the petitions, the
Charter Amendment cannot be placed on the ballot in November
2015. Further, on reasonable belief, Defendants intend to
unreasonably thwart Wilson’s efforts to obtain a vote on the matter by
delaying the matter in court until the issue becomes moot (emphasis
added).
7
At the July 24 hearing, Wilson’s counsel emphasized the urgency of obtaining a
ruling and advised the court that if Wilson did not meet certain deadlines he would
be unable to have the issue placed on the November 2015 ballot.
In his second amended petition5 (and current live pleading) filed after the
trial court issued its order, Wilson alleged:
Mayor Annise Parker and Houston City Council members [] have a
ministerial duty to order Wilson’s proposed Charter Amendment be
published in the newspaper at least 14 days prior to the subjection
election, and run two consecutive weeks, and then order Wilson’s
proposed amendment to be printed on the election ballots for the
November 2015 election.
....
Wilson hereby demands that each City Council member perform
his/her ministerial duties and, order, or cause Wilson’s Charter
Amendment be placed in the official city newspaper at least two
consecutive weeks prior to the election and cause Wilson’s proposed
Charter Amendment to appear on the election ballot.
....
Wilson seeks to exercise his statutory right to obtain a vote by the
citizens of the city of Houston to decide the matter in November 2015
election ballot. . . . Mayor Parker, Secretary Anna Russell and City
Council owe a duty to Wilson to place the proposed Charter
Amendment on the election ballot for a vote.
....
Wilson, and the people of Houston will suffer irreparable harm if the
proposed Charter Amendment is not put on the election ballot.
5
In addition to the Mayor and City Secretary, Wilson’s second amended petition
named City Council members as defendants in his suit.
8
In his original emergency petition for writ of mandamus filed in the Texas
Supreme Court, Wilson argued that this Court’s August 19, 2015 order granting
the City ten days to show the basis for the Court’s jurisdiction would “likely be too
late” for his proposed amendment to be placed on the November 2015 ballot.
Cognizant of Texas Rule of Appellate Procedure 52.3(e)6 requiring him to first file
his petition with this Court, Wilson asserted that “given the time constraints, there
is simply not enough time to go through both Courts, and thus a ‘compelling
reason’ within the meaning of the rule applies here for Relators to file with this
Court and not the Houston Court of Appeals.”
Wilson’s trial court pleadings, the July 24, 2015 hearing on his mandamus
petition, and his emergency petition for writ of mandamus filed in the Texas
Supreme Court, demonstrate that Wilson’s objective was to have his proposed
amendment placed on the November 2015 ballot. Because the deadline to place
issues on the November 2015 ballot as well as the November 2015 election have
6
Texas Rule of Appellate Procedure 52.3(e) provides:
The petition must state, without argument, the basis of the court’s
jurisdiction. If the Supreme Court and the court of appeals have concurrent
jurisdiction, the petition must be presented first to the court of appeals
unless there is a compelling reason not to do so. If the petition is filed in
the Supreme Court without first being presented to the court of appeals, the
petition must state the compelling reason why the petition was not first
presented to the court of appeals.
TEX. R. APP. P. 52.3.
9
passed, Wilson’s mandamus suit and the July 28 order that is the subject of this
appeal are moot. Hallman, 159 S.W.3d at 642 (noting that if controversy ceases to
exist or parties lack legally cognizable interest in outcome at any stage, case
becomes moot); Jones, 1 S.W.3d at 86 (“A case becomes moot if at any stage there
ceases to be an actual controversy between the parties.”).
In the “Response to Statement of Issues” section of his brief, Wilson states
in conclusory fashion that a claim of mootness “must first be raised by the trial
court.” To the contrary, a case may be dismissed as moot at any stage of the
proceedings, including on appeal. See Heckman, 369 S.W.3d at 162 (“If a case is
or becomes moot, the court must vacate any order or judgment previously issued
and dismiss the case for want of jurisdiction.”). Notably, Wilson acknowledged in
his first amended petition that the issue might become moot, alleging that
“Defendants intend to unreasonably thwart Wilson’s efforts to obtain a vote on the
matter by delaying the matter in court until the issue becomes moot” (emphasis
added).
Accordingly, we sustain the City’s first issue. Because we have concluded
that Wilson’s underlying suit and the trial court’s July 28, 2015 order are moot, we
do not reach the City’s other issues challenging the trial court’s order. See TEX. R.
APP. P. 47.1.
10
Conclusion
We vacate the trial court’s July 28, 2015 order and dismiss the case for want
of jurisdiction.
Russell Lloyd
Justice
Panel consists of Justices Higley, Huddle, and Lloyd.
11
Annise D. Parker, Mayor, Anna Russell, City Secretary, and City of Houston v. David B. Wilson
Combined Opinion