the Board of Trustees of the Houston Firefighters' Relief and Retirement Fund v. the City of Houston, Texas

ACCEPTED
01-12-01167-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/26/2015 2:01:39 PM
CHRISTOPHER PRINE
CLERK

No. 01-12-01167-CV
IN THE FIRST COURT OF APPEALS FILED IN
HOUSTON, TEXAS 1st COURT OF APPEALS
HOUSTON, TEXAS
5/26/2015 2:01:39 PM
THE BOARD OF TRUSTEES OF THE
CHRISTOPHER A. PRINE
HOUSTON FIREFIGHTERS’ RELIEF AND Clerk
RETIREMENT FUND
Appellant
v.

THE CITY OF HOUSTON, TEXAS
Appellee

RESPONSE TO APPELLEE’S MOTION FOR REHEARING

ON APPEAL FROM THE 189TH JUDICIAL DISTRICT COURT
OF HARRIS COUNTY, TEXAS
NO. 2012-28760

WILLIAM A. WORTHINGTON
Texas Bar No. 22010300
JACK G. CARNEGIE
Texas Bar No. 03826100
KELLY H. LEONARD
Texas Bar No. 24078703
Strasburger & Price, LLP
909 Fannin Street, Suite 2300
Houston, Texas 77010-1036
(713) 951-5600
(713) 951-5660 Fax
william.worthington@strasburger.com
jack.carnegie@strasburger.com
kelly.leonard@strasburger.com

Attorneys For Appellant

2105614.4/SPH/43490/0256/052615
 TABLE OF CONTENTS
Page

TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
ARGUMENT .............................................................................................................1
I. The Court Interpreted the Plain Language of the Statute and Did Not
Find It Ambiguous. ..........................................................................................2
II. The Court Considered Previously Whether Section 802.1012 Requires
a Comprehensive Replication Audit Based on the City’s Arguments
and Concluded that It Does Not. ..................................................................... 4
III. Section 802.1012 Does Not Impose a Ministerial Duty on the Board to
Produce the Underlying Materials Requested by the City. ............................. 7
CONCLUSION ..........................................................................................................9
CERTIFICATE OF COMPLIANCE .......................................................................10
CERTIFICATE OF SERVICE ................................................................................11

ii
2105614.4/SPH/43490/0256/052615
 INDEX OF AUTHORITIES

Page(s)
CASES
Anderson v. City of Seven Points,
806 S.W.2d 791 (Tex. 1991) ........................................................................1, 3, 6

Galbraith Eng’g Consultants, Inc. v. Pochucha,
290 S.W.3d 863 (Tex. 2009) ................................................................................ 4
In re Columbia Medical Center of Las Colinas,
290 S.W.3d 204 (Tex. 2009) (orig. proceeding) .................................................. 7
In re Prudential Ins. Co.,
148 S.W.3d 124 (Tex. 2009) (orig. proceeding) .................................................. 7
In re Smith,
333 S.W.3d 582 (Tex. 2011) (orig. proceeding) ..........................................4, 7, 8
Leland v. Brandal,
257 S.W.3d 206 (Tex. 2008) ................................................................................4
Lippencott v. Whisenhunt,
No. 13-0926, Slip Op. at 2, ___ S.W.3d ___ (Tex. Apr. 25, 2015)...................... 4

Living, Inc. v. Redinger,
667 S.W.2d 846 (Tex. App.—Houston [1st Dist.] 1984, no writ) ....................... 2
State Bar of Texas v. Heard,
603 S.W.2d 829 (Tex. 1980) ................................................................................ 3

STATUTES
TEX. CIV. PRAC. & REM. CODE § 103.001.................................................................. 8

TEX. GOV’T CODE ANN. § 311.023 ............................................................................ 4
TEX. GOV’T CODE ANN. § 802.1012(c) ..............................................................1, 2, 5
TEX. GOV’T CODE ANN. § 802.1012 .................................................................passim

iii
2105614.4/SPH/43490/0256/052615
 ARGUMENT
A court must apply a statute as written. It may not amend a statute judicially

by adding words not contained in the language of the statute.

The principal question in this case is the meaning of Texas Government

Code Section 802.1012 and whether it imposes a ministerial duty on the Board of

Trustees of the Houston Firefighters’ Relief and Retirement Fund (“the Board”) to

provide, in connection with an independent actuarial audit under the statute,

particular information to the City of Houston. See TEX. GOV’T CODE ANN. §

802.1012; Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).

That question was addressed fully in the parties’ briefing and at oral

argument. In a thorough and carefully written opinion, the Court concluded that

Section 802.1012(c) does not “prescribe or define a specific duty” for the Board to

provide the particular information requested. Op. at p. 15. The Court therefore

held that Section 802.1012 does not require that the Board provide the City with

“all information . . . requested by the independent actuary.” Op. at p. 17–18.

Rather, Section 802.1012 “suggests an exercise of judgment [by the Board]” in

protecting confidential information. Id. at 17. The Court’s holding, which

considered both the plain language of the statute and its legislative intent, is not

contrary to Texas law.

2105614.4/SPH/43490/0256/052615
 The City’s Motion for Rehearing (“the Motion”) merely disagrees with the

result in this case. The Motion offers no new authority, record citations or

arguments that were not presented to the Court when it rejected the City’s claims

in its Opinion. The Motion should therefore be denied. See, e.g., Living, Inc. v.

Redinger, 667 S.W.2d 846, 856 (Tex. App.—Houston [1st Dist.] 1984, no writ).

I. The Court Interpreted the Plain Language of the Statute and Did Not
Find It Ambiguous.
The City’s Motion presents a series of weak or unsupported assumptions. It

begins with the premise that “the Court [held] that Texas Government Code

Section 802.1012 does not plainly-enough identify the kind of audit it requires of a

pension system’s actuarial evaluation.” Motion at p. 1. Based on this premise, the

City contends that the statute is ambiguous and that the Court should therefore

engage in a protracted statutory analysis to conclude that Section 802.1012

requires a comprehensive, replication audit of the Board’s pension plan.1 Id. at p.

2.

The City raised this same argument in its Response Brief. See Response at

p. 15-17. There, the City addressed the canons of statutory construction and asked

1
The City’s Motion further assumes that, if the statute mandates a replication audit, it
necessarily also mandates the comprehensive disclosure requested of the Board, Motion at 3-4,
and it concludes by assuming that the Board refused to comply with its request to perform a
ministerial duty. Id. at 4-5. While stacking assumptions, the City does not address the premature
timing of both its demand to the Board and its petition for mandamus. Op. at 4-5; See TEX.
GOV’T CODE ANN. § 802.1012(c).

2
2105614.4/SPH/43490/0256/052615
the Court to consider its “context” in interpreting Section 802.1012. Response at

p. 15. The City further urged that, “regardless of whether the language is clear and

unambiguous, the court may consider the circumstances under which the statute

was enacted, the object to be obtained and the consequences of a particular

construction.” Id. In its Motion, the City recites these identical arguments in

asking the Court to reconsider its analysis of Section 802.1012. The Motion

presents nothing new for the Court’s consideration.

Furthermore, the premise upon which the City bases its Motion for

Rehearing lacks foundation. The Court did not conclude that Section 802.1012 is

ambiguous or unclear. To the contrary, the Court held that Section 802.1012 does

not establish “a ministerial (i.e., nondiscretionary) duty ‘to provide and disclose to

the independent actuary . . . all information and/or electronic data (including all

‘census data’) requested by the independent actuary’ for a replication-level audit.”

Op. at p. 17 (citing Anderson, 806 S.W.2d at 793 and quoting trial court’s

December 21, 2012 order in this case). The fact that the statute does not prescribe

a ministerial duty does not render it ambiguous, and the Court’s analysis does not

hinge on whether the statute is ambiguous. The Court considered the plain

language of the statute and whether it requires the Board to perform a ministerial

act under established Texas law. Id.; see, e.g., State Bar of Texas v. Heard, 603

S.W.2d 829 (Tex. 1980).

3
2105614.4/SPH/43490/0256/052615
 Not having found the statute ambiguous, the Court did not need to resort to

legislative cannons of construction to interpret Section 802.1012. The Texas

Supreme Court has observed: “[W]e consider it a fair assumption that the

Legislature tries to say what it means, and therefore the words it chooses should be

the surest guide to legislative intent.” In re Smith, 333 S.W.3d 582, 586 (Tex.

2011) (orig. proceeding) (citations and internal quotations omitted). Courts

therefore first look to a statute’s plain meaning. See Lippencott v. Whisenhunt, No.

13-0926, Slip Op. at 2, ___ S.W.3d ___ (Tex. Apr. 25, 2015) (citing Leland v.

Brandal, 257 S.W.3d 206, 206 (Tex. 2008)). If its language is unambiguous, the

court ends its analysis. Id. Only when statutory language is susceptible to more

than one reasonable interpretation, does the court look beyond the statute’s plain

language for clues to the Legislature’s intended meaning. See Galbraith Eng’g

Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867-68 (Tex. 2009) (referencing

TEX. GOV’T CODE ANN. § 311.023)). The plain meaning of Section 802.1012 is

wholly consistent with the Court’s Opinion, and the Court did not, therefore, need

to look beyond the statute’s language.

II. The Court Considered Previously Whether Section 802.1012 Requires a
Comprehensive Replication Audit Based on the City’s Arguments and
Concluded that It Does Not.
After assuming that the Court held that Section 802.1012 is ambiguous—

which the Court did not—the City suggests in Section II of its Motion that, if the

4
2105614.4/SPH/43490/0256/052615
Court had considered (1) legislative intent, (2) context, (3) the consequences of a

construction, and (4) the public interest, then the Court would necessarily have to

conclude that Section 802.1012 requires a comprehensive, replication audit. See

Motion at p. 2-4. The City briefed this point fully in its Response. See Response

at p. 17-22. 2

And, while the Court did not need to look beyond the plain language of

Section 802.1012 to hold that the statute does not impose a ministerial duty upon

the Board, it did. Reviewing the legislative history of Section 802.1012, the Court

concluded that:

[N]either the language of section 802.1012(c) nor the legislative intent
prescribe or define a specific duty to act and, to the extent it implies a
duty, it fails to do so with the “precision” and “certainty” necessary to
make the action ministerial.

Op. at p. 15 (emphases added). Contrary to the City’s suggestion, the cannons of

construction would not change this result. Nor does the City offer any support for

the proposition that the context, legislative history or any other consideration

would change the outcome in this case. Compare Motion at p. 3-2 with Response

at p. 17-22.

2
The Board also briefed the legislative history of Section 802.1012. In its opening brief, the
Board directed the Court to the purposes underlying Section 802.1012, which was intended “to
improve the quality and consistency of information available to state regulators responsible for
oversight of these [public pension] plans.” See Appellant’s Opening Brief, at p. 23, n.18 & 19.

5
2105614.4/SPH/43490/0256/052615
 The Court’s opinion considered and answered whether—in the context of a

mandamus proceeding—the City carried its summary judgment burden to

demonstrate that the Board lacked discretion in responding to the City’s request.

The City did not establish that Section 802.1012 imposes a ministerial duty on the

Board, and it does not. A ministerial duty must be defined “with sufficient

certainty that nothing is left to the exercise of discretion.” Op. at p. 9 (citing

Anderson, 806 S.W.2d at 792 n.1). Section 802.1012 does not meet this standard.

As the Court concluded, Section 802.1012 confers discretion to the Board in

working with the City in performing the independent actuarial audit of the Fund’s

assets and liabilities.3 The statute does not therefore “require,” “mandate” or

otherwise impose clearly a duty on the Board to disclose “census data” or the other

material requested by the City in this case. See Op. at p. 17. This holding does not

suggest in any way that the statute itself is ambiguous or requires an analysis of its

Legislative history. It does recognize that the statute provides the Board

discretion, and that the Board’s duty under the statute is not, therefore, purely

“ministerial.” Accordingly, mandamus relief is not a remedy for the City’s claims.

3
The City urges the clarity of its interpretation of Section 802.1012 in support of its claim to
mandamus. The City’s auditor, however, performed only “a high level audit” in 2008, which
suggests that the statute does not “clearly” require a replication audit as the City claims. Op. at
16.

6
2105614.4/SPH/43490/0256/052615
If the City disagrees with the statute, its remedy is through legislative and not

judicial review.

III. Section 802.1012 Does Not Impose a Ministerial Duty on the Board to
Produce the Underlying Materials Requested by the City.
In its final argument, the City assumes that the Board had a ministerial duty

to “supply the independent actuary” with the requested information. Motion at p.

4-5. The City’s concluding assumption is likewise without foundation. Section

802.1012 is not ambiguous. See supra at pp. 2 through 4. Nor does Section

802.1012 impose a ministerial duty upon the Board to produce the requested

information. See supra at pp. 4 through 6.

The City relies upon three cases to support its conclusion that the panel was

incorrect in holding that the Board’s duty to produce is not ministerial. The City’s

reliance on each case is misplaced. None of the cases involve the statute or issues

in this case, and two of the cases are original proceedings brought in the court of

appeals challenging a district court ruling and not an alleged statutorily founded

ministerial duty. In re Columbia Medical Center of Las Colinas, 290 S.W.3d 204

(Tex. 2009) (orig. proceeding), is a petition for mandamus review of a trial court’s

order disregarding a jury verdict and granting a new trial. In re Prudential Ins.

Co., 148 S.W.3d 124 (Tex. 2009) (orig. proceeding), is an original proceeding

seeking a writ of mandamus to enforce a contractual jury waiver. Neither case

involves Section 802.1012 or anything like it.

7
2105614.4/SPH/43490/0256/052615
 The third case, In re Smith, 333 S.W.3d 582 (Tex. 2011) (orig. proceeding),

does implicate a statutory provision, but the decision supports the panel’s opinion.

In re Smith arose under the Texas Wrongful Imprisonment Act, TEX. CIV. PRAC. &

REM. CODE § 103.001, which provides monetary compensation to victims of

wrongful conviction and incarceration. The amount of the compensation is

determined by the Texas Comptroller of Public Accounts. Id. at 586-87. The

decision addresses whether mandamus should issue to direct the Comptroller to

recalculate the amount statutorily due to the claimant-former inmate under the

statute at issue in that case. Id.

Neither In re Smith nor the two other cases cited by the City suggest that the

panel erred whatsoever in its interpretation of Section 802.1012 in this case. To

the contrary, In re Smith confirms that this panel was correct in framing its

analysis: whether the plain language of Section 802.1012 required the

performance of a ministerial duty by describing the act clearly and with sufficient

certainty that nothing is left to the exercise of discretion. In re Smith, 333 S.W.3d

at 585 (“The Court’s mandamus authority extends ‘to order or compel the

performance of a judicial, ministerial or discretionary act or duty that, by state law,

the officer or officers are authorized to perform.’); Op. at p. 9. The evidence in

this case does not meet the standard for issuance of a mandamus, and the City’s

8
2105614.4/SPH/43490/0256/052615
citation to three cases arising under other facts and based upon other statutes does

not alter the application of the law to the facts in this case.

The City’s conclusions that (1) the statute is ambiguous, (2) that, upon

analysis, it creates a ministerial duty, and (3) that the Board failed to comply with a

request to perform a ministerial duty were raised and rejected by the Court

previously. Moreover, the cases cited by the City do not support rehearing of the

Court’s Opinion.

CONCLUSION
A well-founded motion for rehearing may rely on subsequent clarifications

of the law or other, new considerations which impact the Court’s analysis. The

City even recognizes that “mandamus lies to correct a newly incorrect application

of the law.” Motion at p. 5. Yet, the City does not point to a change in the law

since this case was briefed or decided or to any other new consideration that would

materially impact the Court’s analysis. The City’s Motion offers nothing that this

Court has not considered already. It should be denied.

WHEREFORE, the Board of Trustees of the Houston Firefighters’ Relief

and Retirement Fund prays that this Court deny The City of Houston’s Motion for

Rehearing, and for such other and further relief, both general and special, whether

at law or in equity, to which it may show itself justly entitled.

9
2105614.4/SPH/43490/0256/052615
 Respectfully submitted,

/s/ William A. Worthington
William A. Worthington
Texas Bar No. 22010300
Jack G. Carnegie
Texas Bar No. 03826100
Kelly H. Leonard
Texas Bar No. 24078703
Strasburger & Price, LLP
909 Fannin St., Suite 2300
Houston, Texas 77010-1036
(713) 951-5600
(713) 951-5660 Fax
william.worthington@strasburger.com
jack.carnegie@strasburger.com
kelly.leonard@strasburger.com

Attorneys For The Board of Trustees
of the Houston Firefighters’ Relief
and Retirement Fund, Appellant

CERTIFICATE OF COMPLIANCE
In accord with Rule 9.4 of the Texas Rules of Appellate Procedure, the
undersigned counsel hereby certifies that this document was generated with a
computer using MS Word and that it contains 2,212 words. Further, this document
was prepared using Times New Roman 14-point font, except for its footnotes
which are no smaller than Times New Roman 12-point font.
Certified to this the 26th day of May, 2015.

/s/ William A. Worthington
William A. Worthington

10
2105614.4/SPH/43490/0256/052615
 CERTIFICATE OF SERVICE
As required by Texas Rules of Appellate Procedure 6.3 and 9.5 (b), (d) and
(e), I certify that a true and correct copy of the foregoing has been forwarded via e-
file to counsel of record on the 26th day of May, 2015:

Donna L. Edmundson
Judith Ramsey
Lynette K. Fons
City of Houston Legal Department
900 Bagby St., 4th FL
Houston, TX 77002
(832) 393-6259 fax

/s/ William A. Worthington
William A. Worthington

11
2105614.4/SPH/43490/0256/052615