ACCEPTED
01-15-00687-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/1/2015 11:37:43 AM
CHRISTOPHER PRINE
CLERK
No. 01-15-00687-CV
_________________________________ FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS FOR HOUSTON, TEXAS
THE FIRST SUPREME JUDICIAL DISTRICT OF 9/1/2015
TEXAS11:37:43 AM
_________________________________ CHRISTOPHER A. PRINE
Clerk
Annise D. Parker, Mayor, Anna Russell, City Secretary,
and City of Houston
vs.
David B. Wilson
_________________________________
Trial Court Number 2015-39706
270th District Court of Harris County, Texas
____________________________________
REPLY TO RESPONSE TO NOTICE
TO SHOW COURT’S APPELLATE JURISDICTION
________________________________________
James D. Pierce
SBN 15994500
1 Sugar Creek Center 1080
Sugar Land, TX 77478
713-650-0150
jim@jamespierce.com
Attorney for Realtor
David B. Wilson
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IDENTITY OF PARTIES AND COUNSEL
For the sake of simplicity the parties are sometimes referred by their name.
The following is a complete list of all the parties and their attorneys.
Appellee Appellants
David B. Wilson Annise D. Parker, Mayor, Anna Russell,
City Secretary, and City of Houston
Attorney: Attorneys
Donna Edmundson City Attorney
Mr. James D. Pierce Judith L. Ramsey Chief, General
SBN: 06702350 Litigation Section
Attorney At Law Kathleen Hopkins
1 Sugar Creek Center 1080 Alsina Senior Assistant City Attorney
Sugar Land, TX 77478 State Bar No. 09977050
713-650-0150 Patricia L. Casey Senior Assistant City
713-650-0146 Fax Attorney
State Bar No. 03959075 CITY OF
HOUSTON LEGAL DEPARTMENT 900
Bagby, Fourth Floor Houston, Texas
77002 832.393.6491 (Telephone)
832.393.6259 (Facsimile)
kate.alsina@houstontx.gov
pat.casey@houstontx.gov
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STATEMENT OF THE CASE
This is an appeal of an interlocutory order granting a writ of mandamus
compelling one of the Appellee’s Anna Russell, City Secretary, to comply with
ministerial duties to count and certify the petitions presented by over 22,000 voters
for a proposed amendment to Houston's City Charter. See Notice of Interlocutory
Appeal filed on or about August 12, 2015. On August 19, 2015, this Court
questioned its jurisdiction and required a written response from Appellants within 10
days.
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ARGUMENT & AUTHORITIES
Does a Texas Court of Appeals have appellate jurisdiction of an interlocutory
order of mandamus issued by a trial court? The order of the trial court (attached to
the notice of appeal) was not an temporary injunction, it was an order granting a writ
of mandamus. As stated by this Court in its August 19, 2015 order:
This Court generally has jurisdiction only over appeals
from final judgments unless a statute authorizes an
interlocutory appeal.
citing, See CMH Homes v. Perez, 340 S.W.3d 444, 447–48 (Tex. 2011); Paulsen v.
Yarrell, 455 S.W.3d 192, 195 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing
Rusk State Hosp. v. Black, 392 S.W.3d 88, 92 (Tex. 2012)); see also, e.g., Tex. Civ.
Prac. & Rem. Code Ann. § 51.014 (West 2015) (authorizing appeals from certain
interlocutory orders). (Appendix 2). No statutory basis exists for reviewing an
interlocutory mandamus order by appeal.
A writ of mandamus will issue to compel a public official to perform a
ministerial act. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).
A writ of injunction is governed by Chapter 65 of the Texas Civil Practice &
Remedies Code and requires balancing equities. The Texas Legislature permits
interlocutory appeals of temporary injunctions, but makes no allowance for
interlocutory appeals of mandamus orders. Tex. Civ. Pract. & Rem. Code Ann. §
Page -4-
51.014 (4) (West 2015). The historic difference between the two writs is well
documented. See generally, Howard W. Brill, The Citizen's Relief Against Inactive
Federal Officials: Case Studies in Mandamus, Actions "In the Nature of Mandamus,"
and Mandatory Injunctions, 16 Akron Law Review 339 (1983).1 The courts strictly
construe statutes that allow interlocutory appeals. Bally Total Fitness Corp. v.
Jackson, 53 S.W.3d 352 (Tex. 2001). The Appellants place reliance upon Qwest
Communications Corp. v. AT&T Corp., 24 S.W.3d 334, 338 (Tex. 2000). Quest was
a temporary injunction case in which the court entered an order based upon agreement
that purported to settle an application for temporary injunction. Id., at 335. In fact,
the trial court in that Quest stated “[w]ith respect to the plaintiff’s application for
termporary injunction, judgment is rendered.” Id. The Texas Supreme Court
concluded that in character and function of the order was a temporary injunction.
However, no alternative writ or remedy, such as a writ of mandamus, could describe
the Quest trial court’s order. Quest does not support this Court’s exercise of
interlocutory jurisdiction. This Court was correct in questioning its jurisdiction as
appellate jurisdiction is lacking. The appeal should be dismissed.
1. Available at: https://www.uakron.edu/dotAsset/24c1be43-1c6a-49f2-899f-d03fac60cd30.pdf).
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PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee prays that the Appeal
be Dismissed, and for such other and further relief as is just.
Respectfully submitted,
___/S/James D. Pierce________
James D. Pierce(15994500)
1 Sugar Creek Center Suite 1080
Sugar Land, TX 77478
(713) 650-0150
jim@jamespierce.com
Attorney for Appellee
David B. Wilson
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing brief has been
served on the below listed counsel of record this 1st day of September, 2015 through
the Court’s Electronic Filing System.
Respondents
Annise D. Parker, Mayor, Anna Russell, City Secretary, and City of Houston
Attorneys
Donna Edmundson City Attorney
Judith L. Ramsey Chief, General Litigation Section
Kathleen Hopkins
Alsina Senior Assistant City Attorney State Bar No. 09977050
Patricia L. Casey Senior Assistant City Attorney
State Bar No. 03959075 CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby,
Fourth Floor Houston, Texas 77002 832.393.6491 (Telephone) 832.393.6259
(Facsimile) kate.alsina@houstontx.gov pat.casey@houstontx.gov
___/S/James D. Pierce________
James D. Pierce
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