ACCEPTED
01-15-00687-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/15/2015 5:13:39 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00687-CV
_______________________________________________
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
In the Court of Appeals for the 10/15/2015 5:13:39 PM
First District of Texas at Houston CHRISTOPHER A. PRINE
_______________________________________________ Clerk
ANNISE D. PARKER, MAYOR, ANNA RUSSELL,
CITY SECRETARY, AND CITY OF HOUSTON,
Appellants
V.
DAVID B. WILSON,
Appellee
_______________________________________________
On Appeal from the 270th Judicial District Court
Harris County, Texas
Trial Court Case No. 2015-39706
______________________________________________________________
Brief of Appellants
______________________________________________________________
Donna Edmundson Kathleen Hopkins Alsina
City Attorney Senior Assistant City Attorney
State Bar No. 09977050
Judith L. Ramsey Patricia L. Casey
Chief, General Litigation Section 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
Attorneys for Appellants
Oral Argument Conditionally Requested
Identity of Parties and Counsel
A complete list of the names and addresses of the parties, the attorneys,
and any other person who has an interest in the outcome of this lawsuit:
Appellants: Counsel for Appellants:
Annise D. Parker, Mayor Appellate Counsel:
Anna Russell, City Secretary
City of Houston Judith L. Ramsey
Kathleen Hopkins Alsina
Patricia L. Casey
CITY OF HOUSTON LEGAL
DEPARTMENT
900 Bagby, Fourth Floor
Houston, Texas 77002
Trial Counsel:
Patricia L. Casey
Darah Eckert
CITY OF HOUSTON LEGAL
DEPARTMENT
900 Bagby, 4th Floor
Houston, Texas 77002
Appellee: Counsel for Appellee
David B. Wilson Appellate Counsel:
James D. Pierce
1 Sugar Creek Center 1080
Sugar Land, TX 77478
Trial Counsel:
Keith Gross
250 Park Ave.
League City, Texas 77573
ii
Table of Contents
Page
Identity of Parties and Counsel ..................................................................... ii
Index of Authorities ..................................................................................... v
Statement Regarding Jurisdiction ................................................................ ix
Statement Regarding Oral Argument ........................................................... ix
Statement of the Case ................................................................................... x
Issues Presented .......................................................................................... xi
Statement of Facts........................................................................................ 1
Summary of the Argument ........................................................................... 5
Argument .................................................................................................... 9
I. Standard of Review ............................................................................. 9
II. The underlying lawsuit and the July 28, 2015 Order are moot and
should be dismissed. ......................................................................... 10
III. The trial court erred in entering the July 28, 2015 Order. .................... 13
A. Wilson’s petition was an untimely referendum, not a charter
amendment. ............................................................................ 13
B. Wilson’s proposed definition of “gender identity” is not
relevant to Section 22 of the City Charter; it is based on and
directly opposed to the definition of “gender identity” in the
equal rights ordinance. ............................................................. 17
C. The trial court erred in ordering the City Secretary to count
and certify the signatures. ......................................................... 20
D. The trial court abused its discretion by proceeding with the
mandamus proceeding without proper notice as required by
the Rules of Civil Procedure. .................................................... 22
iii
E. Wilson sought and received injunctive relief without
meeting the requirements of a temporary injunction. ................. 25
1. The order is a mandatory injunction. ............................... 25
2. Wilson did not prove a right to injunctive relief and
the order does not comply with Rules 683 and 684. .......... 28
Conclusion and Prayer ............................................................................... 30
Certificate of Compliance ........................................................................... 32
Certificate of Service .................................................................................. 32
iv
Index of Authorities
Page(s)
Cases
Anderson v. City of Seven Points,
806 S.W.2d 791 (Tex. 1991) .............................................................passim
Bd. of Prison Comm’rs v. Binford,
259 S.W. 169 (Tex. Civ. App.—Galveston 1924, no writ) ....................... 28
Brines v. McIlhaney,
596 S.W.2d 519 (Tex.1980) .................................................................... 26
Butnaru v. Ford Motor Co.,
84 S.W.3d 198 (Tex. 2002)..................................................................... 29
Camarena v. Tex. Emp’t Comm’n,
754 S.W.2d 149 (Tex. 1988) ................................................................9, 10
City of Houston v. Am. Traffic Solutions, Inc.,
No. H-10-4545, 2011 WL 2462670 (S.D. Tex. June 17, 2011) ............passim
Custom–Crete, Inc. v. K–Bar Servs., Inc.,
82 S.W.3d 655 (Tex. App.—San Antonio 2002, no pet.) ......................... 24
Del Valle Indep. Sch. Dist. v. Lopez,
845 S.W.2d 808 (Tex.1992) .................................................................... 26
Diversicare Gen. Partner, Inc. v. Rubio,
185 S.W.3d 842 (Tex. 2005) ................................................................... 19
Escobar v. Sutherland,
917 S.W.2d 399 (Tex. App.—El Paso 1996, orig. proceeding) ................. 20
Haase v. Glazner,
62 S.W.3d 795 (Tex. 2001)..................................................................... 19
Helix Energy Solutions Grp., Inc. v. Howard,
452 S.W.3d 40 (Tex. App.—Houston [14th Dist.] 2104, no pet.) ... ix, 27, 28
v
In re Chaumette,
456 S.W.3d 299 (Tex. App.—Houston [1st Dist.] 2015, no pet.) .............. 29
In re Crawford & Co.,
458 S.W.3d 920 (Tex. 2015) ................................................................... 19
In re Hardwick,
426 S.W.3d 151 (Tex. App.—Houston [1st Dist.] 2012, no pet.) ......... 25, 26
In re Jared Woodfill,
--- S.W.3d ---, 2015 WL 4498229 (Tex. July 24, 2015) ...................... 2, 4, 21
In re Uresti,
377 S.W.3d 696 (Tex. 2012) ................................................................... 12
In re Williams,
--- S.W.3d ---, 2015 WL 4931372 (Tex. Aug. 19, 2015) .............................. 4
Lancaster v. Lancaster,
155 Tex. 528, 291 S.W.2d 303 (1956) ..................................................... 30
LBL Oil Co. v. Int’l Power Servs., Inc.,
777 S.W.2d 390 (Tex. 1989) ................................................................... 24
Letson v. Barnes,
979 S.W.2d 414 (Tex. App.—Amarillo 1998, pet. denied) ....................... 29
Mattox v. Grimes Cnty. Comm’rs Court,
305 S.W.3d 375 (Tex. App.—Houston [14th Dist. 2010, pet. denied) ....9, 21
Obergefell v. Hodges,
135 S. Ct. 2584 (2015)............................................................................. 18
Patterson v. Planned Parenthood of Houston & Se. Tex., Inc.,
971 S.W.2d 439 (Tex. 1998) ................................................................... 10
Peeples v. Nagel,
137 S.W.2d 1064 (Tex. Civ. App.—Galveston 1940, writ dism’d
judgm’t cor.) ......................................................................................... 28
Polk v. Davidson,
145 Tex. 200, 196 S.W.2d 632 (1946) ..................................................... 12
vi
Qwest Commc’ns Corp. v. AT&T Corp.,
24 S.W.3d 334 (Tex. 2000)........................................................... ix, 26, 30
Robinson v. Parker,
353 S.W.3d 753 (Tex. 2011) ................................................................... 10
Ryland Enter., Inc. v. Weatherspoon,
355 S.W.3d 664 (Tex. 2011) ................................................................... 19
Tobin v. Serna,
277 S.W. 2d 176 (Tex. App.—San Antonio 1955, writ ref’d) ................... 28
Transp. Co. of Tex. v. Robertson Transps., Inc.,
261 S.W.2d 549 (Tex. 1953) ................................................................... 30
Univ. of Tex. Law Sch. v. Tex. Legal Found.,
958 S.W.2d 479 (Tex. App.—Austin 1997, no writ) .................................. 9
Wyly v. Pres. Dallas,
165 S.W.3d 460 (Tex. App.—Dallas 2005, no pet.) ................................. 28
Statutes
Tex. Civ. Prac. & Rem. Code § 6.002............................................................ 4
Tex. Civ. Prac. & Rem. Code § 51.014 .......................................................... 4
Tex. Loc. Gov’t Code § 9.004 ................................................................ 19, 21
Other Authorities
Tex. R. App. P. 29.2 .................................................................................... 4
Tex. R. Civ. P. 245..................................................................................... 24
Tex. R. Civ. P. 680..................................................................................... 28
Tex. R. Civ. P. 683..................................................................................8, 29
Tex. R. Civ. P. 684............................................................................ 8, 29, 30
Tex. R. Civ. P. 687..................................................................................8, 25
vii
City Charter
City of Houston Charter, art. VII-b, § 2 ....................................................... 16
City of Houston Charter, art. VII-b, § 3 ....................................................2, 16
viii
Statement Regarding Jurisdiction
This is an interlocutory appeal from the trial court’s order entered on
July 28, 2015, which states that it grants “Plaintiff’s Application for Writ of
Mandamus.” CR.74. The nature and effect of the order is a mandatory
temporary injunction, for which the proper appellate remedy is an
interlocutory appeal under Texas Civil Practice and Remedies Code
§ 51.014(a)(4). Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex.
2000); Helix Energy Solutions Grp., Inc. v. Howard, 452 S.W.3d 40, 44 (Tex.
App.—Houston [14th Dist.] 2104, no pet.). The Court has jurisdiction under
section 51.014(a)(4) of the Texas Civil Practice and Remedies Code. The
parties have briefed the issue of jurisdiction in response to the Court’s Order of
August 19, 2015.
Statement Regarding Oral Argument
The underlying lawsuit seeks to place a proposition on the November
2015 ballot. The deadline to do so has passed and therefore both the
underlying lawsuit and the order appealed from are moot. Appellants do not
believe oral argument would substantially aid the Court’s decisional process on
this issue. However, if the Court reaches the merits, oral argument may be
ix
helpful on the issue of why the trial court’s July 28, 2015 Order of mandamus
was error. For this reason, Appellants conditionally request oral argument.
Statement of the Case
Nature of the Case: Suit to compel the City Secretary to certify to the City
Council the number of valid signatures on a petition submitted by David B.
Wilson (Wilson) purportedly to amend the City Charter, but in reality to alter
the definition of “gender identity” in the Houston Equal Rights Ordinance
(“equal rights ordinance” or “HERO”).
Course of Proceedings: On July 9, 2015, Wilson presented a petition to the
City Secretary attempting to alter the definition of “gender identity” found in
the equal rights ordinance, but calling it a petition to amend the City Charter.
CR.9. It is undisputed the City Secretary took no action to count the signatures
at that time. On July 10, 2015, Wilson sued, seeking a writ of mandamus to
compel the City Secretary to count the signatures. CR.4-14. Over the City’s
objection to proceeding without proper notice, on July 24, 2015, the trial court
held a hearing on the application for mandamus relief. CR.38; 2RR.1.1
1
The Reporter’s Record filed in this appeal consists of two volumes, but each volume is
labeled “Volume 1 of 1.” Thus, in this brief, Appellants cite to the July 13, 2015 hearing as
“1RR.___” and to the July 24 hearing as “2RR.___.”
x
Disposition: On July 28, 2015, the court ordered the City Secretary to
“count and certify to Houston City Council the number of valid signatures
contained in the petition.” CR.74 (App. A). Under the Order, the City
Secretary was to complete this task within 30 days of the date the petition was
originally filed. CR.74. The defendants, the City Secretary, Mayor Parker, and
the City of Houston (referred to collectively as “the City”) filed a notice of
interlocutory appeal, pursuant to Texas Civil Practice and Remedies Code
§ 51.014(a)(4). CR.91-93.
Trial Court: The Honorable Brent Gamble, Harris County, Texas, 270th
Judicial District Court.
Issues Presented
1. It is too late for Wilson to obtain the relief he pled for,
inclusion of his proposition as a ballot item in the November
2015 election. Therefore, both the July 28, 2015 Order and
the underlying lawsuit are moot and must be dismissed.
2. The trial court erred by requiring the City Secretary to count
the signatures. The petition filed by Wilson is not a charter
amendment but a referendum; as such, its filing was
untimely and triggered no duty for the City Secretary to
count the valid signatures or certify the number to City
Council.
3. The trial court abused its discretion in making what
effectively was a merits decision without giving the City of
Houston proper notice of trial.
xi
4. The trial court abused its discretion when it entered an order
that was in effect a temporary injunction, but without proof
of a probable right to relief or irreparable injury, and without
meeting the procedural requirements of specificity and a
bond under Texas Rules of Civil Procedure 683 and 684.
xii
Statement of Facts
On May 28, 2014, the Houston City Council voted to pass Ordinance
No. 2014-530, known as the Houston Equal Rights Ordinance, also referred to
as “HERO.” Supp.CR.___2 (App. B). The ordinance was officially published
on June 3, 2014. The equal rights ordinance prohibits discrimination based on
an individual’s sex, race, color, ethnicity, national origin, age, familial status,
marital status, religion, disability, sexual orientation, genetic information,
gender identity, or pregnancy in city contracts, public accommodations,
private employment (excluding religious organizations), city services, city
employment and housing. Supp.CR.___ (App. B). The ordinance included a
definition of “gender identity.” Supp.CR.___ (App. B). This is the only place
in the entire City Code of Ordinances or City Charter where “gender identity”
is ever mentioned.
The equal rights ordinance was the subject of a timely-filed referendum
to repeal the ordinance, which eventually was the subject of a jury trial3 and a
2
Appellants’ exhibits were requested but were not included in the original Clerk’s Record.
The Appellants have requested a Supplemental Clerk’s Record to correct the error. Because
the Supplemental Record was not filed by the deadline for this brief, Appellants will file an
amended brief to include all citations to the supplemental record.
3
Woodfill, et al. v. Anna Russell, City Secretary, et al., No. 2014-44974, in the 152nd Judicial
District Court of Harris County, Texas.
petition for writ of mandamus to the Texas Supreme Court.4 During the same
time period, Wilson was circulating his own separate petitions for adoption of
a definition of “gender identity” that was contrary to the definition in the equal
rights ordinance. 1RR.11:7-23.
On July 9, 2015, over a year after the equal rights ordinance was
adopted, Wilson presented his petition to the City Secretary. CR.61. Under the
City Charter, a referendum on an ordinance must be filed within 30 days of the
day the ordinance was published and must conform to specific “form and
manner” requirements, including a requirement that there be a circulator’s
affidavit on every page.5 Wilson’s petition was an untimely referendum and
did not conform to those requirements. The City Secretary took no action to
count the signatures at that time.
Wilson alleged his petition was not a referendum on the ordinance but
was instead a “charter amendment.” CR.5. On July 10, 2015, the next day, he
filed in the district court a pleading entitled “Original Petition for Mandamus”
against the City Secretary, the Mayor, and the City of Houston. CR.4. Wilson
pled for “mandatory injunctive relief to require each of the Respondents to fulfill
their ministerial duties.” CR.12 (emphasis added). He sought “all other and
4
In re Jared Woodfill, --- S.W.3d ---, 2015 WL 4498229 (Tex. July 24, 2015).
5
City of Houston Charter, art. VII-b, § 3.
2
further declaratory and injunctive relief to which Petitioners may show
themselves to be justly entitled.” CR.13 (emphasis added). Before the City was
served with the Petition, it was served with a “Notice of Hearing” setting a
“Motion to Mandamus” for hearing on Monday, July 13, 2015 at 9:00 a.m.,
three days after the petition had been filed. CR.15.
At the July 13, 2015 hearing, the Court sustained the City’s objection to
proceeding with insufficient notice. Wilson amended his lawsuit and
immediately reset the mandamus to July 24, 2015. CR.23, 30. In the first
amended petition, Wilson dropped his allegations against the City and the
Mayor, and asserted a claim for a declaratory judgment with respect to the
duty of the City Secretary.6 CR.27. He also removed the request for injunctive
relief. CR.27.
Just two weeks after the original petition was filed, the trial judge held a
hearing on Wilson’s petition for writ of mandamus. Wilson offered no
evidence at the hearing, but in argument asked the court to grant immediate
emergency relief. 2RR.35:18-23. On July 28, 2015, the trial court entered an
order that
6
The City and Mayor were still named as parties but the only claims in the body of the
petition were against the City Secretary. Wilson later also added claims against City
Council members. CR.75.
3
Anna Russell in her capacity as City Secretary for the City of
Houston shall count and certify to Houston City Council the
number of valid signatures contained in the petition submitted by
Plaintiff on or before 30 (thirty) days from the date the same were
filed, namely July 9, 2015.
CR.74.
The City unsuccessfully sought clarification of the Order and an
extension of time, based on Ms. Russell’s affidavit that she did not believe that
she and her staff would be able to timely comply. Supp.CR.___. On August 7,
2015, the City timely filed a notice of interlocutory appeal and superseded the
order. Tex. Civ. Prac. & Rem. Code § 51.014(a)(4) and 6.002; Tex. R. App. P.
29.2.
On July 24, 2015, the Texas Supreme Court decided In re Jared Woodfill,
ordering City Council to reconsider the equal rights ordinance, and if they did
not repeal it, to submit the equal rights ordinance to the voters in the next City
election. --- S.W.3d ---, 2015 WL 4498229 (Tex. July 24, 2015). Council did
not repeal the ordinance and voted to put it on the ballot in November, 2015.
In a second opinion regarding the language required on the ballot, the
Supreme Court held that the vote was to “submit the ordinance” for the voters’
approval; it was not a vote to “repeal” the ordinance. In re Williams, --- S.W.3d
---, 2015 WL 4931372 (Tex. Aug. 19, 2015). Therefore whether the equal rights
ordinance, including its definition of “gender identity,” should be included in
4
the Code of Ordinances will be voted on by the voters in the City of Houston
in the November 2015 election.
Summary of the Argument
The Houston Equal Rights Ordinance, if approved by the voters, will
prohibit discrimination in city employment and city services, city contracts,
public accommodations, private employment, and housing. Like others who
have opposed the Ordinance, Wilson’s objection to it has always been focused
on its definition of “gender identity.” Wilson is concerned about the effect of
this provision on the safety of public bathrooms.
The substantive issue raised by this lawsuit is whether Wilson’s petition
to submit to the voters a definition of “gender identity” contrary to that in the
equal rights ordinance was in form and effect a petition for an amendment to
the City of Houston Charter, as he claims, or whether it was a referendum to
repeal a term of the ordinance. The answer to that question is fundamental to
whether Wilson was entitled to the relief he sought—that the City Secretary be
ordered to count and certify the number of valid signatures in time for the
November 2015 election.
The City was faced with the same issue in a challenge to its red-light
camera ordinance in 2010, where it accepted the citizens’ characterization of
the petition as a charter amendment. A federal district court ultimately ruled
5
that the City was wrong not to look beyond the “label” of the petition, holding
it is the “character and effect” of the proposition, not the “label” on it, that
determines if it is a charter amendment or a referendum on an ordinance. City
of Houston v. Am. Traffic Solutions, Inc., No. H-10-4545, 2011 WL 2462670 (S.D.
Tex. June 17, 2011).
Here, the trial court never answered the basic question of the character of
Wilson’s petition. It accepted Wilson’s label and on that faulty foundation
entered an order unsupported by either fact or law. For that reason alone, the
order compelling the City Secretary to count and certify the number of valid
signatures was error. CR.74. The City Secretary had no ministerial duty to
count signatures because the petition was, in “character and effect,” a
referendum to repeal the definition of “gender identity” in the equal rights
ordinance and was untimely. Further, even accepting Wilson’s label of the
petition as a charter amendment, he could point to nothing establishing a clear
duty for the City Secretary to perform any action within the 30-day time limit
he sued for.
But although these substantive issues are important, several procedural
issues should preclude the Court from ever reaching them. First and most
important, Wilson’s lawsuit, as well as the July 28 Order, are now moot.
Wilson’s pleadings in the trial court sought immediate relief in order to meet
6
the deadlines for the November 2015 election. Even while the case was
pending in this Court, he went directly to the Texas Supreme Court seeking a
writ of mandamus, arguing there was a compelling reason to do so because
without immediate relief it would “likely be too late” for his proposition to be
placed on the November 2015 ballot.7 The deadline for items to be placed on
the ballot is now passed and Wilson’s claims, along with the July 28 Order, are
moot. A lawsuit on his proposition to redefine “gender identity” will not be
ripe until and if the citizens of the City of Houston vote in favor of the equal
rights ordinance.
The trial court also abused its discretion in the procedure it followed. A
trial court mandamus is not a common procedure, but the Texas Supreme
Court has made clear it is a civil action and is subject to the rules of procedure
just as in any other suit. Anderson v. City of Seven Points, 806 S.W.2d 791, 792
(Tex. 1991). It is not in itself a basis for emergency injunctive relief.
Nevertheless, over the City’s objection, the trial court held a hearing on the
petition for writ of mandamus just fourteen days after Wilson filed suit and
four days later entered an order granting Wilson the relief he sought—all
before even the deadline for filing an original answer had passed. The failure to
7
See In re Wilson, No. 15-0636, in the Texas Supreme Court, Petition for Writ of
Mandamus, p. 12. (Copy attached as App. C.)
7
follow the rules of procedure, including allowing at least 45-days’ notice of a
trial setting on the petition for writ of mandamus, was a clear abuse of
discretion.
In fact, although he noticed the July 24 hearing as a hearing on the
petition for writ of mandamus, the relief Wilson sought, and that the trial court
granted, was injunctive—a mandatory injunction under Rule 687 of the Texas
Rules of Civil Procedure. The City Secretary was clearly required to “obey and
execute such order as the judge has seen proper to make,” the definition of a
mandatory injunction. Tex. R. Civ. P. 687. It is the character and function of
an order, not its title, that determine its classification.
But although it granted injunctive relief, the July 28 Order was
unsupported by any witness testimony or documentary evidence, did not “set
forth the reasons for its issuance,” did not set a trial date, and was not
supported by a bond. Tex. R. Civ. P. 683, 684. The Order fails to comply with
any of the evidentiary or procedural requirements for an injunction.
For all of these reasons, the trial court erred in signing the order. This
Court should find Wilson’s lawsuit moot, and declare the order of July 28,
2015 void. If the Court does not find the lawsuit moot, it should reverse and
vacate the order.
8
Argument
I. Standard of Review
An original proceeding for a writ of mandamus initiated in the trial court
is a civil action subject to trial and appeal on substantive law issues and subject
to the rules of procedure as any other civil suit. Anderson, 806 S.W.2d at 792
n.2 (Tex. 1991). The standard of review on appeal is the same as in any civil
proceeding. Id. at n.2, 3 (applying sufficiency of the evidence review to trial
court’s fact findings in suit for mandamus); see also, e.g., Univ. of Tex. Law Sch. v.
Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.—Austin 1997, no writ)
(citing Anderson) (“[W]e do not review the trial court’s findings of fact and
conclusions of law under the abuse of discretion standard applicable to
mandamus actions originating in appellate courts … [w]e review them in
accordance with the standards generally applicable to trial-court findings and
conclusions.”); Mattox v. Grimes Cnty. Comm’rs Court, 305 S.W.3d 375, 380-81
(Tex. App.—Houston [14th Dist. 2010, pet. denied) (in mandamus suit
decided by summary judgment, applying summary judgment standard).
However here, because no evidence was presented at the hearing, there are no
fact-findings and no evidence to review.
This Court reviews the issue of mootness as a question of law. See, e.g.,
Camarena v. Tex. Emp’t Comm’n, 754 S.W.2d 149, 151 (Tex. 1988).
9
II. The underlying lawsuit and the July 28, 2015 Order are moot and
should be dismissed.
Wilson’s lawsuit is moot; it will not be ripe until and if the equal rights
ordinance is approved by the voters in the November 2015 election. Wilson
admitted that his claims would be moot if not placed on the November 2015
ballot when he filed an emergency petition for writ of mandamus in the Texas
Supreme Court on August 24, 2015, while the appeal was pending.8 Wilson
argued he had a compelling reason to go directly to the Supreme Court to seek
a mandamus because otherwise he would miss the deadline for the November
2015 election.9
Mootness and ripeness are related doctrines. Both limit courts to
deciding cases in which an actual controversy exists. Camarena, 754 S.W.2d at
151 (holding the mootness doctrine limits courts to deciding cases in which an
actual controversy exists); Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011)
(“Ripeness … emphasizes the need for a concrete injury for a justiciable claim
to be presented.”) (citations omitted). Both doctrines are rooted in the
prohibition against advisory opinions. See Patterson v. Planned Parenthood of
Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998).
8
In re Wilson, No. 15-0636, in the Texas Supreme Court, Petition for Writ of Mandamus, p.
12. (App. C).
9
Id. at p. 14. (App. C).
10
On July 28, 2015, when the court entered the order of mandamus, the
live pleading was the First Amended Petition, where 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.” CR.26.
Wilson argued that “irreparable harm” would result from failure to place
the item on the November 2015 ballot, and that otherwise “the issue becomes
moot.” CR.27.
Wilson’s current live pleading below, the Second Amended Petition
(filed after the July 24 hearing) pleads:
that City Council members “order Wilson’s proposed amendment
to be printed on the election ballot for the November 2015
election”;
… 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 weeks prior to the
election and cause Wilson’s proposed Charter Amendment to
appear on the election ballot;
that 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”; and
that “Wilson, and the people of Houston will suffer irreparable
harm if the proposed Charter Amendment is not put on the
election ballot.”
CR.78, 79.
In his Prayer, he specifically seeks
11
… that Wilson’s proposed Charter Amendment be placed on the
November election ballot….
CR.81.
Wilson also sued all City Council members for the purpose of including
his proposition on the ballot for the November 2015 election, and alleged
damages of $80,000 and attorneys’ fees if Defendants “maliciously failed to
perform.” CR.80.10
The deadline for issues to be placed on the November 2015 ballot has
passed.11 The July 28, 2015 Order that is the subject of this appeal is moot.
Wilson’s mandamus suit seeking that his petition be placed on the November
2015 ballot is also moot and must be dismissed. See Polk v. Davidson, 145 Tex.
200, 196 S.W.2d 632, 634 (1946) (“[W]hen the time comes that the issues
cannot be heard and a final judgment entered adjudging the validity or
invalidity of the nominee’s certificate so that absentee ballots can be printed
and available to voters as and when required by statute, the contest is moot
and must be dismissed.”); see also, e.g., In re Uresti, 377 S.W.3d 696, 696 (Tex.
2012) (holding once an election begins, a challenge to the candidacy of an
individual becomes moot).
10
These claims are unsupported by any factual allegations.
11
At the Texas Supreme Court Wilson argued the deadline was August 31, 2015.
12
III. The trial court erred in entering the July 28, 2015 Order.
If the Court does not dismiss the underlying case as moot and reaches
the merits of this appeal, it should find a) that Wilson’s petition was a
referendum to repeal the definition of “gender identity” in the equal rights
ordinance, not a charter amendment; b) that the City Secretary had no duty to
count and certify the signatures; c) that the trial court failed to comply with the
rules of procedure; and d) that the court’s order was a temporary injunction
unsupported by evidence of a probable right to relief or irreparable injury.
A. Wilson’s petition was an untimely referendum, not a charter
amendment.
Wilson’s petition was an untimely effort to repeal the definition of
“gender identity” in the equal rights ordinance. He cannot change its character
by claiming it is something else. The nature of the petition is fundamental to
understanding why the trial court erred in ordering the City Secretary to count
and certify the signatures.
This is not the first time this issue has arisen in Houston. In City of
Houston v. American Traffic Solutions, Inc., federal district judge Lynn Hughes
considered whether a petition to remove red light cameras was a charter
amendment or a referendum. 2011 WL 2462670. The issues in that case are
almost identical to those here, and Judge Hughes’ opinion provides a clear
roadmap for analyzing whether Wilson’s petition is a charter amendment as he
13
claims, or a mislabeled petition to repeal a part of the equal rights ordinance.
The effect of the proposed amendment is key to that distinction.
ATS arose from a controversy regarding the use of cameras to record
cars running red lights, resulting in penalties to the car owners. Id., at *1. The
City adopted an ordinance to use the cameras and two years later hired ATS to
install the cameras, administer the notices to car owners, and collect the
penalties. Four years after the cameras were installed, a citizen group
petitioned the City for an election to amend the City Charter to disallow the
use of cameras. The City accepted the petition as the citizens characterized it,
as a petition to amend the City Charter, and called a special election. A
majority of the voters agreed that the cameras should not be used. As a result,
the City amended its Charter and then cancelled its contract with ATS.
ATS sued the City in federal court for breach of contract, arguing that
the charter amendment was invalid. ATS argued that the citizen’s petition was
in reality a referendum targeted to repeal a specific ordinance. The validity of
the election, and the City’s right to cancel the contract, depended on the nature
of the petition.
The court explained the differences in the City Charter and ordinances:
The charter, like a constitution, structures the government;
ordinances, like statutes, make policy choices for their operation.
Charters create officers, specify election or appointment, prohibit
types and levels of taxation, and similar elemental things.
14
Ordinances set speed limits, reorganize departments, appropriate,
and similar managerial things. Although this distinction may blur
at the edge, charters and ordinances are different and must be
distinguishable. The rules of Texas and Houston call for them to
be treated differently.
2011 WL 2462670, at *2.
Ordinances, like statutes, “control the ordinary operations of the city.”
Id., at *1. The nature of the proposition regarding red-light cameras was like a
statute and the text of the proposition voted on at the election was taken from
the ordinance. If passed, the effect of the proposition would be to repeal the
ordinance—it could not be enforced with that charter amendment on the
books. In short, “[b]oth the ordinance and the amendment are about exactly
the same thing.” Id., at *2. Judge Hughes held that “given its effect, the
proposition is a referendum.” Id., at *3. Because a referendum petition must be
filed within 30 days of the adoption of the ordinance, it was untimely. Id.
Like the anti-red light petition in ATS, the nature of Wilson’s proposition
to redefine “gender identity” is like a statute. It reflects a policy choice for
operation of city government. In addition, the significant language of the
proposition is taken from the definition of “gender identity” in the equal rights
ordinance:
15
Except as required by State or Federal
Gender identity means an individual’s
innate identification, appearance, law, the City of Houston shall only
define gender identify [sic] as an
expression or behavior as either male
or female, although the same may notindividual innate identification, as
correspond to the individual’s body or
either a male or female which is
gender as assigned at birth. assigned at birth. Perceived or
expressed gender identification is not
Equal Rights Ordinance, § 17-1. allowed in defining gender identify
Supp.CR.___ (emphasis added). (App. [sic].
B).
Plaintiff’s Second Amended Pet., ¶ 7.
CR. 77 (emphasis added).
The effect of the proposition would be to repeal the protections of the
equal rights ordinance (if passed) for one of its protected groups. In short, just
like the red-light camera proposition, Wilson’s petition was in nature and effect
a referendum to repeal a part of the ordinance. Wilson mislabeled the petition
a charter amendment because he filed it far too late to meet the 30-day
referendum deadline. See, City of Houston Charter, art. VII-b, §§ 2(b), (3).
Calling this a petition for a charter amendment does not make it so. It is an
untimely referendum.
In ATS, Judge Hughes quoted Abraham Lincoln: “If Congress said that
a goat’s tail was a leg, how many legs would a goat have? Four. Calling a tail a
leg does not make it so.” 2011 WL 2462670, at *3. Wilson calling his
referendum a “charter amendment” does not make it so.
16
B. Wilson’s proposed definition of “gender identity” is not
relevant to Section 22 of the City Charter; it is based on and
directly opposed to the definition of “gender identity” in the
equal rights ordinance.
In his First Amended Petition, Wilson clearly identified “Ordinance No.
2014-530, Art. 17-2,” the equal rights ordinance, as his target:
The proposed Charter Amendment will benefit the people of
Houston in that it will aid to law enforcement officers in protecting
young boys and girls using the public restrooms from those people
that would enter a public restroom of the opposite sex with the
intent to gratify their sexual perversions by watching others. Under
a current ordinance, gender identification is too broadly defined to
protect children from child predators and provides: City Ordinance
No. 2014-530, Article 17-2 provides: Gender Identity means an
individual’s innate identification, appearance, expression or
behavior as either male or female, although the same may not
correspond to the individual’s body or gender as assigned at birth.
CR.26.
To try to avoid the fact that his referendum was untimely, Wilson claimed
his petition seeks to amend not the equal rights ordinance, but Section 22 of the
City Charter. CR.24. But Section 22 does not in any way address gender
identity; it concerns employment benefits for City employees and those doing
business with the City. Section 22 provides, in part:
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 Mayor. Further, the City of Houston shall not require
17
entities doing business with the City to have any of the above
benefits or policies.
Supp.CR.___.
Section 22 does not use the term “gender identity”; and following
Obergefell v. Hodges, the term “legal spouses” is not impacted by gender. 135 S.
Ct. 2584 (2015). Neither does Section 22 concern sex-segregated restrooms.
The term “gender identity” is nowhere found in the City Charter.
That Wilson’s true goal was to repeal the definition of gender identity in
the equal rights ordinance is also evidenced by his letter accompanying the
June, 2015 petition drive. There, Wilson referenced what he referred to as the
“Bathroom Ordinance”:
You may have heard that the two previous petition drives
challenging and seeking to reverse Mayor Parker’s Bathroom
Ordinance are either tied up in court or rejected by the City.
Supp.CR.___ (emphasis added).
The cover letter he sent with the April, 2015 petition again identified the
target of his efforts:
The City of Houston Mayor Parker is pushing her personal
homosexual agenda with Executive Order (1-50) and City of
Houston Ordinance (#2014-530) [the equal rights ordinance]
which allows men to use the women’s restroom if they perceive or
express themselves as women.
Supp.CR.___ (emphasis added).
18
Wilson requested that the City Secretary count and certify the results of
his petition within 30 days, the time limit set out in Houston City Charter,
article VII-b, the City Charter provision governing referenda. The City Charter
does not include a similar provision for charter amendments. Only state law
provides a source for citizen-initiated charter amendments, and it does not
include any statute imposing a ministerial duty on a city secretary or any other
official to count and certify within 30 days. Tex. Loc. Gov’t Code § 9.004.
Just like a court must look beyond the title of a pleading to its substance,
neither the City nor this Court is bound to accept Wilson’s characterization of
his petition as a charter amendment. See Ryland Enter., Inc. v. Weatherspoon, 355
S.W.3d 664, 666 (Tex. 2011) (observing that courts should acknowledge the
substance of the relief sought despite the formal styling of the pleading). See
also, e.g., Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005)
(holding that a health care liability claim cannot be recast as another cause of
action to avoid statutory requirements); Haase v. Glazner, 62 S.W.3d 795, 799
(Tex. 2001) (holding that if it permitted a fraud claim seeking to recover the
benefit of the unenforceable bargain, the court would deprive the statute of
frauds of any effect); In re Crawford & Co., 458 S.W.3d 920, 926 (Tex. 2015)
(holding that claimants could not recast their claims to avoid the exclusive
jurisdiction of administrative agency).
19
The trial court abused its discretion by failing to look beyond Wilson’s
characterization of the petition to determine its true character and effect. Had
it done so, the court would have seen, as Judge Hughes did in ATS, that the
petition does not seek a charter amendment; it seeks a referendum to
effectively repeal the part of the equal rights ordinance that would protect
individuals based on their gender identity.
C. The trial court erred in ordering the City Secretary to count and
certify the signatures.
As the federal court’s decision in ATS made clear, the City Secretary
could not simply accept Wilson’s “label” of his petition as a charter
amendment. The City Secretary had no ministerial duty to accept the petition
or begin counting when the petition did not comply with City requirements as
to form, content and procedure for a referendum. See, e.g., Escobar v. Sutherland,
917 S.W.2d 399, 406 (Tex. App.—El Paso 1996, orig. proceeding) (where
application for a place on the electoral ballot did not comply with form content
and procedure required by law, application must be rejected). Those
procedures assure an orderly process for challenging City ordinances in a
timely manner. The trial court’s order that the City Secretary count signatures
and certify the number of valid signatures, even though Wilson had not met
the 30-day deadline for challenging a City ordinance, defeats that procedure.
20
And even accepting Wilson’s characterization of the petition as a charter
amendment, the trial court still abused its discretion because it ordered that the
City Secretary perform ministerial duties that are not clearly specified and
supported by law. A court cannot issue mandamus relief against a public
official unless “the law clearly spells out the duty to be performed by the
official with sufficient certainty that nothing is left to the exercise of
discretion.” In re Jared Woodfill, 2015 WL 4498229, at *3 (quoting Anderson,
806 S.W.2d at 793). See also Mattox, 305 S.W.3d at 380.
Wilson stated to the trial court that the relief he was seeking was under
the Local Government Code; he also admitted that nothing in that law
required the City Secretary to count signatures for an amendment to the City
Charter. 2RR.26 Nor does the Local Government Code mandate a 30-day
period for signatures to be counted for a charter amendment. Tex. Loc. Gov’t
Code § 9.004. Section 9.004 imposes no time limit for the governing body to
submit a proposed charter amendment to the voters and no time limit for
determining if a petition is signed by a number of qualified voters. Nothing in
Section 9.004 imposes on the City Secretary a “clear duty” to count and certify
signatures for a charter amendment within 30 days of the date the petition is
delivered.
21
If Wilson is in fact seeking an amendment to the City Charter as he
claims and pleads, there was no duty for the City Secretary to comply within
30 days. If, as the City asserts, the nature and effect of Wilson’s petition,
demonstrates that it is a referendum on the equal rights ordinance, it was
untimely. Either way, the trial court erred by ordering the City Secretary to
count and certify the signatures.
D. The trial court abused its discretion by proceeding with the
mandamus proceeding without proper notice as required by the
Rules of Civil Procedure.
The trial court erred not only by the substance of the order, but also by
the procedure it followed. The court failed to comply with the rules of civil
procedure with respect to the hearing on the mandamus petition and in so
doing deprived the City of due process of law.
An original proceeding for a writ of mandamus issued in a trial court is a
civil action subject to trial and appeal on substantive law issues and is subject
to rules of procedure just as any other civil suit. Anderson, 806 S.W.2d at 792.
A mandamus must proceed to trial and judgment just as in any other action.
Id. “There is no distinguishable difference in principle in the course of
proceeding and result attained in it and any other suit in the District Court.”
Id.
22
In his “Original Petition for Mandamus,” Wilson pled for “mandatory
injunctive relief to require each of the Respondents to fulfill their ministerial
duties” and in his prayer sought “all further declaratory and injunctive relief to
which Petitioners may show themselves to be justly entitled.” CR.12-13
(emphasis added). Even before the City was served with the Petition, it was
served with a “Notice of Hearing” setting a “Motion to Mandamus” for
hearing on Monday, July 13, 2015 at 9:00 a.m., three days after the petition
had been filed. CR.15.
The City objected to the short notice and the July 13 hearing was reset to
July 24, 2015. CR.18, 30. By that time Wilson had amended his petition to add
a claim for declaratory relief. CR.27. While he dropped the direct references to
injunctive relief, Wilson still pled he had suffered and would continue to suffer
“irreparable harm” and that he had “no other adequate remedy at law.”
CR.26, 27. Fourteen days after the original petition was filed, Wilson had his
hearing, but he offered no evidence to support his claims. Nevertheless, on
July 28, 2015, the trial court entered an order that
Anna Russell in her capacity as City Secretary for the City of
Houston shall count and certify to Houston City Council the
number of valid signatures contained in the petition submitted by
Plaintiff on or before 30 (thirty) days from the date the same were
filed, namely July 9, 2015.
23
CR.74.12
If the hearing on July 24, 2015 was in fact a hearing for final relief on a
petition for writ of mandamus, the trial court abused its discretion when it
failed to follow the Texas Rules of Civil Procedure and proceeded with the
hearing on insufficient notice. The City was entitled to a minimum of 20 days
to prepare and serve an answer and to reasonable notice of not less than 45
days for trial, just as with any other lawsuit. Anderson, 806 S.W.2d at 792; Tex.
R. Civ. P. 245. When a defendant makes an appearance in a case, as the City
Secretary did here, the 45 days’ notice of a trial setting is a matter of due
process and is mandatory. Tex. R. Civ. P. 245; see LBL Oil Co. v. Int’l Power
Servs., Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (per curiam); Custom–Crete,
Inc. v. K–Bar Servs., Inc., 82 S.W.3d 655, 659 (Tex. App.—San Antonio 2002,
no pet.). Failure to give proper notice is grounds for reversal. Custom-Crete, 82
S.W.3d at 659.
The hearing on the petition for writ of mandamus proceeded, over the
City Secretary’s objection, only fourteen days after Wilson filed his petition.
CR.32; 2RR.1. The order purported to be a final ruling on “Plaintiff’s
Application for Writ of Mandamus.” CR.74. In this Court, Wilson disputes
12
On July 30, 2015, Wilson again amended his petition to sue the City Council members
and add a claim for money damages. City Council members were not parties to this suit at
the time the trial court entered its Order.
24
the order is in reality a temporary injunction. See Reply to Response to Notice
to Show Court’s Appellate Jurisdiction, filed September 1, 2015. However, if
this order is, as Wilson contends, a final order on his petition for writ of
mandamus, the Appellants should have been afforded forty-five days’ notice of
the hearing, as required by Rule 245 and due process.
E. Wilson sought and received injunctive relief without meeting
the requirements of a temporary injunction.
1. The order is a mandatory injunction.
The hearing on July 24, 2015 did not result in a final order on a petition
for writ of mandamus, but instead in an order that is, in its character and
function, a temporary injunction. Wilson originally pled for injunctive relief
and the relief he sought and obtained was injunctive relief.
Under Rule 687, a temporary injunction may be either prohibitive or
mandatory—it may order a party to “desist and refrain from the commission
or continuance of the act enjoined,” or to “obey and execute such order as the
judge has seen proper to make.” Tex. R. Civ. P. 687; In re Hardwick, 426
S.W.3d 151, 159 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (“An
injunction may be either prohibitive, forbidding particular conduct, or
mandatory, requiring particular conduct.”). The July 28 order was mandatory.
It ordered that the City Secretary “shall count and certify to the Houston City
25
Council the number of valid signatures.” CR.74. Although the order does not
acknowledge it is a mandatory temporary injunction, the Texas Supreme
Court has long ago “rejected the notion that ‘matters of form control the nature
of the order itself.’” Qwest, 24 S.W.3d at 336 (quoting Del Valle Indep. Sch. Dist.
v. Lopez, 845 S.W.2d 808, 809 (Tex.1992)); see also, e.g., In re Hardwick, 426
S.W.3d at 159 (citing Del Valle, 845 S.W.2d at 809) (“Matters of form do not
control whether an order is an injunction; rather ‘it is the character and
function of an order that determine its classification.’”).
In Qwest, the Supreme Court held that a trial court’s interlocutory order
that compelled Qwest to undertake certain monitoring and notice provisions
when conducting its operations was a temporary injunction. The Court
explained:
In Del Valle Independent School District v. Lopez, we rejected the
notion that “matters of form control the nature of the order itself—
it is the character and function of an order that determine its
classification.” 845 S.W.2d 808, 809 (Tex. 1992). We reasoned
that if errors in the form of the order determined the order’s status,
then those errors would deny review of the very defects that render
the order void. See Del Valle, 845 S.W.2d at 809–10; Brines v.
McIlhaney, 596 S.W.2d 519, 523 (Tex.1980).
Qwest, 24 S.W.3d at 336.
The Fourteenth Court of Appeals’ recent decision in Helix similarly
found that an interlocutory order requiring a maritime employer to make
payments to a seaman was a temporary injunction, even though it was labeled
26
as an order granting a motion to compel. Helix, 452 S.W.3d at 44. Justice
Christopher’s comment in that case applies equally here: “[Plaintiff] has not
cited, and we have not found, any provision of Texas procedural law
authorizing a litigant to obtain an interlocutory order on the merits from a state
court while avoiding both the rules governing summary judgments and those
governing injunctive relief.” Id.
In his Original Petition for Writ of Mandamus, Wilson pled for
injunctive relief. CR.11, 13. Although he dropped the words “injunctive relief”
from his First Amended Petition, the substantive relief he requested remained
the same. CR.27. The specific action the trial court ordered—that the City
Secretary “count and certify” the signatures on a short deadline—is a classic
example of a mandatory temporary injunction. See, e.g., Helix, 452 S.W.3d at
44.
There are no special provisions in the rules of civil procedure for
immediate, emergency relief in a suit seeking a trial court mandamus. A party
who files a petition for writ of mandamus in a district court and wants
immediate temporary relief has the same burden and must follow the same
procedures as in any other suit. He must seek temporary injunctive relief under
Rules 680-693 of the Texas Rules of Civil Procedure. See Tobin v. Serna, 277
S.W. 2d 176, 177 (Tex. App.—San Antonio 1955, writ ref’d); Tex. R. Civ. P.
27
680 et seq.13 The requirements for obtaining a temporary injunction may not be
evaded by calling it something else. See, e.g., Helix, 452 S.W.3d at 44 (holding
order “to compel” payments was in reality a mandatory temporary injunction).
The July 28 Order was not the result of a summary judgment
proceeding, a trial on the merits, or even an evidentiary hearing. At the time
the order was entered, there was still pending an asserted claim for a
declaratory judgment. CR.27. Although all of the underlying claims are now
moot, at the time the July 28 Order was entered it was an interlocutory order,
and in character and function it was a temporary injunction.
2. Wilson did not prove a right to injunctive relief and the
order does not comply with Rules 683 and 684.
The July 28 Order must be reviewed as a temporary injunction. To
obtain a temporary injunction, the applicant must plead and prove: (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
13
See also, e.g., Wyly v. Pres. Dallas, 165 S.W.3d 460, 462 (Tex. App.—Dallas 2005, no pet.)
(interlocutory appeal in suit seeking temporary injunction and writ of mandamus); Peeples v.
Nagel, 137 S.W.2d 1064, 1066, 1067 (Tex. Civ. App.—Galveston 1940, writ dism’d judgm’t
cor.) (in suit seeking temporary injunction, mandatory injunction, and mandamus, trial
court abused its discretion in not having preserved subject matter of suit by issuing
temporary injunction); Bd. of Prison Comm’rs v. Binford, 259 S.W. 169 (Tex. Civ. App.—
Galveston 1924, no writ) (“[W]e are of the opinion that the trial court had authority or
jurisdiction to hear and determine the suit for mandamus, and pending such hearing, had
authority to issue a temporary injunction for the purpose before stated [to preserve the status
quo].”).
28
Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The party seeking an injunction
must also state a willingness to post bond. Tex. R. Civ. P. 684. And
significantly here, the applicant must introduce at the hearing competent
evidence to support a probable right to recovery and a probable injury. Letson v.
Barnes, 979 S.W.2d 414, 417 (Tex. App.—Amarillo 1998, pet. denied). Wilson
offered no evidence at the hearing to support any of the elements of injunctive
relief.
Rule 683 also requires that an “order granting an injunction … shall set
forth the reasons for its issuance[.]” Tex. R. Civ. P. 683. The trial court must
set forth specific reasons, not merely conclusory statements, in the order
granting temporary injunctive relief. See In re Chaumette, 456 S.W.3d 299, 305
(Tex. App.—Houston [1st Dist.] 2015, no pet.). The order must “set forth the
reasons why the court deems it proper to issue the writ to prevent injury to the
applicant in the interim; that is, the reasons why the court believes the
applicant’s probable right will be endangered if the writ does not issue.” Id.
(citing Transp. Co. of Tex. v. Robertson Transps., Inc., 261 S.W.2d 549, 553 (Tex.
1953)). The trial court’s order does not meet that standard.
The bond provisions of Rule 684 are also mandatory. Rule 684 requires
that before the issuance of the temporary injunction, the applicant “shall
execute and file with the clerk a bond to the adverse party.” Tex. R. Civ. P.
29
684. A temporary injunction is subject to being declared void when a bond is
not posted prior to its issuance. See Qwest, 24 S.W.3d at 337 (emphasis added)
(citing Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956)). No
bond was required here.
The trial court’s July 28 order is not supported by evidence and fails to
comply with any of the procedural or evidentiary requirements for a temporary
injunction. If this Court reaches the issue, it should find the Order is void.
Conclusion and Prayer
The Appellants respectfully pray that this Court dismiss the underlying
suit as moot. If it reaches the merits, the Appellants pray that the Court reverse
and vacate the order of July 28, 2015 and remand to the trial court for further
proceedings, and for such other relief to which they may be entitled.
30
Respectfully submitted,
DONNA L. EDMUNDSON
City Attorney
JUDITH L. RAMSEY
Chief, General Litigation Section
By: /s/ Kathleen Hopkins Alsina
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, 4th Floor
Houston, Texas 77002
832.393.6491 (Telephone)
832.393.6259 (Facsimile)
kate.alsina@houstontx.gov
pat.casey@houstontx.gov
judith.ramsey@houstontx.gov
Attorneys for Appellants
31
Certificate of Compliance
I certify that this brief was prepared in MS Word 2010; the word-count
function shows that, excluding those sections exempted under TRAP 9.4(i)(1),
the brief contains 7,101 words.
/s/ Kathleen Hopkins Alsina
Kathleen Hopkins Alsina
Certificate of Service
I hereby certify that on this 15th day of October, 2015, a true and correct
copy of the foregoing has been served on counsel below via e-service:
James D. Pierce
1 Sugar Creek Center 1080
Sugar Land, TX 77478
jim@jamespierce.com
Attorney for Appellee
/s/ Kathleen Hopkins Alsina
Kathleen Hopkins Alsina
32
Tab A
NO. 2105-39706
DAVID B. WILSON, IN THE DISTRICT COURT OF
vs.
HARRIS COUNTY, TEXAS vo m 03(
ANNISE PARKER, MAYOR, ANNA
RUSSELL, CITY SECRETARY AND
CITY OF HOUSTON 270th JUDICIAL DISTRICT
ORDER
On July 24, 2015 the Court heard Plaintiff's Application for Writ of Mandamus.
Concluding that Respondent Anna Russell in her capacity as City Secretary for the City of
Houston has a nondiscretionary ministerial duty to count and certify the number of valid
signatures contained in the petition submitted by Plaintiff and to certify and present the same to
the Houston City Council, Plaintiff's Application for Writ of Mandamus is granted.
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:66397896-Page1of1
IT IS THEREFORE ORDERED, that Respondent Anna Russell in her capacity as City
Secretary for the City of Houston shall count and certify to Houston City Council the number of
valid signatures contained in the petition submitted by Plaintiff on or before 30 (thirty) days from
the date the same were filed, namely July 9, 2015.
Signed July 28, 2015.
FILED
Chris Daniel
District Clerk
JtJ, 3 8 2015
Time:
I
By
V7e Presiding
Tab B
Chapter 17 - EQUAL RIGHTS[1]
Footnotes:
--- (1) ---
Editor's note—Ord. No. 2014-530, § 2(Exh. A), adopted May 28, 2014, amended Ch. 17 in its entirety to
read as herein set out. Formerly said chapter pertained to Fair housing and derived from Ord. No. 2006-
412, § 2(Exh. A), adopted April 26, 2006. See the Code Comparative Table for a complete derivation.
Cross reference— Anti-discrimination provisions in city contract, § 15-16 et seq.
ARTICLE I. - IN GENERAL
Sec. 17-1. - Public policy declared.
It is the policy of the city that all of its residents and persons subject to its jurisdiction shall not be
subject to discrimination based on an individual's sex, race, color, ethnicity, national origin, age, familial
status, marital status, military status, religion, disability, sexual orientation, genetic information, gender
identity or pregnancy.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-2. - Definitions.
In this chapter:
Age means, for purposes of sections that address non-discrimination, 40 or more years of age.
City employment and employment opportunities shall include, but are not limited to, decisions
that adversely affect an employee's pay, status, position or assignment, including opportunities for
overtime pay and advancement, and includes decisions regarding recruitment, job application
procedures, referrals for employment, selection and hiring, appointment, compensation, promotions,
demotions, transfers, layoffs, recalls, training, educational opportunities, and all forms of discipline,
including indefinite suspensions/terminations.
Contractor means any person, including subcontractors, who through a contract or other
arrangement, has received, is to receive, or is receiving public funds for work, goods, or services
delivered or rendered to the city.
Disability means a mental or physical impairment that substantially limits at least one major life
activity, a record of the impairment, or being regarded as having the impairment. This term does not
include the current, illegal use of or addiction to a controlled substance as defined under state and
federal law.
Discriminate means to intentionally distinguish, differentiate, separate, or segregate to the
advantage or disadvantage of any person on the basis of a protected characteristic, except as
required by federal or state law or court order.
Employee means an individual employed by an employer.
Employer means a person who has 50 or more employees for each working day in each of 20
or more calendar weeks in the current or preceding calendar year, and the person's agent. The term
does not include a person's contractor or vendor with respect to the conduct of the contractor or
Page 1
vendor toward the employees of said contractor or vendor; the United States, or a corporation wholly
owned by the government of the United States; a bona fide private membership club which is exempt
from taxation under Section 501(c) of the Internal Revenue Code of 1954; the state, a state agency,
or political subdivision; or a religious organization.
Familial status means the status of a person resulting from being domiciled with an individual
younger than 18 years of age in regard to whom the person:
(1) Is the parent or legal custodian; or
(2) Has the written permission of the parent or legal custodian for domicile with the individual;
or
(3) Is in the process of obtaining legal custody.
Gender identity means an individual's innate identification, appearance, expression or behavior
as either male or female, although the same may not correspond to the individual's body or gender
as assigned at birth.
Genetic information means information about an individual's genetic tests, the genetic tests
about an individual's family members, and the manifestation of disease or disorder in family
members of an individual. The term does not include the age, sex, race, color, ethnicity, national
origin, religion, or disability of any individuals.
Inspector general means the person in charge of the Office of the Inspector General created by
Executive Order No. 1-39 or his or her designee.
Military status means a person who is serving or has served in the uniformed service, and who,
if discharged, was discharged or released under conditions other than dishonorable. Uniformed
services is defined as set forth in 20 C.F.R. 1002.5(o).
Person means an individual, corporation, partnership, association, labor organization, legal
representative, mutual company, joint-stock company, trust, unincorporated organization, trustee or
receiver.
Place of public accommodation means every business with a physical location in the city,
whether wholesale or retail, which is open to the general public and offers for compensation any
product, service, or facility. The term includes, but is not limited to, all hotels, motels, restaurants,
bars, lounges, nightclubs or cabarets where food or beverages are sold or offered for sale, theaters,
washaterias, bowling alleys, skating rinks, golf courses, and other places of public amusement, and
all public conveyances, as well as the stations or terminals thereof. For purposes of article IV of this
chapter, the leasing office, visitor parking area and model units of a multi-family housing facility shall
not be considered a place of public accommodation.
Protected characteristic means an individual's sex, race, color, ethnicity, national origin, age,
familial status, marital status, military status, religion, disability, sexual orientation, genetic
information, gender identity or pregnancy.
Religion means all aspects of religious observance and practice, as well as belief.
Religious organization means:
(1) A religious corporation, association, social service or society;
(2) A school, college, university, or other educational institution or institution of learning, if the
institution is, in whole or in substantial part, controlled, managed, owned, or supported by a
religion, religious corporation, association or society; or the curriculum of the institution is
directed toward the propagation of a religion; or
(3) A nonprofit institution or organization operated, supervised, or controlled by a religious
corporation, association, social service or society.
Page 2
Retaliation, in connection with employment, means conduct or decisions that a reasonable
employee would view as materially adverse and whose purpose or effect is to discourage employees
from exercising their rights under this article, city policy, or law.
Sex means the biological differences between men and women, and gender.
Sexual orientation means the actual or perceived status of a person with respect to his or her
sexuality.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Secs. 17-3—17-30. - Reserved.
ARTICLE II. - CITY EMPLOYMENT AND CITY SERVICES
Sec. 17-31. - Prohibition against discrimination in city employment.
It is the policy of the city that the city will not discriminate in city employment and employment
opportunities on the basis of any protected characteristic. For purposes of this section, discriminate
includes, but is not limited to, any act or demonstration of preference or antipathy in making decisions
regarding employment that adversely affect an employee's pay, status, position, or assignment, including
opportunities for overtime pay and advancement, and includes decisions regarding recruitment, job
application procedures, referrals for employment, selection and hiring, appointment, compensation,
promotions, demotions, transfer, retention, layoffs, recalls, training, educational opportunities, and all
forms of discipline, including indefinite suspensions/terminations.
This policy applies to city officials and all employees regardless of civil service status, classification,
pay grade, length of employment, or full-time or part-time status.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-32. - Prohibition against discrimination in city services.
It is the policy of the city that the city will not discriminate on the basis of any protected characteristic
in authorizing or making available the use of city facilities or in the delivery of city programs, services or
activities.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-33. - Enforcement.
(a) It is the policy of the city that no employee or official of the city shall engage in any act or practice
prohibited by this article.
(b) An employee or official found in violation of this article shall be subject to disciplinary action up to
and including indefinite suspension/termination or removal from office pursuant to applicable city
ordinances, city charter provisions, executive orders, administrative procedures, laws, and policies.
An employee who believes he or she has been subject to discrimination in violation of this article
shall submit a written complaint to the inspector general not later than 180 days after the alleged
violation occurs.
(c) The provisions of this article shall be enforced pursuant to applicable city ordinances, city charter
provisions, executive orders, administrative procedures, laws, and policies.
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(d) The office of the inspector general is responsible for investigating all facts and circumstances that
reasonably appear to constitute a violation of this article.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-34. - Retaliation prohibited.
No city employee or official shall retaliate against any person who has filed a complaint in good faith
pursuant to this section. If the inspector general determines that retaliation has occurred, the city
employee or official shall be subject to discipline, up to and including indefinite suspension.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Secs. 17-35—17-40. - Reserved.
ARTICLE III. - CONTRACTING
Sec. 17-41. - Prohibition against discrimination in awarding contracts.
It is the policy of the city that the city will not discriminate in the consideration, award, or
administration of any contract entered into between the city and any person (including, but not limited to,
any contractor, vendor, supplier, lessee, or lessor) for the provision of any works, goods, or services of
any type to the city. The language of section 15-17 of this Code shall be included—by inclusion,
attachment or reference—in every non-exempt contract entered into by the city. The language of this
article shall not be interpreted to conflict with provisions of chapter 15 of this Code.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014; Ord. No. 2015-668, § 12, 7-8-2015)
Sec. 17-42. - Prohibition against discrimination in the performance of a contract; penalties; retaliation
prohibited.
(a) It shall be unlawful for any contractor to discriminate against any person on the basis of any
protected characteristic, except as required by federal or state law or court order, in the performance
of any contract entered into with the city. A person employed in connection with a city contract who
has a good faith belief that he or she is the victim of discrimination may file a complaint with the
inspector general on a form prescribed by the inspector general. Any person claiming to be
aggrieved by an unlawful employment action in connection with the performance of a city contract
shall file a verified complaint in writing no later than 180 days after the alleged violation.
(b) If a contractor is found to have violated this section in connection with any city contract, the inspector
general shall refer the matter to the city attorney for appropriate action to serve the best interests of
the city, including the use of remedies provided by the city's contract with the contractor.
(c) No contractor shall retaliate against any person who has filed a complaint in good faith pursuant to
this section. If the inspector general determines that retaliation has occurred, he shall refer the
matter to the city attorney pursuant to subsection (b) of this section.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-43. - Investigation of complaints of discrimination in the performance of a contract; procedures.
Page 4
(a) The office of the inspector general shall investigate the complaint and determine whether a violation
as defined in this article has occurred. In addition to other investigative tools, the inspector general
may take statements and inspect relevant records. If the inspector general is not able to obtain
voluntary cooperation in connection with its investigation, he shall refer the matter to the city attorney
for appropriate action.
(b) If the complaint is found to be deficient, the inspector general shall dismiss the case. All
investigations conducted pursuant to this article shall be conducted in a confidential manner and
records of any such investigations shall be confidential to the extent permitted by law.
(c) Upon completion of the investigation of the complaint, if the inspector general determines that the
complaint alleges a violation of this article, the inspector general shall affirmatively engage in
conciliation of the complaint. If no resolution is achieved, the inspector general shall refer the matter
to the city attorney for appropriate action.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Secs. 17-44—17-50. - Reserved.
ARTICLE IV. - PUBLIC ACCOMMODATIONS
Sec. 17-51. - Prohibition against discrimination in public accommodations.
(a) It shall be unlawful for any place of public accommodation or any employee or agent thereof to
intentionally discriminate against any person on the basis of any protected characteristic, except as
required by federal or state law or court order.
(b) It shall be a defense to prosecution for discrimination on the basis of disability under this article that
the alleged discrimination resulted from a condition or structural feature for which a variance had
been received from the city under applicable ordinance or regulation. It shall also be a defense to
prosecution for discrimination on the basis of accessibility that the place of public accommodation is
in compliance with applicable state or federal law relating to accessibility.
(c) It shall be unlawful for a person to file a complaint in bad faith under this article. For purposes of this
article, bad faith means wholly without foundation in law or fact, or done solely for the purpose of
harassment.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-52. - Investigation of alleged violations; procedures.
(a) Any person claiming to be aggrieved by an unlawful public accommodation practice shall file a
verified complaint in writing with the office of the inspector general not later than 180 days after the
alleged violation occurred. Multiple complaints involving the same incident and alleging the same
discrimination shall be treated as one alleged violation for investigation and penalty. If the complaint
states a claim that is within the jurisdiction of a federal or state agency, the inspector general may
refer the complaint to the appropriate agency for further action and discontinue the investigation of
the complaint.
(b) Except as to complaints that are referred to a federal or state agency, the office of the inspector
general shall investigate the complaint and determine whether a violation as defined in this article
has occurred. In addition to other investigative tools, the inspector general may take statements and
inspect relevant records. If the inspector general is not able to obtain voluntary cooperation in
connection with its investigation, the city attorney, in consultation with the inspector general, may
Page 5
request city council to issue a subpoena or subpoena duces tecum to compel the attendance of a
witness or the production of relevant materials or documents. City council may issue such subpoena
if it determines that there is reasonable cause to believe that this article may have been violated.
(c) If the complaint is found to be deficient or untimely, the inspector general shall dismiss the case. All
investigations conducted pursuant to this article shall be conducted in a confidential manner and
records of any such investigations shall be confidential to the extent permitted by law. The inspector
general shall complete the investigation of the complaint no later than one year after the filing of the
complaint.
(d) Upon completion of the investigation of the complaint, if the inspector general determines that the
complaint alleges a violation of this article, the inspector general shall affirmatively engage in
conciliation of the complaint. If no such resolution is achieved, the inspector general shall refer the
matter to the city attorney for appropriate action in accordance with this article.
(e) No finding, conciliation or adjudication under this article shall be admissible in connection with the
city's licensing, permitting, or regulatory matters.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-53. - Effect of provisions on civil remedies.
This article shall neither add to nor detract from any civil remedies now available to persons
complaining of discrimination under this article.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-54. - Exemptions.
This article shall not apply to:
(1) Any hotel, motel, restaurant, bar, lounge, nightclub, cabaret, theater, bowling alley, skating rink,
golf course, or similar facility operated by a bona fide private club when the accommodations,
advantages, facilities, and services of the entity are restricted to the members of such club and
their guests and not for the purpose of evading this article;
(2) Any bona fide social, fraternal, educational, civic, or religious organization, or to any private
kindergarten, day care center or nursery school, when the profits of such accommodations,
advantages, facilities and services, above reasonable and necessary expenses, are solely for
the benefit of such organization;
(3) Any facility owned or operated by a federal, state, county or other local governmental entity; or
(4) Discounts of any product, service, or facility for any person on the basis of age or military status.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-55. - Criminal penalties for violation.
(a) A person who violates a provision of this article commits a criminal offense, a Class C misdemeanor.
A person is guilty of a separate criminal offense for each day or part of a day during which a violation
is committed, continued, or permitted.
(b) A criminal offense under this article is punishable in municipal court by a fine of not less than
$250.00 nor more than $500.00. In no event shall the aggregate of all fines relating to the same
complaint filed by a complainant exceed $5000.00.
(c) A person prosecuted for a violation of this article shall be entitled to a trial by jury in municipal court.
Page 6
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Secs. 17-56—17-60. - Reserved.
ARTICLE V. - PRIVATE EMPLOYMENT
Sec. 17-61. - Prohibition against discrimination in employment.
(a) It shall be unlawful for any employer to intentionally discriminate in employment and employment
opportunities on the basis of any protected characteristic. For purposes of this section, discriminate
includes but is not limited to, any intentional act or demonstration of preference or antipathy in
making decisions regarding employment that adversely affect an employee's pay, status, position, or
assignment, including opportunities for overtime pay and advancement, and includes decisions
regarding recruitment, job application procedures, referrals for employment, selection and hiring,
appointment, compensation, promotions, demotions, transfer, retention, layoffs, recalls, training,
educational opportunities, and all forms of discipline, including terminations.
(b) It shall be unlawful for any employer to retaliate against any person who has filed a complaint in
good faith pursuant to this article.
(c) An employer may assert any applicable affirmative defenses available under Texas or federal
discrimination laws as a defense to prosecution under this article.
(d) It shall be unlawful for a person to file a complaint in bad faith under this article. For purposes of this
article, bad faith means wholly without foundation in law or fact, or done solely for the purpose of
harassment.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-62. - Investigation of alleged violations; procedures.
(a) Any employee claiming to be aggrieved by an unlawful employment practice shall file a verified
complaint in writing with the office of the inspector general not later than 180 days after the alleged
violation occurred. If the complaint states a claim that is within the jurisdiction of a federal or state
agency, the inspector general shall refer the complaint to the appropriate agency for further action
and discontinue the investigation of the complaint.
(b) Except as to complaints that are referred to a federal or state agency, the office of the inspector
general shall investigate the complaint and determine whether a violation as defined in this article
has occurred. In addition to other investigative tools, the inspector general may take statements and
inspect relevant records. If the inspector general is not able to obtain voluntary cooperation in
connection with its investigation, the city attorney, in consultation with the inspector general, may
request the city council to issue a subpoena or subpoena duces tecum to compel the attendance of a
witness or the production of relevant materials or documents. City council may issue such subpoena
if it determines that there is reasonable cause to believe that this article may have been violated.
(c) If the complaint is found to be deficient or untimely, the inspector general shall dismiss the case. All
investigations conducted pursuant to this article shall be conducted in a confidential manner and
records of any such investigations shall be confidential to the extent permitted by law. The inspector
general shall complete the investigation of the complaint no later than one year after the filing of the
complaint.
(d) Upon completion of the investigation of the complaint, if the inspector general determines that the
complaint alleges a violation of this article, the inspector general shall affirmatively engage in
Page 7
conciliation of the complaint. If no such resolution is achieved, the inspector general shall refer the
matter to the city attorney for appropriate action in accordance with this article.
(e) No finding, conciliation or adjudication under this article shall be admissible in connection with the
city's licensing, permitting, or regulatory matters.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-63. - Effect of provisions on civil remedies.
This article shall neither add to nor detract from any civil remedies now available to persons
complaining of discrimination under this article.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-64. - Criminal penalties for violation.
(a) A person who violates a provision of this article commits a criminal offense, a Class C misdemeanor.
A person is guilty of a separate criminal offense for each day or part of a day during which a violation
is committed, continued, or permitted.
(b) A criminal offense under this article is punishable in municipal court by a fine of not less than
$250.00 nor more than $500.00. In no event shall the aggregate of all fines relating to the same
complaint filed by a complainant exceed $5000.00.
(c) A person prosecuted for a violation of this article shall be entitled to a trial by jury in municipal court.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Secs. 17-65—17-100. - Reserved.
ARTICLE VI. - FAIR HOUSING
DIVISION 1. - GENERAL PROVISIONS
Sec. 17-101. - Prohibition against discrimination in housing.
It is the policy of the City of Houston to promote housing opportunities for all persons. Such policy is
established upon the recognition of the rights of each individual to obtain housing without regard to a
protected characteristic; and further that the denial of such rights through considerations based on a
protected characteristic is detrimental to the health, safety, and welfare of the inhabitants of the city and
constitutes an unjust denial or deprivation of such rights which are within the power and the proper
responsibility of the city to prevent.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-102. - Purpose.
The purposes of this article are:
(1) To provide for fair housing practices in the city;
Page 8
(2) To create a procedure for investigating and settling complaints of discriminatory housing
practices and any residential real estate-related transactions; and
(3) To provide rights and remedies substantially equivalent to those granted under the Federal Fair
Housing Act.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-103. - Office established.
There is hereby established within the housing and community development department the office of
fair housing. The mission of the office of fair housing shall be to monitor and evaluate fair housing
opportunities in the city and to hear fair housing complaints under this article.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-104. - General duties of the office of fair housing.
The duties of the fair housing staff shall be:
(1) To study the nature and extent of discriminatory housing practices in both the private and public
sectors;
(2) To evaluate and assess the city's activities in connection with the development of fair housing
opportunities in the city;
(3) To recommend to the mayor and city council reasonable provisions and programs to further fair
housing opportunities in the city; and
(4) To investigate, process, and hear fair housing complaints under division 5 of this article, and
complaints referred by federal or state agencies that are filed under state or federal housing
laws.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-105. - Fair housing administrator.
(a) There is hereby created the office of fair housing administrator, who shall be in charge of the office of
fair housing. The fair housing administrator, who shall be appointed by the mayor and confirmed by
the city council, shall have the responsibility for implementing and enforcing this article and may
establish such rules and regulations as are determined necessary to perform the duties of that office.
(b) The fair housing administrator shall cooperate with the Secretary of Housing and Urban
Development and the Attorney General of the United States in the enforcement of the federal Fair
Housing Act, and may assist the secretary or attorney general in any way consistent with the policy
of this article. The fair housing administrator is encouraged to cooperate with the Texas Workforce
Commission, Civil Rights Division, in the enforcement of the Texas Fair Housing Act.
(c) The fair housing administrator shall treat a complaint referred by the Secretary of Housing and Urban
Development or the Attorney General of the United States under the federal Fair Housing Act, or by
the Texas Workforce Commission, Civil Rights Division, under the Texas Fair Housing Act, as a
complaint filed under this article. No action will be taken under this article against a person for a
discriminatory housing practice if the referred complaint was filed with the governmental entity later
than one year after an alleged discriminatory housing practice occurred or terminated.
Page 9
(d) The fair housing administrator may order discovery in aid of investigations under this article. Such
discovery may be ordered to the same extent and is subject to the same limitations as would apply if
the discovery were ordered in aid of a civil action in a state district court of Harris County, Texas.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Secs. 17-106—17-110. - Reserved.
DIVISION 2. - DEFINITIONS
Sec. 17-111. - General definitions.
The following words, terms, and phrases, when used in this article, shall have the meanings ascribed
to them in this section, except where the context clearly indicates a different meaning:
Accessible means capable of being approached, entered, and used by a person with a physical
disability
Accessible route means a continuous unobstructed path connecting accessible elements and
spaces in a housing accommodation that can be negotiated by a person with a severe disability
using a wheelchair and that is also safe for and usable by a person with other disabilities.
Aggrieved person means a person who claims to have been injured by a discriminatory housing
practice or believes that a person will be injured by a discriminatory housing practice that is about to
occur.
Building entrance on an accessible route means an accessible entrance to a covered multi-
family dwelling that is connected by an accessible route to public transportation stops, to accessible
parking and passenger loading zones, or to the public streets or sidewalks, if available.
Complainant means a person, including the fair housing administrator, who files a complaint
under section 17-131 of this Code.
Conciliation means the attempted resolution of issues raised by a complaint or by the
investigation of the complaint, through informal negotiations involving the aggrieved person, the
complainant if different from the aggrieved person, the respondent and the fair housing administrator.
Conciliation agreement means a written agreement setting forth the resolution of the issues in
the conciliation.
Covered multi-family dwelling means a building consisting of 4 or more dwelling units if the
building has one or more elevators; and a ground floor dwelling unit in any other building consisting
of four or more dwelling units.
Defense means a defense to criminal prosecution in municipal court as explained in the Texas
Penal Code. Defense also means, where specifically provided, an exemption from a civil action.
Discriminatory housing practice means conduct that is an offense under division 3 of this article.
Dwelling means any building, structure, or portion thereof which is occupied as, or designed or
intended for occupancy as, a residence by one or more families, and any vacant land which is
offered for sale or lease for the construction or location thereon of any such building, structure, or
portion thereof.
Dwelling unit means a single unit of residence for a family.
Fair housing administrator means the fair housing administrator of the fair housing office
designated to enforce and administer this article and includes the fair housing administrator's
designated representative and the inspector general.
Page 10
Federal Fair Housing Act means the Fair Housing Act of 1968, 42 U.S.C. § 3601, et seq., as
amended.
Housing accommodation means:
a. Any building, structure, or part of a building or structure that is occupied, or designed or
intended for occupancy as a residence for one or more families; and
b. Any vacant land that is offered for sale or lease for the construction or location of a
building, structure, or part of a building or structure described by part a of this definition.
Rent means and includes to lease, sublease, let or otherwise grant for consideration the right to
occupy premises not owned by the occupant. Residential real estate-related transaction means:
a. The making or purchasing of loans or the providing of other financial assistance:
[1] For purchasing, constructing, improving, repairing, or maintaining a housing
accommodation; or
[2] Secured by residential real estate; or
b. The selling, brokering, or appraising of residential real property.
Respondent means a person identified in a complaint or charge as having committed a
discriminatory housing practice under this article.
Texas Fair Housing Act means the act set forth in Chapter 301, Texas Property Code.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
DIVISION 3. - DISCRIMINATORY HOUSING PRACTICES
Sec. 17-112. - Discriminatory housing practices.
(a) A person commits an offense if he or she, because of a protected characteristic:
(1) Refuses to negotiate with a person for the sale or rental of a housing accommodation or
otherwise denies or makes unavailable a housing accommodation to a person;
(2) Refuses to sell or rent, or otherwise makes unavailable, a housing accommodation to another
person after the other person makes an offer to buy or rent the accommodation; or
(3) Discriminates against a person in the terms, conditions, or privileges of, or in providing a service
or facility in connection with, the sale or rental of a housing accommodation.
(b) A person commits an offense if he or she, because of a protected characteristic:
(1) Represents to a person that a housing accommodation is not available for inspection, sale, or
rental if the accommodation is available;
(2) Discriminates against a prospective buyer or renter in connection with the showing of a housing
accommodation; or
(3) With respect to a multiple listing service, real estate brokers' organization, or other business
relating to selling or renting housing accommodations:
a. Denies a person access to or membership in the business; or
b. Discriminates against a person in the terms or conditions of access to or membership in
the business.
(c) A person commits an offense if he or she:
Page 11
(1) For profit, induces or attempts to induce another person to sell or rent a housing
accommodation by a representation that a person of a protected characteristic is in proximity to,
is present in, or may enter into the neighborhood in which the housing accommodation is
located;
(2) Makes an oral or written statement indicating a preference or a policy of discrimination based on
a protected characteristic; or
(3) Prints or publicizes or causes to be printed or publicized an advertisement that expresses a
preference or policy of discrimination based on a protected characteristic in the selling or renting
of a housing accommodation.
(d) A person who engages in a residential real estate-related transaction commits an offense if he or
she, because of a protected characteristic, discriminates against a person:
(1) In making a residential real estate-related transaction available; or
(2) In the terms or conditions of a residential real estate-related transaction.
(e) A person commits an offense if he or she:
(1) Discriminates in the sale or rental of a housing accommodation to any buyer or renter because
of a disability of:
a. That buyer or renter;
b. A person residing in or intending to reside in the housing accommodation after it is sold,
rented, or made available; or
c. Any person associated with that buyer or renter; or
(2) Discriminates against any person in the terms, conditions, or privileges of sale or rental of a
housing accommodation, or in the provision of services or facilities in connection with the
housing accommodation, because of a disability of:
a. That person;
b. A person residing in or intending to reside in the housing accommodation after it is sold,
rented, or made available; or
c. Any person associated with that person.
(f) A person commits an offense if he or she:
(1) Refuses to permit, at the expense of a person with a disability, reasonable modifications of
existing premises occupied or to be occupied by the person with a disability, if the modifications
may be necessary to afford the person with a disability full use of the premises; except that, in
the case of a rental, the landlord may, where reasonable to do so, condition permission for
modification on the renter's agreeing to restore the interior of the premises to the condition that
existed before the modification, reasonable wear and tear excepted;
(2) Refuses to make reasonable accommodations in rules, policies, practices, or services when the
accommodations may be necessary to afford a person with a disability equal opportunity to use
and enjoy a housing accommodation;
(3) Fails to design or construct a covered multi-family dwelling for first occupancy after March 13,
1991, in such a manner as to have at least one building entrance on an accessible route, unless
it is impractical to do so because of the terrain or unusual characteristics of the site; or
(4) Fails to design and construct a covered multi-family dwelling, for first occupancy after March 13,
1991, in such a manner that:
a. The public use and common use portions of the dwellings are readily accessible to and
usable by a person with a disability;
Page 12
b. All the doors designed to allow passage into and within all premises within the dwelling are
sufficiently wide to allow passage by a person with a disability in a wheelchair; and
c. All dwellings contain the following features of adaptive design:
[1] An accessible route into and through the dwelling unit;
[2] Light switches, electrical outlets, thermostats, and other environmental controls in
accessible locations;
[3] Reinforcements in the bathroom walls to allow installation of grab bars; and
[4] Kitchens and bathrooms laid out in such a manner that an individual in a wheelchair
can maneuver about the space.
It shall be an affirmative defense to prosecution for discrimination on the basis of disability under
items (3) and (4) of this subsection for failing to design or construct a covered multi-family dwelling if
the construction of the covered multi-family dwelling was in compliance with applicable state or
federal laws relating to disability at the time of construction.
(g) A person commits an offense if he or she coerces, intimidates, threatens, or otherwise interferes with
any person in the exercise or enjoyment of, or on account of that person having exercised or
enjoyed, or on account of that person having aided or encouraged any other person in the exercise
or enjoyment of, any right granted or protected by this article.
(h) A person commits an offense if he or she retaliates against any person for making a complaint or
testifying, assisting, or participating in any manner in a proceeding under this article.
(i) The provisions of this article do not apply to discrimination based on age.
(j) It shall be unlawful for a person to file a complaint in bad faith under this article. For purposes of this
article, bad faith means wholly without foundation in law or fact, or done solely for the purpose of
harassment.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Secs. 17-113—17-120. - Reserved.
DIVISION 4. - EXEMPTIONS
Sec. 17-121. - Certain sales and rentals exempted.
(a) Except as provided in subsection (b) of this section, and in accordance with federal law:
(1) The sale or rental of a single-family house sold or rented by an owner does not constitute an
unlawful action under this article if the owner does not:
a. Own more than 3 single-family houses at any one time; or
b. Own any interest in, nor is there owned or reserved on his or her behalf, under any express
or voluntary agreement, title to or any right to any part of the proceeds from the sale or
rental of more than 3 single family houses at any time; and
(2) The sale or rental of rooms or units in a dwelling containing living quarters occupied or intended
to be occupied by no more than 4 families living independently of each other does not constitute
an unlawful act under this article if the owner maintains and occupies one of the living quarters
as the owner's residence.
Page 13
(b) The exemption in item (1) of subsection (a) of this section applies only when there is one sale or
rental in a 24-month period, if:
(1) The owner was not the most recent resident of the house at the time of or prior to the sale or
rental;
(2) The private, bona fide individual owner has sold or rented the house without the use in any
manner of the sales or rental facilities or the sales or rental services of any real estate broker,
agent, or salesman, or of such facilities or services of any person in the business of selling or
renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person;
and
(3) The private, bona fide individual owner has sold or rented the dwelling without the publication,
posting or mailing, after notice, of any advertisement or written notice in violation of the federal
Fair Housing Act.
Nothing in this section shall prohibit the use of attorneys, escrow agents, abstractors, title
companies, and other professional assistance as necessary to perfect transfer of title.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-122. - Religious organizations and private clubs exemption.
(a) This article does not prohibit a religious organization or a nonprofit institution or organization
operated, supervised, or controlled by or in conjunction with a religious organization from, in
accordance with federal law:
(1) Limiting the sale, rental, or occupancy of dwellings that it owns or operates for other than a
commercial purpose to persons of the same religion; or
(2) Giving preference to persons of the same religion, unless membership in the religion is
restricted because of a protected characteristic.
(b) This article does not prohibit a private club not open to the public that, as an incident to its primary
purpose, provides lodging that it owns or operates for other than a commercial purpose, from limiting
the rental or occupancy of that lodging to its members or from giving preference to its members.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-123. - Housing for the elderly exempted.
The provisions of this article relating to familial status, age and pregnancy do not apply to housing for
older persons.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-124. - Appraisal exemption.
This article does not prohibit a person engaged in the business of furnishing appraisals of residential
real property from taking into consideration factors other than a protected characteristic.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-125. - Effect on other law.
Page 14
This article does not affect a requirement of nondiscrimination in any other ordinance or state or
federal law.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-126. - Effect on deed restrictions and other laws.
This article shall not be interpreted to interfere with the enforcement of a lawful deed restriction or a
limitation on the number of persons who may occupy a dwelling unit that is otherwise permissible under
federal or state law.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Secs. 17-127—17-130. - Reserved.
DIVISION 5. - ADMINISTRATIVE/COURT ENFORCEMENT
Sec. 17-131. - Complaints.
(a) Complaints may be filed not later than one year after an alleged discriminatory housing practice has
occurred or terminated. Any aggrieved person may file a complaint. The complaint may be filed with
the assistance of an authorized representative of an aggrieved person, including any organization
acting on behalf of an aggrieved person. The fair housing administrator may also file a complaint if
he has reasonable cause to believe that a person has committed a discriminatory housing practice. If
the complaint, other than a complaint referred pursuant to subsection (b) of this section, states a
claim that is within the jurisdiction of a federal or state agency, the fair housing administrator may
refer the complaint to the appropriate agency for further action and discontinue the investigation of
the complaint.
(b) The fair housing administrator shall treat complaints referred by the Secretary of Housing and Urban
Development or the Attorney General of the United States under the federal Fair Housing Act or by
the Texas Workforce Commission, Civil Rights Division, under the Texas Fair Housing Act as though
filed under subsection (a) above.
(c) A complaint must be made:
(1) In writing; and
(2) Under oath or affirmation by an aggrieved person, or by an individual on behalf of an aggrieved
person, stating: "I declare under penalty of perjury that the foregoing is true and correct."
(d) Each complaint must contain substantially the following information:
(1) The name and address of the respondent.
(2) Name, address and signature of the complainant.
(3) The name and address of the aggrieved person if different from the complainant.
(4) Date of the occurrence or termination of the discriminatory housing practice and the date of
filing of the complaint.
(5) A description and address of the dwelling that is involved in a discriminatory housing practice.
(6) A concise statement of the facts constituting the alleged discriminatory housing practice,
including the basis for the discrimination (specifying the relevant protected characteristic).
Page 15
(e) A complaint may be reasonably and fairly amended at any time.
(f) Except as to complaints that are referred to a federal or state agency, within ten days after the filing
of a complaint, the fair housing administrator shall:
(1) Give the complainant, and the aggrieved person if different from the complainant, written notice
that the complaint has been received; and
(2) Advise the complainant, and aggrieved person if different from the complainant, of the time
limits applicable to the complaint and of any rights and choice of forums under this article.
th
(g) Not later than the 10 day after the filing of the complaint, the fair housing administrator shall serve
on each respondent:
(1) A written notice that a complaint alleging the commission of a discriminatory housing practice
has been filed against the respondent; identifying the alleged discriminatory housing practice;
advising the respondent of the procedural rights and obligations of a respondent under this
article, including the right to file a written, signed and verified informal answer to the complaint
within ten days after service of notice of the complaint; and setting out the rights and remedies
of the aggrieved person under the article; and
(2) A copy of the original complaint.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-132. - Answer.
th
(a) Not later than the 10 day after receipt of the notice and copy of the complaint under subsection (g)
of section 17-131 of this Code, a respondent shall file an answer to the complaint.
(b) An answer to a complaint:
(1) Must be made in writing;
(2) May include the assertion of any defense that might be available to a defendant in a court of
law;
(3) Must be signed and affirmed by the respondent; and
(4) Must include an affirmation that states: "I declare under penalty of perjury that the foregoing is
true and correct."
(c) An answer may be reasonably and fairly amended at any time before the fair housing administrator
refers the matter to the city attorney for prosecution. The fair housing administrator shall furnish a
copy of each amended complaint or answer, respectively, to each respondent or complainant, and to
any aggrieved person who is not the complainant, as promptly as is practicable.
(d) The filing of an answer does not inhibit the investigation of a complaint.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-133. - Investigation.
(a) If the federal government or the state of Texas has referred a complaint to the fair housing office or
has deferred jurisdiction over the subject matter of a complaint to the fair housing office, the fair
housing office shall initiate an investigation of the allegations set forth in the complaint.
(b) The fair housing office shall investigate all complaints within 30 days after a complaint is filed, and,
except as provided by subsection (c) of this section, shall complete an investigation within 100 days
after the date of filing of the complaint, and shall dispose of all administrative proceedings related to
the investigation not later than one year after the date the complaint is filed.
Page 16
(c) The fair housing administrator shall seek the voluntary cooperation of any person to:
(1) Obtain access to premises, records, documents, individuals, and any other possible source of
information;
(2) Examine, record, and copy necessary materials; and
(3) Take and record testimony or statements of any person reasonably necessary for the
furtherance of the investigation.
(d) If the fair housing office is unable to complete an investigation within the time periods prescribed by
subsection (b) of this section the fair housing administrator shall notify the complainant and the
aggrieved person, if different from the complainant, and the respondent, in writing, of the reasons for
the delay.
(e) The fair housing administrator shall assist in the investigation of complaints submitted to the fair
housing office, and in preparing reports required under this article.
(f) Upon completion of an investigation where the fair housing administrator has made a determination
that a discriminatory housing practice has in fact occurred, if the fair housing administrator is unable
to secure from the respondent an acceptable conciliation agreement, then the fair housing
administrator shall refer matters within the jurisdiction of HUD to HUD and refer all other matters to
the city attorney for appropriate action in accordance with this article.
(g) The fair housing administrator and the city attorney are authorized and encouraged to cooperate with
the Secretary of Housing and Urban Development pursuant to the provisions of Title VIII of the
Federal Fair Housing Act and may render such service to the secretary as they shall deem
appropriate to further the policies of this article and may accept reimbursement from the Secretary
for services rendered to assist in carrying out the provisions of the above cited federal law.
(h) An investigation shall remain open until a reasonable cause determination is made under section 17-
137 of this Code, a conciliation agreement is executed and approved under section 17-135 of this
Code, or the complaint is dismissed under section 17-139 of this Code. Unless impracticable to do
so, the fair housing administrator shall complete the investigation within the 100-day period
prescribed in subsection (b) of this section.
(i) This section does not limit the authority of the fair housing administrator to conduct such other
investigations or to use such other lawful enforcement procedures as the fair housing administrator
considers necessary to enforce this article.
(j) The fair housing administrator shall prepare a final investigative report showing:
(1) The names of and dates of contact with witnesses;
(2) A summary, including dates, of correspondence and other contacts with the aggrieved person
and the respondent;
(3) A summary description of other pertinent records;
(4) A summary of witness statements; and
(5) Answers to interrogatories, if any.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-134. - Additional or substitute respondent.
(a) The fair housing administrator may join a person not named in the complaint as an additional or
substitute respondent if, in the course of the investigation, the fair housing administrator determines
that the person should be accused of a discriminatory housing practice. Within ten days after the fair
housing administrator's determination, any additional or substitute respondent shall be served with
notice and a copy of the complaint, as provided in subsection (g) of section 17-131 of this Code.
Page 17
(b) In addition to the information required in the notice under subsection (c) of section 17-91 of this Code
the fair housing administrator shall include in the notice to a respondent joined under this section an
explanation of the basis for the determination that the person is properly joined as a respondent. The
added respondent shall be given an opportunity to file an answer to the complaint within ten days
after receipt of the notice, as provided in section 17-132 of this Code.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-135. - Conciliation.
(a) The fair housing administrator shall, during the period beginning with the filing of a complaint and
ending with issuance of charge under section 17-138 of this Code, the dismissal of complaint under
section 17-139 of this Code, or the dismissal of a criminal action in municipal court, after consulting
with the city attorney, where feasible, engage in conciliation with respect to the complaint. In
conciliating a complaint, the administrator shall try to achieve a just resolution and obtain assurances
that the respondent will satisfactorily remedy any violation of the aggrieved person's rights and take
action to assure the elimination of both present and future discriminatory housing practices.
(b) The fair housing administrator shall conduct a conciliation negotiation of any complaint received by
the fair housing office, provided that all final conciliation agreements shall be submitted to the city
attorney for review and approval.
(c) If a conciliation agreement is executed under this section, a party to the agreement may not be
prosecuted in municipal court, nor may the fair housing administrator issue a charge against a party,
for the discriminatory housing practice specified in the conciliation agreement under this section
unless the fair housing administrator determines that the agreement has been violated and notifies
the city attorney in writing of the violation.
(d) A conciliation agreement must be in writing in the form approved by the city attorney and must be
signed and verified by the respondent, the complainant, and the aggrieved person if different from
the complainant, subject to approval of the fair housing administrator who shall indicate approval by
signing the agreement. A conciliation agreement is deemed executed upon its signing and
verification by all parties to the agreement.
(e) A conciliation agreement executed under this section must contain:
(1) Identification of each discriminatory housing practice and each corresponding respondent that
gives rise to the conciliation agreement under this section that the parties agree to make subject
to the limitation on prosecution in subsection (c) of this section;
(2) An identification of the housing accommodation subject to the conciliation agreement;
(3) A statement that each party entering into the conciliation agreement agrees not to violate this
article or the conciliation agreement; and
(4) Any other term or condition agreed to by the parties.
(f) The conciliation agreement may provide for binding arbitration or other method of dispute resolution.
Dispute resolution resulting from a conciliation agreement may authorize appropriate relief, including
monetary relief (in the form of damages, including humiliation and embarrassment, and attorney
fees) and equitable relief (such as access to the housing accommodation at issue, or to a
comparable housing accommodation, and provision of services at facilities in connection with a
housing accommodation).
(g) Nothing said or done in the course of conciliation may be made public or used as evidence in a
subsequent proceeding under this article without the written consent of the persons concerned.
(h) After completion of the investigation, the fair housing administrator shall make available to the
aggrieved person and the respondent, at any time, information derived from the investigation as well
as the final investigative report.
Page 18
(i) A conciliation agreement may be made public, unless the aggrieved person and the respondent
request non-disclosure and the fair housing administrator determines that disclosure is not required
to further the purposes of this article. Notwithstanding a determination that disclosure of a
conciliation agreement is not required, the fair housing administrator may publish tabulated
descriptions of the results of all conciliation efforts.
(j) If the aggrieved person brings a civil action under a local, state, or federal law seeking relief for the
alleged discriminatory housing practice and the trial in the action begins, the fair housing
administrator shall terminate efforts to conciliate the complaint unless the court specifically requests
assistance from the fair housing administrator. The fair housing administrator may also terminate
efforts to conciliate the complaint if:
(1) The respondent fails or refuses to confer with the fair housing administrator;
(2) The aggrieved person or the respondent fails to make a good faith effort to resolve any dispute;
or
(3) The fair housing administrator finds, for any reason, that voluntary agreement is not likely to
result.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-136. - Violation of conciliation agreement.
(a) A person commits an offense if, after the person executes a conciliation agreement under section
17-135 of this Code, he or she violates any term or condition contained in the agreement.
(b) It is no defense to criminal prosecution in municipal court under this section that, with respect to a
discriminatory housing practice that gave rise to the conciliation agreement under section 17-135 of
this Code:
(1) The respondent did not commit the discriminatory housing practice; or
(2) The fair housing administrator did not have probable cause to believe the discriminatory
housing practice was committed.
(c) If the fair housing administrator determines that a conciliation agreement has been violated, the fair
housing administrator shall give written notice to all parties subject to the agreement.
(d) When the fair housing administrator has reasonable cause to believe that a respondent has
breached a conciliation agreement, the fair housing administrator shall refer the matter to the city
attorney for appropriate action in accordance with this article.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-137. - Reasonable cause determination.
(a) A panel consisting of a fair housing investigator representative, the city attorney, and the fair housing
administrator, shall determine based on all the facts whether reasonable cause exists to believe that
a discriminatory housing practice has occurred or is about to occur.
th
(b) The panel shall make the determination under subsection (a) of this section not later than the 100
day after the date a complaint is filed unless:
(1) It is impracticable to make the determination; or
(2) The city attorney has approved a conciliation agreement relating to the complaint.
Page 19
(c) If it is impracticable to make the determination within the time period provided by subsection (b) of
this section, the panel shall notify the complainant, and the aggrieved person if different from the
complainant, and the respondent, in writing, of the reasons for the delay.
(d) If the city attorney determines that no reasonable cause exists to believe that a discriminatory
housing practice has occurred, the city attorney shall issue to the fair housing administrator a short
and plain written statement of the facts upon which the city attorney based the no reasonable cause
determination. If the city attorney issues such a statement, the panel shall automatically determine
that no reasonable cause exists to believe that a discriminatory practice has occurred or is about to
occur.
(e) If the panel determines that reasonable cause exists to believe that a discriminatory housing practice
has occurred or is about to occur, the city attorney shall proceed with appropriate enforcement
action.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-138. - Charge.
(a) A charge issued under section 17-137 of this Code:
(1) Must consist of a short and plain statement of the facts upon which the fair housing
administrator and the city attorney have found reasonable cause to believe that a discriminatory
housing practice has occurred or is about to occur;
(2) Must be based on the final investigative report; and
(3) Need not be limited to the facts or grounds alleged in the complaint.
(b) Not later than the 20th day after the fair housing administrator issues a charge, the fair housing staff
shall send a copy of the charge to:
(1) Each respondent; and
(2) Each aggrieved person on whose behalf the complaint was filed.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-139. - Dismissal.
(a) A complaint shall be dismissed by the fair housing administrator during the investigation and prior to
referral to the city attorney when the fair housing administrator determines that:
(1) The complaint was not timely filed;
(2) The location of the alleged discriminatory housing practice is not within the city's jurisdiction;
(3) The alleged discriminatory housing practice is not a violation of this article;
(4) The complainant, or the aggrieved person if different from the complainant, refuses to cooperate
with the fair housing administrator in the investigation of the complaint or enforcement of the
executed conciliation agreement; or
(5) The complainant, or the aggrieved person if different from the complainant, cannot be located
after the fair housing administrator has performed a reasonable search.
(b) A criminal action may be dismissed by a municipal judge upon motion of the city attorney, if after the
city attorney files the action charging a respondent with a discriminatory housing practice, a
conciliation agreement is executed under section 17-135 of this Code before the trial begins in
municipal court.
Page 20
(c) The fair housing administrator shall notify the complainant, the aggrieved person if different from the
complainant, and the respondent of the dismissal of the complaint, including a written statement of
facts, and may make public disclosure of the dismissal unless the respondent requests that no public
disclosure be made.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Sec. 17-140. - Criminal penalties for violation.
(a) A person who violates a provision of this article commits a criminal offense, a Class C misdemeanor.
A person is guilty of a separate criminal offense for each day or part of a day during which a violation
is committed, continued, or permitted.
(b) A criminal offense under this article is punishable in municipal court by a fine of not less than
$250.00 nor more than $500.00. In no event shall the aggregate of all fines relating to the same
complaint filed by a complainant exceed $5000.00.
(c) A person prosecuted for a violation of this article shall be entitled to a trial by jury in municipal court.
(Ord. No. 2014-530, § 2(Exh A), 5-28-2014)
Page 21
Tab C
FILED
15-0636
8/24/2015 8:29:39 AM
tex-6612826
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
No. ____________
_________________________________
IN THE COURT SUPREME COURT OF TEXAS
_________________________________
IN RE: DAVID B. WILSON,
Realtor
_________________________________
Original Proceeding Related to Annise D. Parker, M ayor, Anna Russell, City
Secretary, and City of Houston v. David B. W ilson, 01-15-00687-CV, First Court
of Appeals, Trial Court Number 2015-39706, 270th District Court of Harris
County, Texas
____________________________________
ORIGINAL EMERGENCY
PETITION FOR WRIT OF MANDAMUS
________________________________________
Oral Argument Waived
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
Page -1-
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.
Relator Respondents
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
Page -2-
WAIVER OF ORAL ARGUMENT
Realtor respectfully requests emergency relief and believes that oral arguement
would delay justice even more than it has already been delayed in this matter. Realtor
waives oral argument.
Page -3-
TABLE OF CONTENTS
Cover Page 1
Identity of Parties and Counsel 2
Waiver Oral Argument 3
This Table of Contents 4
Index of Authorities 6
Statement of the Case 8
Issues Presented 10
Statement of Facts 12
Statement of Jurisdiction 14
Summary of Argument 15
Argument & Authorities 17
Prayer 22
Verification of David Wilson 23
Certificate of Compliance & TRAP 52.3(J) Certification 24
Certificate of Service 25
Appendix 1 Order Granting Mandamus (270th Judicial District Harris County)
Appendix 2 Order from First Court of Appeals Questioning Jurisdiction but
Denying Motion to Dismiss.
Page -4-
Appendix 3 Notice of Appeal filed by the Real Parties in Interest
Appendix 4 David B. Wilson’s Emergency Motion to Dismiss and Alternatively
to Refer Enforcement of Mandamus to Trial Court
Appendix 5 Response to David B. Wilson’s Emergency Moiton to Dismiss filed in
in Annise D. Parker, Mayor, Anna Russell, City Secretary, and City of Houston v.
David B. Wilson, 01-15-00687-CV, First Court of Appeals with copies of Record
From David B. Wilson vs. Annise D. Parker, Mayer, Anna Russell City Secretary and
City of Houston, District Court Number 2015-39706, 270th District Court of Harris
County, Texas
Page -5-
INDEX OF AUTHORITIES
Cases:
Bally Total Fitness Corp. v. Jackson, 53 S.W .3d 352 (Tex. 2001).
CMH Homes v. Perez, 340 S.W.3d 444, 447–48 (Tex. 2011)
In re Cullar, 320 S.W. 3d 560, 564 (Tex.App.-Dallas 2010)
In Re F.N. Williams, Sr, and Jared Woodfill, No. 15-00581 (Tex. August 19, 2015)
In re Woodfill, __ S.W.3d __, __, 2015 WL 4498229 (Tex. 2015) (per curiam)
In Re Roof, 130 S.W. 3d 414, 416 (Tex.App.-Houston [14th Dist.] 2004).
M.D. Anderson v. City of Seven Points, 806 S.W . 2d 791 (Tex. 1991).
O'Conner v. First Court of Appeals, 837 S.W. 2d 94, 97 (Tex. 1992).
Paulsen v. Yarrell, 455 S.W.3d 192, 195 (Tex. App.—Houston [1st Dist.] 2014,
no pet.)
Rusk State Hosp. v. Black, 392 S.W.3d 88, 92 (Tex. 2012));
Turner v. Pruitt, 161 Tex. 532, 342 S.W.2d 422, 423 (1961).
Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 682 (1956);
Page -6-
Statutes & Rules
Texas Constitution Article 5, Section 6
Tex. Civ. Pract. & Rem. Code Section 6.002
Tex. Civ. Prac. & Rem. Code Ann. § 51.014
Texas Civil Practice & Remedies Code Chapter 65
Texas Election Code § 277.001
Texas Election Code Section 273.061
Texas Government Code § 9.004(a)
Texas Government Code Section 22.221(a)
Tex. R. App. P. 52.
Tex. R. App. P. 29.1(b)
Page -7-
STATEMENT OF THE CASE
This is yet another attempt by the City of Houston and its officials to not
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 In Re F.N.
Williams, Sr, and Jared Woodfill, No. 15-00581 (Tex. August 19, 2015); In re
Woodfill, __ S.W.3d __, __, 2015 WL 4498229 (Tex. 2015) (per curiam) . The 270th
District Court of Harris County issued an interlocutory Mandamus order directing
Anna Russell, City Secretary to perform her ministerial duty to count and certify to
Houston City Counsil the number of valid signatures contained in the petition
submitted by Realtor. Appendix “1” Just prior to the deadline to comply, the Relator
filed a notice of interlocutory appeal and claimed the 270th District Court Order was
automatically stayed. Appendix “3” Realtor moved to dismiss the appeal in the First
Court of Appeals for lack of jurisdiction. Appendix “4” The First Court of Appeals
recognized it likely lacked jurisdiction, however, gave Respondent ten days to
respond to its concern that it lacked jurisdiction. Appendix “2” Since the additional
ten days can result in the inability to put the proposed Charter Amendment on the
ballot timely, Realtor seeks Mandamus from this Court to either 1) order the First
Court of Appeals to dismiss, immediately for want of jurisdiction, or alternatively this
Page -8-
Court issue a writ of mandamus directing the Anna Russell, City Secretary to
immediately perform her ministerial duty to count and certify to Houston City
Counsil the number of valid signatures contained in the petitions submitted by
Realtor.
Page -9-
ISSUES PRESENTED
Does a Texas Court of Appeal have jurisdiction to review
by interlocutory appeal an interlocutory order granting a
petition for writ of mandamus directing a city official to
comply with her ministerial duties?
Did Anna Russell, City Secretary violate her ministerial
duties to count and certify petitions for a proposed
amendment to Houston's City Charter?
Page -10-
STATEMENT OF FACTS
Course of Proceedings in the Lower Courts
Realtor, Wilson obtained over 22,000 petitions to propose an amendment to
Houston's City Charter. He requested that his proposed amendment be submitted to
the voters in the next election. Houston City Secretary, Anna Russell, (“Russell”) had
the duty to count and certify the petitions. To date she has not performed this
ministerial duty.
On Wilson’s petition for writ of mandamus, the 270th District Court of Harris
County granted Wilson mandamus relief to compel Russell to count and certify the
petitions. (Appendix 1). Even after the order, Russell refused to perform her
ministerial duties. Instead, Russell filed a notice of Interlocutory Appeal1 calculated
to cause Wilson and the 22,000 plus petition signers to miss an August 31, 2015
deadline to submit the proposed amendment to the voters. In re Woodfill, __ S.W.3d
__, __, 2015 WL 4498229 (Tex. 2015) (per curiam)(recognizing August 31, 2015
deadline). The notice of appeal falsely stated it was an appeal of a temporary
injunction, and urged that enforcement or the trial court's order was automatically
1
. The notice of appeal falsely stated it was an appeal of a temporary injunction, and urged
that enforcement or the trial court’s order was automatically stayed pursuant to Tex. Civ. Pract. &
Rem. Code Section 6.002, and Tex. R. App. P. 29.1(b). This appears to have been calculated to take
away precious time.
Page -11-
stayed pursuant to Tex. Civ. Pract. & Rem. Code Section 6.002, and Tex. R. App. P.
29.1(b). Appendix “3” This action appears to have been calculated to use up precious
time to get beyond the August 31, 2015 deadline.
The appeal was assigned to the First Court of Appeals. Wilson moved to
dismiss the appeal. (Appendix “4”). On August 19, 2015, the Court of Appeals
denied the motion, but indicated its concern that it lacked jurisdiction. (Appendix
“2”). It gave the Real Parties in Interest ten days to respond to its concern.
Unfortunately August 29, 2015 (a Saturday), will likely be too late. This petition for
emergency mandamus followed.
Statement of Facts
During the months of April, May June, and July 2015 Wilson sponsored and
conducted a petition drive to amend, modify, or supplement Article II, Section 22 of
Houston's City Charter. Pursuant to Texas Election Code § 277.001, and Texas
Government Code § 9.004(a), Wilson collected approximately 22,000 petitions to
define the term "gender identity." The Petition sought to define gender identity as:
Except as required by State or Federal law, the City of
Houston shall only define gender identify 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 identify.
Further, the City of Houston shall require entities doing
business with the city to abide by the same definition of
Page -12-
gender identification."
On July 9, 2015, Wilson filed the petitions with the Anna Russell, the Houston
City Secretary. He requested that the petition be adopted by Houston City Council as
a Charter Amendment, or alternatively, submitted to the voters for a vote. Anna
Russell refused to count or certify Wilson's petitions. On July 10, 2015, Wilson filed
his Original Petition for Writ of Mandamus with the 270th District Court of Harris
County, Texas. On July 31, 2015, the district court conducted a hearing on Wilson's
Petition for Writ of Mandamus. (Appendix “4”) On July 28, 2015, the granted
Wilson's Petition for Writ of Mandamus with respect to Defendant, Anna Russell and
ordered her to count the petitions submitted by Wilson and to certify and present the
same to the Houston City Council by August 8, 2015. (Appendix “1") On August 7,
2015, the day before the Anna Russell was to have completed her count and
certification, she filed her notice of interlocutory appeal with the Court of Appeals.
(Appendix “3").
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STATEMENT OF JURISDICTION
This Court has jurisdiction to issue writs of mandamus under Texas
Constitution Article 5, Section 6; Texas Government Code Section 22.221(a); Texas
Election Code Section 273.061; and Tex. R. App. P. 52. No genuine issues of
material fact exist to divest this Court of mandamus jurisdiction. Relators are mindful
of Tex. R. App. P. 52.3(c), which ordinarily requires Relators to file this Petition and
Motion first with the Houston Court of Appeals, given that Court and this Court both
have original jurisdiction to review this matter. However, although a number of
matters were submitted to the Court of Appeals, 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.
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SUMMARY OF ARGUMENT
No interlocutory appeal lies from an interlocutory order granting a petition for
writ of mandamus issued by a Texas District Court. CMH Homes v. Perez, 340
S.W.3d 444, 447–48 (Tex. 2011)(interlocutory appeals may only be taken where
statutorily authorized). Since the First Court of Appeals lacks jurisdiction of the Real
Parties in Interest’s appeal, and its continued exercise of jurisdiction will likely result
in irreparable harm to legislative power reserved to the people of Houston, In re Jared
Woodfill,__ S.W.3d __, __, 2015 WL 4498229 (Tex. 2015) (per curiam), this Court
should ordered that First Court of Appeals dismiss the appeal styled Annise D.
Parker, Mayor, Anna Russell, City Secretary, and City of Houston v. David B.
Wilson, 01-15-00687-CV, First Court of Appeals, Trial Court Number 2015-39706,
270th District Court of Harris County, Texas, for lack of jurisdiction.
Texas Government Code § 9.004(a) empowers Houston citizens to vote to
amend their City Charter after a petition signed by a number of qualified voters of
the municipality equal to at least five percent of the number of qualified voters of the
municipality or 20,000 whichever number is smaller. The City of Houston Charter
delegates to the city Secretary, Anna Russell, the ministerial function to certify to the
Houston City Council the number of valid signatures on said petition, and present
such petition and certificate to the Houston City Council. She refuse to do so, and
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continues to refuse to do so. For the reasons set forth this Court’s recent decisions
in In Re F.N. Williams, Sr, and Jared Woodfill, No. 15-00581 (Tex. August 19,
2015); In re Woodfill, __ S.W.3d __, __, 2015 WL 4498229 (Tex. 2015) (per
curiam) mandamus is appropriate to compel Anna Russell to perform her ministerial
duties.
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ARGUMENT & AUTHORITIES
Argument & Authorities Under Issue One
Does the Court of Appeals have appellate jurisdiction of an interlocutory order
of mandamus issued by a trial court? The answer is no. The order of the trial court
was not an temporary injunction. It was the granting of a writ of mandamus. As
stated by the Court of Appeals:
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 by appeal.
A writ of mandamus will issue to compel a public official to perform a
ministerial act. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 682 (1956); Turner
v. Pruitt, 161 Tex. 532, 342 S.W.2d 422, 423 (1961). 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
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injunctions, but makes no allowance for appeals of mandamus orders. Tex. Civ. Pract.
& Rem. Code Ann. § 51.014 (4) (West 2015). The courts strictly construe statutes
that allow interlocutory appeals. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352
(Tex. 2001).
The First Court of Appeals should have dismissed, and its delay (even if ever
so slight) will result in irreparable harm to Wilson and the citizens of Houston. The
result will be that the legislative powers of the citizens of Houston not be honored.
In re Jared Woodfill,__ S.W.3d __, __, 2015 WL 4498229 (Tex. 2015) (per curiam).
Wilson requests this Court to direct the court of appeals to dismiss the appeal styled
Annise D. Parker, Mayor, Anna Russell, City Secretary, and City of Houston v. David
B. Wilson, 01-15-00687-CV, First Court of Appeals, Trial Court Number
2015-39706, 270th District Court of Harris County, Texas, for want of jurisdiction,
and certify that no further appeals are available.
Argument & Authorities Under Issue Two
A writ of mandamus will issue to compel a public official to perform a
ministerial act. M.D. Anderson v. City of Seven Points, 806 S.W. 2d 791, 793 (Tex.
1991). An act is ministerial when the law clearly spells out the duty to be performed
by the official with sufficient certainty that nothing is left to the exercise of
discretion. Id. Generally, entitlement to mandamus relief is subject to establishing
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three requisites: a legal duty to perform a non-discretionary act, a demand for
performance, and a refusal. In re Cullar, 320 S.W. 3d 560, 564 (Tex.App.-Dallas
2010) citing O'Conner v. First Court of Appeals, 837 S.W. 2d 94, 97 (Tex. 1992). A
writ of mandamus is appropriate to compel a public official to perform a ministerial
act. In Re Roof, 130 S.W. 3d 414, 416 (Tex.App.-Houston [14th Dist.] 2004).
The Texas Government Code authorizes qualified voters of a municipality to
propose amendments to the city's charter. Texas Government Code § 9.004(a)
Specifically § 9.004(a) provides in relevant part:
.... The governing body shall submit a proposed charter
amendment to the voters for their approval at an election if
a petition signed by a number of qualified voters of the
municipality equal to at least five percent of the number of
qualified voters of the municipality or 20,000, whichever
number is smaller, supports the submission.
Because Texas Government Code 9.004 does not designate a particular person
to count and certify the number of petitions, we look to other sources of law to make
the determination. Houston's City Charter, the Texas Election Code, and the Texas
Supreme Court placed the duty and responsibility on the City Secretary. The Houston
City Secretary admits to performing the function. It is undisputed that Wilson
submitted over 22,000 petitions to Anna Russell, Houston’s city secretary.
This Court has recently addressed a number of refusals by the City of Houston
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and its officers to recognize citizen initiatives. The Texas Supreme Court, on July 24,
2015 conditionally issued a writ of mandamus in In Re Woodfill over a referendum
to repeal Houston's Equal Rights Ordinance. See In re Jared Woodfill,__ S.W.3d __,
__, 2015 WL 4498229 (Tex. 2015) (per curiam). More recently, In re F.N. Williams,
Sr., No. 15-0581 (Tex. August 19 2015), the Court granted a mandamus concerning
Houston officials’ ministerial duties. In Woodfill, this Court wrote"This dispute
concerns the duties of the City Secretary and the City Council of Houston when a
referendum petition is filed." After examining the Houston City Charter, this Court
determined the responsibilities for counting petitions lies with the Houston City
Secretary:
The filing of a "signed and verified" petition in the
prescribed form and manner triggers the City Secretary's
duties. The Charter commits the following responsibilities
to the City Secretary:
On or before the thirtieth day after the date of filing of the
petition the City Secretary shall certify to the City Council
(a) the greatest total vote cast for Mayor at any city general
election held within three years next preceding the date of
the filing of such petition, and
(b) the number of valid signatures on said petition, and
shall present such petition and certificate to the Council.
Citing Houston City Charter Art. VII-b, § 2(b).
On or before the 30th day after the date of filing of the petition the City
Secretary shall certify to the City Council the number of valid signatures on said
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petition, and shall present such petition and certificate to the Council. The Houston
City Secretary, Anna Russell, has refused to perform this simple, ministerial act. For
similar reasons set forth in Woodfill and Williams this court should direct Anna
Russell, City Secretary, to certify to the City Council the number of valid signatures
on said petition, and shall present such petition and certificate to the Houston City
Council.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, Real Party In Interest prays that
the Court direct the court of appeals to immediately dismiss the appeal in No.
01-15-00687-CV, or alternative to direct Anna Russell, City Secretary to certify to
the City Council the number of valid signatures on the petitions submitted by Relator,
and after Russell counts if the requisite number of signatures are present that city
council either adopt the petition or place it on the November 3 ballot, 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 Realtor
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CERTIFICATE OF COMPLAINCE
This is to certify that the forgoing brief contains 3352 words.
___/S/James D. Pierce________
James D. Pierce(15994500)
TRAP 52.3(J) CERTIFICATION
Pursuant to TRAP 52.3(j), the undersigned certifies that he has reviewed the
above Petition for Writ of Mandamus and concluded that every factual statement in
the petition is supported by competent evidence included in the appendix and or the
record.
___/S/James D. Pierce________
James D. Pierce(15994500)
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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 ___ day of August, 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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