COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
CITY OF EL PASO, TEXAS, AND §
JOHN F. COOK, IN HIS OFFICIAL No. 08-16-00075-CV
CAPACITY AS MAYOR OF EL PASO, §
Appeal from the
Appellants, §
County Court at Law No. 3
v. §
of El Paso County, Texas
TOM BROWN MINISTRIES, WORD OF §
LIFE CHURCH OF EL PASO, TOM (TC# 2011-DCV-02792)
BROWN, EL PASOANS FOR §
TRADITIONAL FAMILY VALUES,
AND BEN MENDOZA,
Appellees.
OPINION
This is an interlocutory appeal from an order denying Appellants’ plea to the jurisdiction.
This case originally began when then-Mayor John F. Cook sued Appellees, in his individual
capacity, seeking to enjoin them from circulating recall petitions against him, claiming that their
conduct violated the Texas Election Code. In response, Appellees sued the City of El Paso and
Cook, in his official capacity as Mayor, claiming that by seeking to “enforce” the Election Code
against them in an unconstitutional manner, the City had violated their constitutional right to
engage in core political speech in violation of 42 U.S.C. § 1983. Appellees sought damages,
injunctive relief prohibiting the City from interfering with Appellees’ right to circulate recall
petitions, and a declaratory judgment that certain provisions of the Election Code were
unconstitutional. In its plea to the jurisdiction, the City alleged the trial court lacked subject
matter jurisdiction in part because Appellees lacked standing. Because we agree that Appellees
lack standing, we reverse the trial court’s order denying the plea to the jurisdiction and dismiss all
of Appellees’ claims against the City and Cook in his official capacity.
BACKGROUND
This case has a long-standing and somewhat infamous background, which we set forth in
detail in our opinion in Cook v. Tom Brown Ministries, 385 S.W.3d 592 (Tex.App. – El Paso 2012,
pet. denied). In that case, we explained that Appellee Tom Brown is the President, Chairman of
the Board, and Pastor of a non-profit corporation, the Word of Life Church of El Paso (WOL
Church). Id. at 594. Until August 2011, Brown also served as the chairman of the El Pasoans for
Traditional Family Values (EPTFV), a specific-purpose political committee organized under the
Texas Election Code. Id. EPTFV was created for the express purpose of supporting the passage
of a proposed “traditional family values” city ordinance, which provided that the City of El Paso
“endorses traditional family values by making health benefits available only to city employees and
their legal spouse and dependent children.” Id. The ordinance was approved by voters at a
referendum election held in November 2010, and would have, effective August 2011, taken away
benefits that city employees in domestic partnerships had previously received. Id. at 594-95.
But, on June 14, 2011, the El Paso City Council amended the ordinance, effectively
restoring domestic partnership benefits. Id. at 595. Cook, as the City’s then-Mayor, cast the
tie-breaking vote. Id. at 595. Then-City Council Representatives Susie Byrd and Steve Ortega
2
also voted in favor of the amendment. Id. One month later, three citizens (Ben Mendoza,
Elizabeth Branham, and Salvador Gomez) filed notices to recall Cook, Byrd, and Ortega. Id.
Around this same time, Brown issued a social media statement on the website of Tom
Brown Ministries (TBM) that he had decided to support the recall efforts and encouraged the
public to call the WOL Church to sign the recall petition.1 Id. In one of his newsletters on the
TBM website, Brown included an “Open Letter to City Council,” explaining that he had decided to
join in the recall efforts because he believed the City Council had “disrespected the will of the
people” in amending the family value ordinance, and he encouraged readers to sign and circulate a
recall petition against Cook, Byrd, and Ortega. Brown thereafter utilized WOL Church properties
and resources to facilitate the recall efforts, including expressing his support of the recall on his
website, posting a link on his online newsletters allowing readers to download copies of the
petition, and allowing the church’s facilities to be used to sign petitions. Id. at 595.
It is not clear from the record how much coordination there was between the WOL Church
and EPTVF and other incorporated churches in supporting the recall efforts.2 However, Brown
did make a statement in his newsletter that he, along with EPTVF, had decided to join in the recall
of Mayor Cook, but that Brown did not intend to “spearhead” the efforts and that EPTFV had
recruited two other El Paso citizens to organize the recall efforts for Byrd and Ortega. In a
1
Tom Brown Ministries appears to be a trade name that Brown uses in relation to his church activities. In at least one
TBM newsletter, Brown included a “disclaimer” stating that the TBM website was owned by him and not the church,
and that Brown in his “official capacity as pastor of Word of Life Church neither encourages [n]or discourages the
recall of the Mayor and Representatives.”
2
The decision to become involved in the recall efforts was memorialized in the minutes of the WOL Church Board
meeting on June 27, 2011. The minutes indicate that Brown met with a group of local pastors, some of whom
expressed their support. At least one other incorporated El Paso church, Jesus Chapel, and its pastor either
participated in or expressed an interest in participating in the recall efforts. See Hoyt v. City of El Paso, Tex., 878
F.Supp.2d 721, 724 (W.D. Tex. 2012).
3
subsequent statement on a website entitled “www.recallcook.com,” the WOL Church and other
local churches, including Jesus Chapel, were listed as locations where registered voters could sign
the recall petitions. The statement indicated, however, that the petitions would be located “Off
Church Property.”
Cook’s Lawsuit
On September 12, 2011, Cook sued Brown, TBM, the WOL Church, EPTFV, as well as
Mendoza, Gomez, and Branham (the three citizens who filed the notices of recall), claiming they
were wrongfully circulating the recall petitions against him, Byrd, and Ortega in violation of
Section 253.094 of the Texas Election Code, which prohibits corporations from making “a
political contribution in connection with a recall election, including the circulation and submission
of a petition to call an election.”3 Cook requested injunctive relief to prohibit Appellees from
circulating the recall petitions in violation of the Election Code, from engaging in efforts to
advertise and promote the recall election on websites affiliated with the church, and from
submitting any petitions to the City Clerk that were signed in violation of the Election Code.
Cook also sought the withdrawal of all illegally-procured petitions that had been previously
submitted to the City Clerk.4 Although Cook recognized that Byrd and Ortega were not named
plaintiffs, he requested that Appellees be enjoined from circulating recall petitions against them as
well, and that any illegally-procured petitions with respect to all three be withdrawn and not
utilized to determine whether to schedule the recall election. The lawsuit made clear that Cook’s
3
Section 253.094 provides in part that: “A corporation or labor organization may not make a political contribution in
connection with a recall election, including the circulation and submission of a petition to call an election” and that a
violation of this prohibition is a third-degree felony. TEX. ELEC. CODE ANN. § 253.094 (West Supp. 2016).
4
In his original petition, Cook sued the El Paso City Clerk in her official capacity, seeking an injunction against her
from accepting and certifying the petitions that the other defendants were allegedly circulating in violation of the
Election Code.
4
intent was not to seek criminal sanctions, but to “ensure that any recall election is called only after
proper and strict compliance with Texas law and the ordinances of the City of El Paso.” Cook
also requested a declaratory judgment that any signatures gathered at, or at the behest of, the WOL
Church and other churches were invalid and not eligible to be utilized by the City to support the
recall election. Cook also sought monetary relief in the form of damages and attorney’s fees.
Appellees answered the lawsuit and filed a counterclaim against the City of El Paso and
Cook, in his “official capacity as Mayor of El Paso,” contending that they were acting under color
of law to violate Appellees’ constitutional right to circulate the recall petitions, which they
described as being core political speech.5 In response, Cook amended his petition and clarified
that he was suing only in his individual capacity and denied that he was acting in his official
capacity as the City’s mayor or under color of law in bringing his lawsuit.
The Temporary Injunction
The trial court initially entered a temporary restraining order in favor of Cook, enjoining
Appellees from circulating the petitions and otherwise supporting the recall efforts, but later
dissolved the TRO and ordered the City Clerk to accept all of the disputed recall petitions. Cook,
385 S.W.3d at 597. The City Clerk thereafter certified that the requisite number of qualified
voters had signed petitions in support of the recall election. Id. In response, Cook amended his
petition and requested the trial court order the City Clerk to withdraw the certification of the
5
Appellees initially stated that their counterclaim was also against Cook in his individual capacity, but later clarified
they were suing Cook only in his official capacity as the City’s mayor. Neither the City nor Mayor Cook in his
official capacity was a party to the lawsuit at the time they were sued, and it does not appear that Appellees served the
City and Cook with citation. However, the City and Cook, in his official capacity, entered appearances in the case by
filing various pleadings, and therefore appear to have waived any procedural deficiencies in this regard. See TEX. R.
CIV. P. 120 (noting that an appearance “shall have the same force and effect as if the citation had been duly issued and
served as provided by law”).
5
petitions involving him, Byrd, and Ortega, arguing that all of the petitions were wrongfully
certified in violation of the Election Code.
The trial court held a five-day temporary injunction hearing. Id. At the hearing, the El
Paso District Attorney testified that his office was looking into possible criminal violations of the
Election Code with regard to Appellees’ conduct. Id. As a result, multiple witnesses, including
Brown, invoked the Fifth Amendment during their testimony. Id. at 597, 602. In particular,
among other things, Brown refused to answer questions concerning the relationship between the
WOL Church, TBM, and EPTFV, and questions concerning whether the WOL Church was using
its property or resources to circulate the recall petitions. Id. at 602.
The trial court denied Cook’s request for a temporary injunction, finding that Cook’s
request would have thwarted the “will of the people” to hold a recall election. Id. at 607. On
January 30, 2012, the City voted in favor of a recall election resolution, and thereafter scheduled a
recall election for April 14, 2012. Id. at 598-99. Cook filed a timely interlocutory appeal to this
Court. Id. at 594.
The Cook Opinion
In our opinion issued on February 17, 2012, two months before the scheduled recall
election, we reversed the trial court’s decision denying Cook’s request for an injunction. Id. at
608. We concluded the evidence clearly established a violation of the Election Code, and that
Cook was being harmed or was in danger of being harmed by the violations. Id. In particular,
we concluded that the WOL Church as a corporation had violated Section 253.094(b) of the
Election Code, which prohibits a corporation from making a “political contribution in connection
with a recall election, including the circulation and submission of petitions to call an election[.]”
6
Id. at 603. Among other things, we concluded that the WOL Church had made an improper
political contribution when it “through the use of its website, promoted the circulation of recall
petitions, created a portal whereby volunteers could register through WOL Church to circulate
petitions, provided the facility and personnel to assist in the signing and circulation of the recall
petitions, and notified the public that recall petitions were available for signing at WOL Church.”6
Id.
We therefore concluded that Cook had the right to seek appropriate injunctive relief as
allowed by Section 273.081 of the Election Code.7 Id. at 607. We ordered the City Clerk “to
decertify and return the recall petitions[,]” and held that “[h]aving instructed the City Clerk to
decertify the petitions, no election thereon may be called or held.” Id. at 608. In both our
judgment and mandate, we stated that we were ordering the “City Clerk to decertify and return the
recall petitions.” Notably, our opinion, judgment, and mandate all referred to the “petitions” in
the plural and did not specify that the City Clerk was to decertify only the petitions for Cook’s
recall. Similarly, our opinion stated that “no election thereon may be called or held,” and we did
not limit this directive to only Cook’s recall election. Id. at 608. Appellees did not seek a
rehearing of our decision.
Decertification and Cancellation of the Recall Election
6
We also concluded that EPTFV had violated the Election Code in expending funds to support the recall effort. Id. at
606. We noted that Section 253.031(b) prohibits a political committee from knowingly accepting political
contributions totaling more than $500 or making or authorizing political expenditures totaling more than $500 when a
campaign treasurer appointment for the committee is not in effect. TEX. ELEC. CODE ANN. § 253.031 (West 2010).
Although we recognized that a treasurer had been named and appointed for EPTFV, we concluded that EPTFV had
made expenditures for a different purpose (to support the recall efforts) than that which was initially stated when the
EPTFV was first established (to promote the traditional-family-values ordinance in 2010). Id. at 606-07. We
concluded that in effect no treasurer had been appointed for any specific-purpose committee with regard to the recall
efforts. Id.
7
Section 273.081 of the Election Code provides that: “A person who is being harmed or is in danger of being harmed
by a violation or threatened violation of this code is entitled to appropriate injunctive relief to prevent the violation
from continuing or occurring.” TEX. ELEC. CODE ANN. § 273.081 (West 2010).
7
Thereafter, on February 20, 2012, the City Clerk filed three separate certificates, in which
she stated that she was decertifying the recall petitions with respect to Cook, Byrd, and Ortega, as
ordered by this Court’s February 17 opinion. Thereafter, the City Council passed a resolution
stating that the City’s prior resolution calling for the April recall election was being rescinded.
The resolution referenced the City Clerk’s decertification of the recall petitions involving Cook,
Byrd, and Ortega, and the order of this Court stating that “no recall election may be called or
held[.]” The resolution was signed on February 28, 2012, by Cook, in his capacity as Mayor, the
City Clerk, and the City Attorney.
Proceedings in the Supreme Court
Appellees sought review of our decision with the Texas Supreme Court, filing a Petition
for Review, a Petition for Mandamus, and a motion seeking emergency relief to stay our decision,
asking the Supreme Court to immediately order the City Clerk to re-certify the signatures on the
recall petitions so that the April recall election could go forward. The Supreme Court denied the
request to stay and asked for full briefing from the parties. In their briefs, Appellees restated their
constitutional argument, asserting that they had a constitutional right to engage in petition
circulation as core political speech and that our decision deprived them of this right. Appellees
did not raise any arguments that the City should have decertified only the Cook petitions or that the
City went beyond the scope of our mandate in decertifying the Byrd and Ortega petitions and in
cancelling the recall election for Byrd and Ortega as well as for Cook. The Supreme Court denied
Appellees’ petition for writ of mandamus and petition for review without explanation on
December 14, 2012, eight months after the April 2012 recall election date had passed.
Cook’s Remaining Claim for Damages
8
Appellees subsequently filed a motion for summary judgment seeking dismissal of Cook’s
lawsuit, arguing, among other things, that Cook’s claim for injunctive relief was moot in light of
our decision decertifying the recall petitions and cancelling the recall election. In response, Cook
amended his petition, acknowledging that his claim for injunctive relief was moot due to the
cancellation of the election and because he, Byrd, and Ortega were now out of office and barred by
term limits from again holding office. Cook stated, however, that he was still seeking damages
and fees for Appellees’ violations of the Election Code. Cook relied on Section 253.131 of the
Election Code, which permits a candidate to seek damages from a party that has engaged in illegal
campaign finance activities, pointing out that the term “candidate” includes an officeholder such
as himself.8 Cook opposed Appellees’ motion for summary judgment on this same basis.
Cook filed his own motion for partial summary judgment, seeking a judgment that
Appellees were liable to him in his individual capacity for their violations of the Election Code
provisions, in light of our opinion in Cook. Appellees opposed the motion, arguing that two cases
issued by the Fifth Circuit Court of Appeals had found the relevant portions of the Election Code
unconstitutional and had determined that incorporated churches had a constitutional right to
engage in recall efforts. Appellees argued that this Court’s prior opinion was wrongfully decided
and that consequently Cook had not suffered any damages due to any unlawful conduct on their
part.
In April 2016, the trial court granted Cook’s motion for partial summary judgment, finding
the WOL Church, TBM, Tom Brown, and Salvador Gomez jointly and severally liable to Cook in
8
Section 253.131 provides in part that: “A person who knowingly makes or accepts a campaign contribution or
makes a campaign expenditure in violation of this chapter is liable for damages as provided by this section[,]” and that
if “the contribution or expenditure is in opposition to a candidate, the candidate is entitled to recover damages under
this section.” TEX. ELEC. CODE ANN. § 253.131 (West 2010).
9
his individual capacity for violations of the Election Code. Although the trial court never
determined the amount of damages, the parties later settled Cook’s claims.
Appellees’ Remaining Counterclaim against the City
In the meantime, the parties also debated the viability of Appellees’ counterclaim against
the City and Mayor Cook in his official capacity. Appellees contended that circulation of the
recall petitions was core political speech and that the City, though Mayor Cook, had acted under
color of law to improperly enforce the Election Code against them in an unconstitutional manner
and that the City was otherwise unconstitutionally restricting them from exercising their right to
speak in violation of 42 U.S.C. § 1983.9 Municipalities can be sued directly under Section 1983
for monetary, declaratory, or injunctive relief when the municipality’s official actions or policies
were responsible for a deprivation of rights protected by the Constitution. Monell v. Dept. of
Social Servs. of City of New York, 436 U.S. 658, 690-92, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611
(1978). In their counterclaim, Appellees sought all three forms of relief: (1) a declaratory
judgment that the provisions of the Election Code upon which Cook relied in his lawsuit were
“unconstitutional on their face and as applied to incorporated churches”; (2) an injunction to
prevent both Cook and the City from prohibiting them from circulating their recall petitions; and
9
Section 1983 does not create substantive rights, and instead provides a remedy for deprivations of existing federal
rights. Wilson v. Garcia, 471 U.S. 261, 278, 105 S.Ct. 1938, 1948, 85 L.Ed.2d 254 (1985); see also City of Oklahoma
City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432, 85 L.Ed.2d 791 (1985). Appellees claimed that the actions of
the City deprived them of their rights to free speech, free exercise of religion, and petition for redress of grievances
under the First Amendment, and to equal protection under the Fourteenth Amendment to the United States
Constitution. The parties recognize that when a Section 1983 claim is brought against a government official in his
official capacity, this is “simply ‘another way of pleading an action against [the] entity of which the officer is an
agent.’” Hoyt v. City of El Paso, Tex., 878 F.Supp.2d 721, 727 (W.D. Tex. 2012) (citing Kentucky v. Graham, 473
U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)).
10
(3) unspecified actual and nominal damages, together with the costs and reasonable attorney’s
fees, they incurred in responding to Cook’s lawsuit.10
After this Court issued its opinion in the Cook case, and after the City cancelled the April
2012 recall election, Appellees amended their counterclaim to clarify that they were still seeking a
declaratory judgment and damages for the City’s allegedly wrongful past conduct, but were now
seeking only prospective injunctive relief against the City, contending they wished to engage in
recall efforts with respect to future elected officials, but were “fearful” of doing so because they
could face criminal sanctions or the City could unlawfully enforce the Election Code against them.
In particular, Appellees claimed, among other things, that the City had ratified Cook’s actions in
bringing his lawsuit and that the City subsequently acted under color of law to suppress their
constitutional rights when it voted to decertify the recall petitions and cancel the April 2012 recall
election.
The City’s Plea to the Jurisdiction
The City then filed a combined plea to the jurisdiction and motion for summary judgment,
contending the trial court lacked subject matter jurisdiction to hear Appellees’ counterclaim.
Among other things, the City contended that Appellees lacked standing because the Appellees had
not suffered an injury as the result of any municipal action. The City argued that neither the City
nor Cook in his official capacity as Mayor had committed any acts that caused Appellees’ alleged
10
In addition to their Section 1983 claim for alleged violations of the United States Constitution, Appellees also
alleged violations of the Texas Constitution. The parties do not address these allegations in their briefing. We note,
however, that there is no private right of action for damages arising from alleged violations of the Texas Constitution.
See City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995). And, while a plaintiff whose state
constitutional rights have been violated may sue for equitable relief, the plaintiff must still establish that a justiciable
controversy exists between the parties; otherwise, the court’s judgment will constitute “no more than an advisory
opinion.” Vriesendorp v. M.D. Anderson Cancer Ctr., No. 14-97-00354-CV, 1998 WL 386320, at *3 (Tex.App. –
Houston [14th Dist.] July 9, 1998, pet. denied); see City of Elsa v. M.A.L., 226 S.W.3d 390, 391 (Tex. 2007).
11
constitutional injuries and that Appellees’ alleged injuries, if any, stemmed only from Cook’s
conduct in bringing the lawsuit in his individual capacity.11 The City argued that it did not ratify
any actions taken by Cook in his individual capacity, and pointed out that the City actually took a
contrary position to Cook during the proceedings, when, contrary to Cook’s request, the City Clerk
had accepted the recall petitions and scheduled the recall election. The City also pointed out that
it had taken a contrary position when the case was pending on appeal in this Court, when it
opposed Cook’s request to decertify the petitions and to stop the scheduled election, arguing that
Cook’s claims regarding the validity of the recall petitions had been rendered moot due to the
certification of the petitions. See Cook, 385 S.W.3d at 608 (recognizing that the City Clerk
argued on appeal that the issues raised by Cook in his lawsuit were moot and that the election
should not be cancelled). The City further pointed out that this Court had expressly directed the
City Clerk to decertify the petitions and not to hold the scheduled recall election. The City argued
that, in light of this Court’s decision, it had no choice but to decertify the petitions and cancel the
election.
In addition, the City argued that this Court correctly decided that the recall petitions had
been illegally circulated in violation of the Code, and that we also correctly determined that the
Code provisions in question were constitutional.12 The City also argued that, regardless of the
11
The City pointed out that this Court had expressly recognized that Cook brought his lawsuit in his individual
capacity. See Cook, 385 S.W.3d at 594. In addition, the City attached an excerpt from Cook’s testimony from the
temporary injunction hearing, in which he testified he was acting in his own individual capacity in filing suit, and that
he was contractually obligated to pay his own attorney’s fees, indicating that the City was not supporting his lawsuit.
12
The City further argued that Appellees who were not corporate entities or officials of the WOL Church (i.e.,
Branham, Mendoza, Gomez, and Tom Brown Ministries) had no standing to request a declaratory judgment
invalidating the Election Code or to request any injunctive relief, because the Election Code limits only the activities
of corporations, not individuals. Branham and Gomez were eventually nonsuited (and they in turn dismissed their
claims against the City), leaving Mendoza and TBM Ministries as the only individual non-corporate “counterclaim
plaintiffs” remaining in the case on appeal.
12
constitutionality of the Election Code provisions, Appellees had no standing to challenge the
constitutionality of the Code provisions or request a preliminary injunction against the City,
because neither the City nor its mayor had any authority to enforce the Election Code against them.
The City pointed out that pursuant to the City’s charter, the Mayor has limited powers that do not
authorize him to initiate litigation, enjoin elections, or otherwise enforce the Election Code in his
official capacity. The City further noted that it was up to the Texas Ethics Commission to enforce
the Election Code in a civil proceeding, and that it would be up to an appropriate law enforcement
agency, such as the Attorney General’s Office, to bring any criminal action for violations of the
Election Code.
In response, Appellees argued that Cook acted in his official capacity as the final
policymaker for the City in bringing the lawsuit against them, that the City had ratified Cook’s
actions in bringing the lawsuit, and that the City acted under color of law when it voted to decertify
the recall petitions and cancel the recall elections, not only for Cook, but also for Byrd and Ortega
as well. Appellees concluded that all of these actions were taken by Cook and the City pursuant
to a city policy, which in turn was the cause of Appellee’s alleged constitutional harm, i.e., their
inability to engage in recall efforts. Following hearing, the trial court denied the City’s plea to the
jurisdiction without stating the basis for its decision.
DISCUSSION
The City argues on appeal that Appellees lacked standing to bring their counterclaim, and
that the trial court therefore lacked subject matter jurisdiction to hear this matter. We agree.
Standard of Review
13
By filing a plea to the jurisdiction, a party challenges the trial court’s authority to decide
the case. Heckman v. Williamson Cty., 369 S.W.3d 137, 149 (Tex. 2012); Bland Indep. Sch. Dist.
v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). Standing is a question of law we review de novo.
Heckman, 369 S.W.3d at 150; Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646
(Tex. 2004); City of El Paso v. Waterblasting Techs., Inc., 491 S.W.3d 890, 895 (Tex.App. – El
Paso 2016, no pet.). The party asserting a claim has the burden to affirmatively demonstrate the
trial court’s jurisdiction. Heckman, 369 S.W.3d at 150; Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In assessing a plea to the jurisdiction, we begin with
the live pleadings. Heckman, 369 S.W.3d at 150. We may also consider evidence submitted to
negate the existence of jurisdiction—and we must consider such evidence when necessary to
resolve the jurisdictional issue. Id.; Bland Indep. Sch. Dist., 34 S.W.3d at 555. We construe the
plaintiff's pleadings liberally, taking all factual assertions as true. Heckman, 369 S.W.3d at 150;
Miranda, 133 S.W.3d at 226; Waterblasting Techs., Inc., 491 S.W.3d at 895. We must grant the
plea to the jurisdiction if the plaintiff’s pleadings affirmatively negate the existence of jurisdiction.
Heckman, 369 S.W.3d at 150; Miranda, 133 S.W.3d at 227; see also Waterblasting Techs., Inc.,
491 S.W.3d at 895 (if the pleadings affirmatively negate jurisdiction, then a plea to the jurisdiction
may be granted without allowing the party an opportunity to amend). And, we must grant the plea
if the defendant presents undisputed evidence that negates the existence of the court’s jurisdiction.
Heckman, 369 S.W.3d at 150; Miranda, 133 S.W.3d at 227.
Standing
Standing is a constitutional prerequisite to suit. Heckman, 369 S.W.3d at 150;
Waterblasting Techs., Inc., 491 S.W.3d at 898; see Sw. Bell Tel. Co. v. Mktg. on Hold Inc., 308
14
S.W.3d 909, 915 (Tex. 2010). A court has no subject-matter jurisdiction over a claim made by a
party who lacks standing to assert it. Heckman, 369 S.W.3d at 150; DaimlerChrysler Corp. v.
Inman, 252 S.W.3d 299, 304 (Tex. 2008); Waterblasting Techs., Inc., 491 S.W.3d at 898-99;
Ranchero Esperanza, Ltd. v. Marathon Oil Co., 488 S.W.3d 354, 358 (Tex.App. – El Paso 2015,
no pet.) (“Standing is a component of subject-matter jurisdiction.”). When a party lacks standing
to assert a claim, the court lacks jurisdiction over that claim and must dismiss it. Heckman, 369
S.W.3d at 150; Waterblasting Techs., Inc., 491 S.W.3d at 899.
Standing to Assert a Section 1983 Claim
Both the United States Supreme Court and the Texas Supreme Court have explained that
when challenging governmental action, the “irreducible constitutional minimum” of standing
consists of three elements:
(1) the plaintiff must have suffered an injury in fact—an invasion of a legally protected or
cognizable interest that is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical;
(2) there must be a causal connection between the injury and the conduct complained
of—the injury must be fairly traceable to the challenged action of the defendant and not
the independent action of a third party not before the court; and
(3) it must be likely, and not merely speculative, that the injury will be redressed by a
favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351
(1992); see Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001); see also Joint Heirs Fellowship
Church v. Akin, 629 Fed.Appx. 627, 631 (5th Cir. 2015) (recognizing that a plaintiff in a Section
1983 suit must plead and prove standing to challenge a government’s actions as being
unconstitutional).
15
In its Plea to the Jurisdiction, the City focuses on the second causal connection element and
contends that Appellees lack standing to bring a Section 1983 claim because Appellees have not
shown, and cannot show, that any action of the City (and Cook in his official capacity as Mayor)
caused them injury.13 Section 1983 provides in relevant part that:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law . . . .
42 U.S.C.A. § 1983. In determining whether a plaintiff has standing to bring a Section 1983
action, the initial inquiry must focus on whether two essential elements of such an action are
present: (1) whether the conduct complained of was committed by a person acting under color of
state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities
secured by the Constitution or laws of the United States. See Parratt v. Taylor, 451 U.S. 527,
535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v.
Williams, 474 U.S. 327, 331–32, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); see also County of El Paso
v. Dorado, 180 S.W.3d 854, 867 (Tex.App. – El Paso 2005, pet. denied).
A municipality may be liable under Section 1983 if the governmental body itself “subjects”
a person to a deprivation of rights or “causes” a person “to be subjected” to such deprivation.
Connick v. Thompson, 563 U.S. 51, 60, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011); see Monell,
436 U.S. at 692, 98 S.Ct. at 2036. Importantly, under Section 1983, local governments are
13
Appellees refer parenthetically one time in their pleadings to 42 U.S.C. § 1985, which outlaws a conspiracy to
violate federal constitutional rights. 42 U.S.C.A. § 1985. The same three-part test for standing for a Section 1983
claim applies to a Section 1985 claim, including that there must be a causal connection between the alleged injury and
the defendant’s alleged conduct. Strunk v. Obama, 880 F. Supp.2d 1, 4 (D.D.C. 2011) (applying the same three-part
test to establish standing in a claim for conspiracy in violation of Section 1985 and concluding that the plaintiff failed
to demonstrate that he had standing to bring a Section 1985 claim because he failed to demonstrate that there was a
“causal connection” between his alleged injury and the defendant’s alleged conduct).
16
responsible for only “their own illegal acts.” Connick, 563 U.S. at 60, 131 S.Ct. at 1359 (quoting
Pembaur v. Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986)).
Claimants who seek to impose liability on local governments under Section 1983 must prove that
“action pursuant to official municipal policy” caused their injury. Connick, 563 U.S. at 60-61,
131 S.Ct. at 1359. Official municipal policy includes (i) the decisions of a government’s
lawmakers, (ii) the acts of its policymaking officials, and (iii) practices so persistent and
widespread as to practically have the force of law. Id.; see Pembaur, 475 U.S at 480-81, 106 S.Ct.
at 1298-99. These are the “action[s] for which the municipality is actually responsible.”
Connick, 563 U.S. at 61 (quoting Pembaur, 475 U.S. at 479-80, 106 S.Ct. at 1298).
Cook was not acting Under Color of Law or
as a Policy Making City Official in Bringing his Lawsuit
Appellees first argue that they had standing because their constitutional injuries arose from
Cook’s lawsuit and that Cook brought his lawsuit against them under color of law, because he did
so in his official capacity as the City’s Mayor or as the City’s final policymaker. We disagree.
The record is clear that Cook did, and could only have, sued Appellees solely in his individual
capacity.
Cook’s pleadings explicitly stated that he was suing only in his individual capacity and
denied that he was acting in his official capacity as the City’s mayor or under color of law in
bringing his lawsuit. In addition, the City attached an excerpt from Cook’s testimony from the
temporary injunction hearing, in which he testified he was acting in his own individual capacity in
filing suit, and that he was contractually obligated to pay his own attorney’s fees, indicating that
the City was not supporting his lawsuit. Further, the evidence showed that the Mayor’s limited
powers under the City’s charter did not authorize Cook to initiate litigation, enjoin elections, or
17
otherwise enforce the Election Code in his official capacity. Moreover, in our Cook opinion, we
expressly recognized that Cook brought his lawsuit in his individual capacity. See Cook, 385
S.W.3d at 594.
Also, Cook brought his lawsuit pursuant to Section 273.081 of the Election Code, which
provides for appropriate injunctive relief to a “person who is being harmed or is in danger of being
harmed by a violation or threatened violation of this code[.]” TEX. ELEC. CODE ANN. § 273.081
(West 2010). Cook also sought damages under Section 253.131, which allows a candidate to
recover as damages twice the value of illegal contributions or expenditures made in opposition to
his candidacy. TEX. ELEC. CODE ANN. § 253.131 (West 2010). The Texas Supreme Court
recognizes that the right to enforce the Texas Election Code through injunctive relief under
Section 273.081 or for damages under Section 253.131 is a private right of action for the
protection of private rights. See Osterberg v. Peca, 12 S.W.3d 31, 48-49 (Tex. 2000)
(recognizing that Section 253.131 allows a private civil action and that the person enforcing the
law is a private party); see also Andrade v. NAACP of Austin, 345 S.W.3d 1, 17 (Tex. 2011)
(noting that suits under Section 273.081 of the Election Code are “essentially private in character
and are for the protection of private rights”). These Code provisions give only individual office
holders or candidates the right to seek damages on their own behalf, and do not give them the right
to seek relief on behalf of the governmental entity which they serve. In other words, the right to
damages and injunctive relief was held by Cook solely in his individual capacity, and he could not
seek relief under the Election Code on behalf of the City. Thus, the harm Cook sought to address
by seeking damages and injunctive relief against Appellees was strictly private in nature, and he
did not, and could not, bring his lawsuit in an attempt to vindicate any right on behalf of the City.
18
Moreover, although Appellees repeatedly refer to Cook’s lawsuit as an action by the City
to enforce the Election Code against them, neither the City nor Mayor Cook in his official capacity
had any authority under the statute to enforce the Election Code. As such, they did not take any
action, nor could they have taken any action, to enjoin Appellees from engaging in their recall
efforts or to otherwise prosecute them for Election Code violations. Hoyt, 878 F.Supp.2d at 735,
738 (noting that City’s mayor had no authority to “prosecute” Election Code violators or to
otherwise enforce the Election Code). Instead, the only possible entities that could have taken
action to directly enforce the Election Code against Appellees would have been the Texas Ethics
Commission or an appropriate law enforcement agency, such as the State Attorney General’s
Office or a local district attorney’s office. Id. (noting that the Election Code gives the authority to
prosecute election law offenses to appropriate law enforcement authorities, such as the Attorney
General’s Office and local district attorney’s offices, and there was nothing in the Code giving a
City’s Mayor any such enforcement authority); see also Joint Heirs, 629 Fed.Appx. at 630
(recognizing that the Texas Ethics Commission is tasked with the responsibility for interpreting
and enforcing the Code). Accordingly, we conclude Cook was not acting under color of law or as
a City policy making official in suing Appellees, but rather that Cook’s requests for damages and
injunctive relief under the Election Code were, as a matter of law, brought solely in Cook’s
individual capacity to enforce a private right of action.
Cook’s Statements Regarding his Perceived Authority to Act
for the City did not Transform the Status of his Lawsuit
Appellees, however, point to comments Cook made in his original petition to the effect that
he was acting “pursuant to his oath of office” in bringing the lawsuit, and contend that Cook made
public statements that he had the duty as the City’s mayor to ensure that the City’s election and
19
voting processes, including recall elections, were conducted in a valid manner. Appellees also
note that during his testimony at the temporary injunction hearing, Cook acknowledged that he
believed he had the right or a special interest by virtue of his elected position as the City’s mayor to
bring the lawsuit on behalf of Byrd and Ortega. Appellees contend that these statements
transformed Cook’s private lawsuit into one brought in his official capacity as Mayor on behalf of
the City. We disagree.
First, many of the statements Cook made in his pleadings regarding his status as Mayor
were made to establish jurisdiction or to state a valid claim for relief under Section 273.081 of the
Election Code. In order to plead a valid claim for relief, it was necessary for Cook to allege that
he was being harmed by Appellees’ alleged violations of the Election Code. This required Cook
to explain the nature of his position, and how and why he believed he was being harmed (i.e.,
threatened with the loss of his position as Mayor) by Appellees’ allegedly wrongful recall efforts.
Further, to the extent Cook made statements in his original petition that possibly could be
interpreted as indicating an intent to bring his lawsuit in his official capacity as Mayor, Cook
clarified in subsequent pleadings that he was bringing the lawsuit solely in his individual capacity.
In addition, to dispel any notion that the City was somehow behind his lawsuit, Cook provided the
trial court with documentation that the City was not funding his lawsuit and that he was
responsible for paying for his own legal fees. Cook further provided the trial court with a copy of
the City Charter, pointing out that it did not give the City’s mayor any authority to bring a lawsuit
of any nature on behalf of the City.
Moreover, any statements Cook made in his pleadings allegedly showing an intent to bring
his lawsuit in his official capacity as the City’s Mayor would be legally incorrect. As discussed
20
above, it was not legally possible for Cook to bring his lawsuit in his official capacity, and the mere
fact that Cook may have misstated his authority in his pleadings does not change that reality.
Cook’s statements could not transform his lawsuit, which was properly brought in his individual
capacity, into one that would have been legally impossible to bring. See Hoyt, 878 F.Supp.2d at
743 (simply stating in a pleading that a party has certain powers to act “does not make it so,” and
instead state law determines the extent of the party’s power or authority).
Appellees also find it significant that Cook stated in his pleadings that he was also seeking
relief for Byrd and Ortega, claiming that they were also being harmed by Appellees’ actions.
Appellees assert that if Cook had truly been acting in his individual capacity, he would not have
had any right to seek relief on their behalf in his lawsuit. Appellees make the logical leap that
Cook therefore must have brought the lawsuit in his official capacity, apparently believing that the
only authority to represent Byrd’s and Ortega’s interests would have derived from Cook’s official
status as the City’s Mayor. Appellees, however, never challenged Cook’s authority to bring a
lawsuit on behalf of Byrd or Ortega, either in the trial court or in this Court in the prior appeal, and
never sought to strike any references to Byrd and Ortega from Cook’s pleadings. As such, Cook’s
statements with respect to Byrd and Ortega remained unchallenged throughout the proceedings in
both courts. More importantly, just like Cook’s statements about his status as Mayor, Cook’s
statements about Byrd and Ortega could not transform his lawsuit, which was properly brought in
his individual capacity, into one that would have been legally impossible to bring in his official
capacity. See Hoyt, 878 F.Supp.2d at 743. Merely pleading erroneously that he had the
authority to represent Byrd and Ortega did not, and could not, give Cook the authority to act in a
manner that was not authorized by the Election Code. Accordingly, we conclude that any
21
statements that Cook made could not serve to transform Cook’s private lawsuit into one brought by
the City.
The City did not Ratify
Cook’s Actions in Suing Appellees
Appellees next contend that even if the City was not technically a party to Cook’s lawsuit,
they have standing because the City ratified Cook’s actions, in part by not objecting when Cook
made the statements to the effect that he was bringing his lawsuit pursuant to his duties and oath of
office as the City’s mayor. In particular, Appellees argue that the City had received Cook’s
pleadings and participated in the hearings in the trial court, and was therefore aware of the
statements Cook made implying that he was bringing the lawsuit in his official capacity as the
City’s mayor. Appellees apparently believe that the City’s failure to object in effect constituted a
ratification of Cook’s authority to bring the lawsuit on the City’s behalf, and thereby made them
liable for Cook’s actions.
Appellees correctly point out that in certain circumstances, if “authorized policymakers
approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the
municipality because their decision is final.” See, e.g., Peterson v. City of Fort Worth, Tex., 588
F.3d 838, 848 (5th Cir. 2009); see also Harris County v. Nagel, 349 S.W.3d 769, 788 (Tex.App. –
Houston [14th Dist.] 2011, pet. denied) (“ratification is ‘the equivalent of authorization, but it
occurs after the fact. . . . ’ ”). Thus, when a “subordinate decides to engage in unconstitutional
conduct and the final policymaker reviews and approves that decision before it becomes final, then
the governmental entity is liable.” Nagel, 349 S.W.3d at 788. Further, in a Section 1983 action
“causation can be inferred from authorization.” Id. Thus, if an official policymaker ratified the
subordinate’s conduct, the fact finder can treat the action as directly authorized or performed by
22
the policymaker and is entitled to infer that this action caused the constitutional violation. Id. at
787-88; see also Hallmark v. City of Fredericksburg, 94 S.W.3d 703, 707 (Tex.App. – San
Antonio 2002, pet. denied) (municipality can be held liable for the illegal or unconstitutional
actions of its final policymakers, if the policymakers knowingly ratify the unconstitutional or
illegal actions of subordinate officers or employees).
There are several problems with Appellees’ ratification theory, however. First, Cook was
not acting as a “subordinate” when he brought his lawsuit, and was instead acting as a private party
who was enforcing his private rights under the Election Code. Thus, the concept of ratification
would not even be applicable to Cook’s actions. Further, Appellees have not identified any
policymaker who was responsible for the so-called ratification of Cook’s actions. Instead,
Appellees cryptically state that the City was present during the lower court proceedings and should
have lodged an objection to these statements, but they do not identify exactly which City
policymaker was present or who they believe should have made the objection.
More importantly, we do not believe that the City had any obligation to object to Cook’s
statements, or that the City’s failure to do so could somehow render the City liable for Cook’s
private actions. Not only did Cook clarify in his amended pleadings that he was solely acting in
his individual capacity, this was the only capacity in which he was entitled to act. We therefore
decline to ascribe any significance to the City’s alleged failure to object to Cook’s actions, and we
do not believe that this failure could support any conclusion that the City had ratified Cook’s
actions in bringing the lawsuit, or that this could cause the City to be liable for any constitutional
harm that Cook’s actions may have caused Appellees. See City of St. Louis v. Praprotnik, 485
U.S. 112, 130, 108 S.Ct. 915, 927-28, 99 L.Ed.2d 107 (1988) (municipality could not be held liable
23
in a Section1983 suit for supervisors’ actions in wrongfully terminating plaintiff, where the
supervisors were not acting in accordance with any municipal policy, and the City’s policymakers
did not expressly approve of the supervisors’ conduct).
In fact, the record indicates that the City actually took positions in the litigation that
opposed the relief requested by Cook. Cook initially named the City Clerk as a defendant in his
lawsuit and sought to restrain her from accepting or certifying the recall petitions that Appellees
had circulated. Further, after the trial court dissolved its initial TRO, the City Clerk certified the
recall petitions and the City Council voted to schedule, and did schedule, the recall election for
April 2012—an action that was in direct opposition to Cook’s private interests. Moreover, when
the first appeal was pending in this Court, the City Clerk opposed Cook’s request that she decertify
the petitions, and instead argued that his claims that the petitions had been gathered improperly
were moot, as the petitions had already been certified and an election already scheduled. See
Cook, 385 S.W.3d at 608.
Accordingly, we reject Appellees’ contention that they have standing because the City
could be held liable for Cook’s actions based on a theory of ratification.
Voting to Cancel the Recall Election did not Constitute
an Official Action or Policy Subjecting the City to Liability
Appellees next argue that they have standing because the City’s actions in decertifying the
recall petitions and in voting to cancel the recall election after we issued our decision in Cook
constituted action that was taken by the City under color of law, or derived from an official policy
decision made by the City. Appellees point out that the City Clerk, in her official capacity, was
responsible for decertifying the recall petitions, and that the election was cancelled by vote of the
City Council, which was thereafter memorialized in a Resolution signed by Mayor Cook.
24
Appellees emphasize that these actions were taken by City officials, including Mayor Cook acting
in his official capacity, who clearly had the final policy making authority for the City at that time.
Appellees note that when a policymaker authorizes the violation of constitutional rights, causation
is straightforward, as proof that the policymaker made the decision is generally sufficient to prove
causation. See Bd. of County Comm’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 405-06,
117 S.Ct. 1382, 1389, 137 L.Ed.2d 626 (1997); see also City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 252, 101 S.Ct. 2748, 2752, 69 L.Ed.2d 616 (1981) (causation was clear where city
council voted to cancel license for concert); Owen v. City of Independence, 445 U.S. 622, 629, 100
S.Ct. 1398, 1404, 63 L.Ed.2d 673 (1980) (causation was clear where city council censured and
discharged an employee without a hearing).
The City does not dispute that the City Council and Mayor were policymakers with final
decision making authority for the City, or that they were technically the actors in decertifying the
recall petitions and in cancelling the recall election. But, the City does not concede that their
actions were taken as the result of any official policy or that the City was the moving force behind
the decision to decertify the petitions and cancel the election. Instead, the City argues that they
could not incur any Section 1983 liability because their actions were taken as a direct result of our
Cook opinion in which we directed the City to take these actions. We agree with the City.
It is “not enough for a § 1983 plaintiff merely to identify conduct properly attributable to
the municipality.” Brown, 520 U.S. at 404, 117 S.Ct. at 1388. Instead, “[t]he plaintiff must also
demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind
the injury alleged. That is, a plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link between the municipal
25
action and the deprivation of federal rights.” Id.; see also Monell, 436 U.S. at 691, 98 S.Ct. at
2036 (Congress did not intend to impose liability on municipalities in Section 1983 actions, absent
a showing that an “official municipal policy of some nature caused a constitutional tort”); Dorado,
180 S.W.3d at 868 (court must consider whether the alleged unconstitutional conduct was
“directly attributable” to the governmental entity “through official action or imprimatur”).
“[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice to
follow a course of action is made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject matter in question.” Pembaur,
475 U.S. at 483–84, 106 S.Ct. at 1300 (“ ‘policy’ generally implies a course of action consciously
chosen from among various alternatives”); Brown, 520 U.S. at 403-04, 117 S.Ct. at 1388
(recognizing that the deliberate conduct requirement was necessary to ensure that a municipality is
“held liable only for those deprivations resulting from the decisions of its duly constituted
legislative body or of those officials whose acts may fairly be said to be those of the
municipality”).
Cook had actually sued the City to prevent it from accepting the recall petitions, and during
the proceedings, the City accepted the recall petitions and scheduled the recall election. Further,
when the case was pending on appeal in this Court, the City opposed Cook’s request to decertify
the petitions and to stop the scheduled recall election, arguing that Cook’s claims regarding the
validity of the recall petitions had been rendered moot due to the certification of the petitions. See
Cook, 385 S.W.3d at 608 (recognizing that the City Clerk argued on appeal that the issues raised
by Cook in his lawsuit were moot and that the election should not be cancelled). It was only when
we issued our opinion, judgment, and mandate in Cook that the City dutifully complied with our
26
facially-valid order and decertified the petitions and cancelled the recall election. A
governmental entity does not violate Section 1983 by complying with a facially-valid court order.
See Rodriques v. Furtado, 950 F.2d 805, 816 (1st Cir. 1991) (hospital’s policy of honoring facially
valid court orders did not make it liable under Section 1983).
The City’s actions in decertifying the recall petitions and in cancelling the recall election
were not taken as a matter of deliberate choice, but were instead taken pursuant to the express
orders this Court gave the City in our opinion, judgment, and mandate in Cook. We specifically
directed the City Clerk to decertify the recall petitions, and in response, the City Clerk duly noted
that she was decertifying the petitions pursuant to our opinion. Cook, 385 S.W.3d at 608.
Similarly, we specifically ordered the City to cancel the recall election, and the City’s Resolution
cancelling the recall election stated that City Council had voted to cancel the election in response
to our opinion. In effect, the City was performing a ministerial action in fulfilling our directive,
one that it had no choice but to take. See Downing v. Brown, 935 S.W.2d 112, 114 (Tex. 1996)
(ministerial actions are duties that the law requires must be performed, and which require
“obedience,” leaving the actor with no discretion or choice); see also Rosencrans v. Altschuler,
161 S.W.3d 517, 521 (Tex.App. – Eastland 2004, no pet.) (explaining the distinction between
ministerial actions that must be taken in the manner prescribed by law or duty, and discretionary
actions involve “personal deliberation, decision, and judgment”). To hold otherwise would mean
that in order to avoid Section 1983 liability, the City was required to deliberately ignore our
explicit order to decertify the petitions and cancel the recall election. We soundly reject any such
rule of law.
27
Appellees contend, however, that the City did have a choice whether to decertify Byrd’s
and Ortega’s recall petitions and cancel their recall elections as well. According to Appellees, the
City incorrectly chose to decertify all three petitions and to cancel the recall election in its entirety.
Appellees argue that even if the City acted rightfully in decertifying Cook’s recall petition and in
cancelling his recall election pursuant to our opinion, it went beyond the scope of our opinion
when it also decertified the recall petitions for Byrd and Ortega. Appellees once again point out
that if Cook had truly been acting in his individual capacity in bringing his lawsuit, he had no
standing or authority to bring a claim on behalf of Ortega and Byrd. They contend that Byrd’s
and Ortega’s interests were therefore not before this Court, and that a proper interpretation of our
opinion would have been that we were only ordering the decertification of Cook’s petition, and not
the decertification of Byrd’s and Ortega’s petitions as well. We disagree, for the simple reason
that our opinion, judgment, and mandate clearly and explicitly ordered the City to decertify all the
recall petitions and to cancel the recall election in its entirety.
In our opinion, judgment, and mandate, we did not distinguish between Cook, Byrd, and
Ortega, and we did in fact direct the City to decertify the “petitions” without limiting our ruling to
only Cook’s petition. Cook, 385 S.W.3d at 608. We further stated that no recall election could
be held based upon those petitions and did not limit our ruling to only Cook’s recall election. Id.
We find it significant that Appellees never sought rehearing or clarification of our opinion, and
never took any action to address the scope of our opinion before the April 2012 election date had
already passed. In fact, although Appellees sought emergency relief with the Supreme Court
shortly after the City decertified all three petitions and canceled the election in its entirety,
Appellees did not complain to the Supreme Court that our decision was overly broad or that the
28
City’s action was outside the scope of our opinion. Instead, Appellees’ arguments in the Supreme
Court were focused solely on whether their constitutional rights had been violated by the City’s
vote to cancel the election, without making any distinction between the cancellation of Cook’s
recall election and Byrd’s and Ortega’s recall election.
Accordingly, we conclude that the City’s decision to decertify all three petitions and to
cancel all three recall elections was not a matter of choice and was not based on any deliberate
decision as a matter of official policy, and was instead taken in compliance with our opinion,
judgment, and mandate. As such, we conclude the City was not a moving force behind any of the
alleged constitutional violations Appellees may have suffered from the decertification of the recall
petitions and the cancellation of the recall election so as to give Appellees standing to subject the
City to liability under Section 1983.
Appellees Lack Standing to Assert a Claim for
Injunctive Relief against the City
We next consider whether Appellees have standing to bring their counterclaim for
injunctive relief against the City. After this Court issued its opinion in the Cook case, and after
the City cancelled the April 2012 recall election, Appellees amended their counterclaim to clarify
that they were now seeking only prospective injunctive relief against the City, contending they
wished to engage in recall efforts with respect to future elected officials, but were “fearful” of
doing because they could “face criminal sanctions” or the City could unlawfully “enforce” the
Election Code against them based on the City’s past conduct.
However, as explained above, the City never took any unconstitutional actions against
Appellees and never applied any unconstitutional policies against them. Rather, it was Cook, in
his individual capacity, who sought redress for private injuries arising from Appellees’ alleged
29
violations of the Election Code in circulating the recall petitions, and it was this Court that directed
the City to decertify the recall petitions and to cancel the recall election. See Cook, 385 S.W.3d at
608-09. The City never engaged in any past unconstitutional conduct toward Appellees, and
there is no basis for any fear the City will unlawfully enforce the Election Code against Appellees
in the future.
However, merely because the City has not yet engaged in any unconstitutional conduct
towards Appellees does not end our inquiry whether Appellees have standing to bring a claim for
prospective relief against the City in the form of a “pre-enforcement review” of the
constitutionality of the Election Code based on their allegation that they wish to engage in
constitutionally protected conduct in the future, which they believe might violate the Election
Code and subject them to either a prosecution or an enforcement action. It is well established that
a plaintiff who wishes to engage in constitutionally protected activity that is proscribed by statute
does not need to first violate the statute and expose himself to arrest or other negative
consequences in order to establish an injury for standing purposes, and may instead bring a request
for a pre-enforcement review of the statute. Hoyt, 878 F.Supp.2d at 731. However, in order
demonstrate standing to bring a pre-enforcement review of a statute, the plaintiff must show not
only an intention to engage in the proscribed conduct, but that there is a “credible threat of
prosecution thereunder.” Id. (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,
297-99, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)); see also Joint Heirs, 629 Fed.Appx. at 629 (in suit
challenging the constitutionality of the Election Code, the plaintiffs were required to establish that
they intended to engage in activities proscribed by the Code, and that there existed a “credible
threat of prosecution” for doing so).
30
Appellees argue that, contrary to our opinion in Cook, they have a constitutional right to
engage in recall efforts, as evidenced by several recent federal court decisions, issued after we
announced our ruling in Cook, in which the Fifth Circuit and the United States District Court for
the Western District of Texas have recognized that an incorporated church has a constitutional
right to engage in recall efforts, and have interpreted the Election Code in a manner that allows
incorporated churches to engage in this conduct. See, e.g., Hoyt, 878 F.Supp.2d at 736
(concluding that an incorporated church has the right under both the Constitution and the Texas
Election Code to make political expenditures to support a recall election, including the right to
circulate recall petitions); Joint Heirs, 629 Fed.Appx. at 628-29 (holding that the Texas Election
Code does not bar incorporated churches from making political expenditures to support recall
efforts, including circulating and submitting recall petitions, using church property to promote the
recall efforts and to circulate the petitions, notifying the public that petitions are available at the
church for signature, raising and expending funds in support of the recall, and sending out
communications with regard to the recall efforts). Appellees assert that they wish to engage in
this constitutionally-permitted conduct, yet they fear that they might be the subject of a criminal
prosecution or an enforcement action if they did so. Appellees, however, have not shown that
they face any credible threat of prosecution or enforcement by the City, nor by law could they face
such a credible threat.
The court in Hoyt faced a similar challenge from another incorporated church in El Paso,
Jesus Chapel, and its pastor, who sued the City and Cook, among others, claiming that they wished
to circulate recall petitions against Cook, Byrd, and Ortega for the same reason that Appellees
did—because they had voted to amend the family values ordinance. Hoyt, 878 F.Supp.2d at 723.
31
The plaintiffs named as defendants Cook, in both his individual capacity and in his official
capacity as the Mayor of El Paso, together with the Attorney General’s Office and the El Paso
District Attorney in his official capacity. Id. at 723, 727. The plaintiffs alleged that they had
refrained from circulating the recall petitions or otherwise becoming involved in the recall efforts
because they feared that the defendants would bring criminal and civil actions against them under
Section 253.094(b) (making it a third-degree felony for a corporation to make a political
contribution in connection with a recall election, including circulating and submitting recall
petitions). Id. at 724. The plaintiffs sought a pre-enforcement preliminary injunction to enjoin
the defendants from “enforcing the Election Code as applied to Plaintiffs’ speech,” as well as a
declaration that the Election Code is facially unconstitutional. Id. at 726.
The plaintiffs argued that they faced a credible threat of prosecution from Mayor Cook,
because he had sued Appellees in order to restrain them from circulating their petitions. The
plaintiffs claimed they feared that Cook might also file a lawsuit against them, and further alleged
that Cook had made a direct threat to enforce the Election Code against them as well. Id. at 738.
The court noted, however, that even if Cook had made any such threats, they would not constitute
credible threats, because Cook had no power to prosecute Election Code violators or to otherwise
enforce the Code against the plaintiffs. Id. at 738. In particular, the court noted that the Election
Code gives the authority to prosecute election law offenses to appropriate law enforcement
authorities, such as the Attorney General’s Office and local district attorney’s offices, and there
was nothing in the Code giving a city’s mayor any such enforcement authority. Id.
Moreover, as the Fifth Circuit has recognized, it is not enough for a plaintiff to allege in a
pre-enforcement review case that he has a generalized fear of being prosecuted or threatened with
32
an enforcement action. Instead, there must be a credible threat that the named defendant could
bring the enforcement action against him. See, e.g., Okpalobi v. Foster, 244 F.3d 405, 419,
426-27 (5th Cir. 2001) (en banc) (concluding injunction granted by the district court was “utterly
meaningless” because the defendants had no powers to redress the injuries alleged, and thus the
plaintiffs had no case or controversy with these defendants that would permit them to maintain the
action in federal court). In order to establish standing and a justiciable controversy between the
parties, there must be “an actual enforcement connection—some enforcement power or act that
can be enjoined—between the defendant official and the challenged statute.” Id. at 419; see also
Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325-26, 33 L.Ed.2d 154 (1972) (holding
credible threat of enforcement must be objectively reasonable).
In the present case, Appellees have failed to establish any enforcement connection between
the City and the challenged statute. The City never took any past actions to enforce the Election
Code against Appellees or to prosecute them for any violations of the Election Code, nor did the
City or Cook in his official capacity have the legal authority to do so. Appellees express fear that
the City will take future action against them based on the City’s past conduct—when in fact no
such past conduct exists, and when in fact any such future conduct is a legal impossibility.
While we recognize that Appellees may be more hesitant than most to engage in recall
activities in light of Cook’s prior lawsuit against them, we again must emphasize that Cook
brought his lawsuit in his individual capacity to protect his own private interests, under Sections
253.131 and 273.081 of the Election Code, and not in his official capacity on behalf of the City.
The possibility that Appellees might once again face such private litigation under these provisions
of the Election Code (for example from future City Council members in their individual capacity)
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“does not constitute a credible threat of enforcement” by an entity authorized to enforce the
Election Code, Joint Heirs, 629 Fed.Appx. at 631, or a credible threat that the named
defendants—the City and Mayor Cook in his official capacity—would or could bring the action
against them. See Okpalobi, 244 F.3d at 419. In short, the possibility of future litigation by
some future office holders in their individual capacity or by those organizations or entities with
enforcement power under the Election Code does not constitute a credible threat of future
enforcement by the City, who is not authorized to prosecute Election Code violations.14
Appellees Lack Standing to Assert a Claim for
Declaratory Judgment Against the City
Likewise, Appellees also lack standing to assert a claim against the City for a declaratory
judgment concerning the constitutionality of the Election Code provisions. It is “well recognized
that declaratory relief is the proper remedy when challenging the constitutionality of a statute.”
Abbott v. G.G.E, 463 S.W.3d 633, 647-48 (Tex.App. – Austin 2015, pet. denied) (quoting
Rylander v. Caldwell, 23 S.W.3d 132, 136 (Tex.App. – Austin 2000, no pet.)). A party seeking
declaratory relief, however, must show that a requested declaration is not merely an advisory
opinion but will resolve a live controversy between the parties. Id. at 647. The general test for
standing in Texas requires that there is “a real controversy between the parties” that “will be
14
Appellees acknowledge they can no longer remove Cook, Byrd, and Ortega from office, since they have all
completed their terms of office and cannot run again due to term limits, but argue their request injunctive relief is not
moot because their situation is “capable of repetition but evading review.” See Waterblasting Techs., Inc., 491
S.W.3d at 906 (recognizing that a claim that has become moot may nevertheless survive under the
“capable-of-repetition-yet-evading-review exception to the mootness doctrine”). Appellees contend that if they seek
to challenge the constitutionality of the Election Code with regard to their right to support a recall election in the
future, their constitutional claim might be rendered moot before it is heard by a court given the tight timeframes in
which elections are scheduled. The mootness doctrine, however, applies only to cases in which a justiciable
controversy existed between the parties at the time the case arose, but the live controversy ceased to exist because of
subsequent events. See Matthews v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016). In the present
case, Appellees lacked standing from the outset to assert their claims against the City and Mayor Cook in his official
capacity. Since there was no justiciable controversy between the parties at the time the case arose, the mootness
doctrine and its exceptions have no application and are irrelevant to our standing analysis.
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actually determined by the judicial declaration sought.” Texas Ass’n of Bus. v. Texas Air Control
Bd., 852 S.W.2d 440, 446 (Tex. 1993) (quoting Bd. of Water Eng’rs v. City of San Antonio, 155
Tex. 111, 114, 283 S.W.2d 722, 724 (1955)). As discussed above, Appellees cannot establish
standing against the City and Cook in his official capacity, since Appellees’ alleged injury, if any,
resulted from Cook filing suit in his individual capacity and from this Court’s decision requiring
the City to decertify the recall petitions and cancel the election. See Lujan, 504 U.S. at 560-61,
112 S.Ct. at 2136 (the “irreducible constitutional minimum” of standing requires as “a causal
connection” that the injury be “fairly traceable” to the challenged action of the governmental
defendant and not the action of a third party).
Just as the trial court is barred by Appellees’ lack of standing from considering their
underlying actions for damages and injunctive relief, the trial court is also prohibited from
declaring the constitutionality of the challenged Election Code provisions, because doing so would
constitute an advisory opinion, which would, at best, address only a hypothetical injury that
Appellees might one day suffer at the hands of another. See Texas Ass’n of Bus., 852 S.W.2d at
444 (an opinion issued in a case brought by a party without standing is advisory because rather
than remedying an actual or imminent harm, the judgment addresses only a hypothetical injury).
Because we have no jurisdiction to render an advisory opinion, Appellees’ counterclaim must be
dismissed in its entirety for lack of jurisdiction. Id.; see also Good Shepherd Med. Ctr., Inc. v.
State, 306 S.W.3d 825, 832 (Tex.App. – Austin 2010, no pet.) (the requirement that there be a
justiciable controversy “serves to safeguard the separation of powers by ensuring that the judiciary
does not encroach upon the executive branch by rendering advisory opinions, decisions on abstract
questions of law that do not bind the parties”).
35
Further, the Declaratory Judgments Act does not provide any separate basis for standing
since it is “merely a procedural device for deciding cases already within a court’s jurisdiction[.]”
Tex. Ass’n of Bus., 852 S.W.2d at 444; see also Texas Parks & Wildlife Dep’t v. Sawyer Trust, 354
S.W.3d 384, 388 (Tex. 2011); State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994). The DJA
“does not extend a trial court’s jurisdiction, and a litigant’s request for declaratory relief does not
confer jurisdiction on a court or change a suit’s underlying nature.” Texas Natural Res.
Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002); see also Monk v. Pomberg,
263 S.W.3d 199, 204 (Tex.App. – Houston [1st Dist.] 2007, no pet.) (whether a court has subject
matter jurisdiction in a declaratory judgment action depends on whether the underlying
controversy is within the jurisdiction of the court).
CONCLUSION
We reverse the trial court’s order denying the City’s plea to the jurisdiction and dismiss
with prejudice all of Appellees’ claims asserted against the City of El Paso and John F. Cook in his
official capacity as the Mayor of El Paso.
STEVEN L. HUGHES, Justice
December 7, 2016
Before McClure, C.J., Rodriguez, and Hughes, JJ.
36