Bruce R. Hotze v. Sylvester Turner, Mayor, and the City of Houston ( 2023 )

Supreme Court of Texas
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No. 21-1037
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Bruce R. Hotze,
Petitioner,
v.
Sylvester Turner, Mayor, and the City of Houston,
Respondents
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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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Argued February 1, 2023
JUSTICE BLAND delivered the opinion of the Court.
On a single ballot, voters considered two proposed amendments
to the City of Houston’s charter, one submitted at the behest of the City
Council and the other initiated by local citizens. The election ordinance
included a “primacy clause” stating that the Council’s proposition would
prevail over the citizen-initiated proposition if voters approved the
Council’s proposition by more votes than the citizens’ proposed
amendment.
At the election, voters approved both charter amendments. The
Council’s proposed amendment won more votes than the
citizen-initiated amendment. After the court of appeals compelled it to
do so in separate litigation, 1 the City adopted both amendments to its
charter. Relying on the primacy clause, however, the City claims that
the second amendment did not become effective upon its adoption and
that it may delay the effectiveness of an amendment at its discretion.
The City further argues that it cannot give effect to both amendments
because they irreconcilably conflict.
Several citizens who proposed the citizen-initiated amendment
sued the City, seeking the amendment’s enforcement. They argue that
the primacy clause violates a state law requiring cities to adopt proposed
charter amendments when voters approve of them by a majority vote.
They further claim that the City can and must harmonize the two
propositions because voters approved both. The trial court concluded
that the two propositions could be harmonized. Relying on the primacy
clause, however, the court granted summary judgment in favor of the
City. A divided court of appeals affirmed.
Because the City’s primacy clause requires more than a majority
vote to give effect to the citizen-initiated amendment, it conflicts with
state law requiring that a city must adopt a charter amendment upon
its approval by a majority vote. The City thus may not rely on the
primacy clause to avoid complying with the citizen-initiated proposition.
1 In re Robinson, 175 S.W.3d 824, 832 (Tex. App.—Houston [1st Dist.]
2005, orig. proceeding).
2
Accordingly, we reverse the judgment of the court of appeals. We
remand this case to the trial court to determine whether and the extent
to which the two propositions may be harmonized under the City’s
existing charter provision governing reconciliation of conflicting
amendments, and to consider the effect of the citizen-initiated
amendment’s severability clause for those provisions that conflict.
I
Two proposed charter amendments appeared on the ballot in the
City’s November 2004 election. Petitioner Bruce Hotze and others
initiated one of the amendments through the citizen-petition process. 2
Citizens in home-rule cities may place a proposed charter amendment
on the ballot by submitting a petition signed by at least five percent of
the voters in the municipality or 20,000 voters, whichever is fewer. 3 The
citizens’ submission of the petition triggers the city council’s
nondiscretionary duty to hold an election on the proposed amendment 4
and notify the voters of its content. 5
The City Council developed its proposed amendment in response
to the citizens’ grassroots efforts. Both proposed amendments include
2 Jeffrey N. Daily and Carroll B. Robinson were initially co-plaintiffs in
this suit. Daily passed away during the pendency of trial; Robinson did not join
this appeal.
3 Tex. Loc. Gov’t Code § 9.004(a).
4 Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980)
(“The City Council’s duty is clear, and its compliance with the law is ministerial
in nature. The City Council’s refusal to submit the proposed amendments to
the vote of the people thwarts not only the legislature’s mandate but the will
of the public.”).
5 See Tex. Loc. Gov’t Code § 9.004(c).
3
provisions requiring voter approval for increases in City revenues above
a certain amount, but the voter-approval thresholds, the formulas for
calculating maximum amounts, and the affected revenues differ. The
Council’s proposed amendment requires the Council to seek voter
approval before it increases ad valorem taxes or water and sewer rates
above a specified formula. Under its proposed amendment, the Council
otherwise may assess and collect “any and all revenues . . . without
limitation.” In contrast, the citizen-initiated proposal similarly requires
the City to seek voter approval for increases in City revenues above a
specified formula, but its formula applies to nearly all of the City’s
“Combined Revenues.”
The City Council ordered the election in an ordinance that
includes the full language of each amendment. The City’s proposed
amendment, Proposition 1, included a primacy clause requiring
Proposition 1 to prevail over another proposition relating to revenue
increases, so long as Proposition 1 obtained more votes:
If another proposition for a Charter amendment relating to
limitations on increases in City revenues is approved at the
same election at which this proposition is also approved,
and if this proposition receives the higher number of
favorable votes, then this proposition shall prevail and the
other shall not become effective.
At the election, voters approved both propositions, but
Proposition 1 received more votes than the citizen-initiated amendment,
which was labeled as Proposition 2. Anticipating the City’s refusal to
adopt Proposition 2, Hotze and several others sought mandamus relief
to order the City to adopt it as a charter amendment. The court of
4
appeals granted relief, 6 and the City Council issued an ordinance
adopting both propositions.
On the day he petitioned for mandamus relief, Hotze and others
also sued for a declaratory judgment that Proposition 2 is effective and
enforceable. That suit eventually reached this Court. We held that his
claims alleging noncompliance were not ripe at the time of the suit
because the City had not had time to comply with Proposition 2. 7
Hotze then filed this case, seeking a declaratory judgment that
both propositions are in effect and that the City had failed to comply
with either one. In an order granting partial summary judgment, the
trial court ruled that “Proposition 2 is not effective because of
Proposition 1’s primacy clause.” It further concluded that
“Propositions 1 and 2 are not irreconcilably or substantively
inconsistent and do not trigger” Article IX, Section 19 of the City
Charter. After a bench trial on the remaining issues, the trial court
determined that the City had fully complied with Proposition 1. Hotze
does not appeal that ruling in our Court.
The court of appeals affirmed, holding that the primacy clause
defeats Proposition 2’s effectiveness. 8 Although Local Government Code
Section 9.005 requires a city to adopt a proposed charter amendment if
6 In re Robinson, 175 S.W.3d at 832. As the dissenting justice below
observed, this dispute has taken a “meandering but well-documented path
through the court system.” 634 S.W.3d 508, 518 & n.1 (Tex. App.—Houston
[14th Dist.] 2021) (Jewell, J., dissenting) (citing six appellate opinions
addressing these charter amendments).
7 Robinson v. Parker, 353 S.W.3d 753, 756 (Tex. 2011).
8 634 S.W.3d at 515.
5
approved by a majority of qualified voters, the court of appeals concluded
that the statute does not require that the proposed amendment take
effect. 9 One justice rejected such a distinction and would have held that
the primacy clause conflicts with state law. 10 We granted review.
II
Home-rule cities possess the “full power of local
self-government,” 11 which includes the power of qualified voters in the
city to adopt or amend a city charter by majority vote. 12 The Houston
City Charter protects for its people “the power of direct legislation by
the initiative and referendum.” 13 The ballot-initiative process is “the
exercise by the people of a power reserved to them, and not the exercise
of a right granted.” 14 It “has its historical roots in the people’s
dissatisfaction with officialdom’s refusal to enact laws.” 15
9 Id. at 517.
10 Id. at 523 (Jewell, J., dissenting).
11Tex. Loc. Gov’t Code § 51.072; see City of Laredo v. Laredo Merchs.
Ass’n, 550 S.W.3d 586, 592 (Tex. 2018).
12 Tex. Const. art. XI, § 5(a) (“Cities having more than five thousand
(5000) inhabitants may, by a majority vote of the qualified voters of said city,
at an election held for that purpose, adopt or amend their charters.”).
13Hous., Tex., City Charter art. VII-b, § 1 (“The people of Houston, in
addition to the method of legislation hereinbefore provided, shall have the
power of direct legislation by the initiative and referendum.”).
14 Taxpayers’ Ass’n of Harris Cnty. v. City of Houston, 105 S.W.2d 655,
657 (Tex. 1937); see also Dall. Merch.’s & Concessionaire’s Ass’n v. City of
Dallas, 852 S.W.2d 489, 490–91 (Tex. 1993) (“Home-rule cities possess the full
power of self government and look to the Legislature not for grants of power,
but only for limitations on their power.”).
15 Coalson, 610 S.W.2d at 747.
6
There are limits to the exercise of local power. City charters and
the ordinances amending them must comply with the Texas
Constitution and with state law. 16 A city ordinance thus is unenforceable
to the extent that it is inconsistent with a state statute preempting its
subject matter. 17 Courts do not invalidate city ordinances on this ground,
however, “if any other reasonable construction leaving both in effect can
be reached.” 18
This case comes before us on the parties’ cross motions for
summary judgment. To prevail, a party must establish that it is entitled
to judgment as a matter of law. 19 When the trial court grants partial
relief to each side, the reviewing court may determine all questions
presented and render the judgment that the trial court should have
rendered. 20 We review a trial court’s legal determinations de novo. 21
Hotze challenges the application of the primacy clause on the
ground that it violates state law. The City responds that (1) Hotze’s
Tex. Const. art. XI, § 5(a) (“[N]o charter or any ordinance passed
16
under said charter shall contain any provision inconsistent with the
Constitution of the State, or of the general laws enacted by the Legislature of
this State.”); accord City of Wink v. Griffith Amusement Co., 100 S.W.2d 695,
698 (Tex. 1936) (“The rule is definitely established . . . that ordinances in
conflict with the general or state law are void.”).
17 BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 7 (Tex.
2016).
18 City of Beaumont v. Fall, 291 S.W. 202, 206 (Tex. [Comm’n Op.] 1927).
19 Jordan v. Parker, 659 S.W.3d 680, 684 (Tex. 2022).
20 Id.Tex. Educ. Agency v. Hous. Indep. Sch. Dist., 660 S.W.3d 108, 116
21
(Tex. 2023).
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challenge is untimely because it was not brought in an election contest;
(2) Hotze is estopped from bringing state law challenges he brought in
earlier election contests; and (3) even if the primacy clause is invalid, a
reconciliation provision in the City Charter otherwise defeats
Proposition 2’s effectiveness because Proposition 2 directly conflicts with
Proposition 1. The court of appeals addressed and rejected the merits of
Hotze’s state law challenge. As we conclude this issue is dispositive, we
need not reach Hotze’s other challenges to the court of appeals’ rulings. 22
A
At the outset, the City contends that Hotze has waived his state
law challenge to the primacy clause or is estopped from raising it. 23 The
City argues that a voter’s exclusive remedy for challenging a charter
amendment’s effectiveness is through an election challenge. The City
suggests that Hotze’s claim for Proposition 2’s enforcement is, in
essence, a challenge to the ballot language or ballot preparation because
the primacy clause, though part of the election ordinance, is not
incorporated into the adopted charter amendment. Thus, it argues, the
true nature of Hotze’s claim for enforcement of Proposition 2 is an
22 In his petition, Hotze further alleged that the ballot language and the
election notices violated state law by not informing voters of the primacy clause
and that Proposition 2 does not fall within the scope of the primacy clause
because it does not “relat[e] to limitations on increases in City revenues.” The
court of appeals held that issues regarding ballot language and notice were
waived because they must be pursued in an election contest. 634 S.W.3d at
516. We reject Hotze’s claim that Proposition 2 does not relate to limitations
on increases in revenues. By its own language, Proposition 2 creates a
“limitation on growth in revenues.”
In reaching the merits, the court of appeals implicitly rejected this
23
argument. See 634 S.W.3d at 522 n.8 (Jewell, J., dissenting).
8
election challenge, which a voter must bring within thirty days of the
election. 24
The City’s waiver argument lacks merit. Constitutional
challenges to invalid municipal lawmaking are not confined to election
contests. Election contests are appropriate for challenging irregularities
in the election process that cause the final canvass to reflect results
other than “the true outcome” of the election. 25 We also have recognized
a timely filed election contest as the proper mechanism to challenge
deceptive or misleading ballot language. 26
Instead, the issue here is whether the City must recognize a duly
adopted charter amendment after the election is held. That the City
relies on the primacy clause to argue that the amendment is not effective
does not convert Hotze’s claim into an election contest. Rather, it is a
challenge to the City’s decision not to enforce parts of its charter as it
exists after the election. As we held in an earlier case related to this one,
a suit that challenges a city’s lack of enforcement of a duly adopted
charter amendment is premature when brought immediately upon its
passage. 27 For this reason, we further conclude that Hotze is not
estopped from raising his state law enforcement claim. Because we
24See Tex. Elec. Code § 233.006(b) (establishing a thirty-day window in
which to file an election contest).
25 Tex. Elec. Code § 221.003. Such irregularities may include the
counting of illegal votes, the failure to count legal votes, the prevention of
eligible voters from voting, and fraud or mistakes in the administration of an
election. Id.
26 See Dacus v. Parker, 466 S.W.3d 820, 826 (Tex. 2015).
27 Robinson, 353 S.W.3d at 756.
9
conclude that the issue of whether Proposition 2 is effective was not
waived, we address the merits of the parties’ arguments.
B
The primacy clause instructs that, if Proposition 1 garners more
votes than a related ballot proposition, then it “shall prevail and the
other shall not become effective,” even if voters approved both
propositions.
Hotze argues that the primacy clause conflicts with Local
Government Code Section 9.005(a) because the clause conditions
Proposition 2’s effectiveness on requirements beyond those dictated by
state law. Section 9.005(a) requires the adoption of a proposed charter
amendment “if it is approved by a majority of the qualified voters of the
municipality who vote at an election held for that purpose.” 28 The
primacy clause imposes a heavier burden on Proposition 2 than
Section 9.005(a) permits, he argues, because, for Proposition 2 to take
effect, it must receive not just a majority of votes but also more votes
than Proposition 1. 29
The City acknowledges that Section 9.005(a) governs whether an
amendment is adopted, but it responds that the statute does not prohibit
a local government’s restrictions on an amendment’s effectiveness.
28 Tex. Loc. Gov’t Code § 9.005(a).
29 Because we hold that the primacy clause violates Section 9.005(a), we
do not address Hotze’s additional arguments against applying the primacy
clause to defeat Proposition 2, including his arguments that the primacy clause
was never included in the proposed amendment; that the voters did not vote
on the primacy clause; and that the primacy clause violates Texas Local
Government Code Section 9.004(d) and (e).
10
Under the City’s interpretation, the primacy clause and Section 9.005(a)
do not conflict.
The Texas Constitution prohibits city ordinances that conflict
with state law. 30 While it is true that we harmonize a local ordinance
with state law if such an interpretation is reasonable, we reject the
notion that the primacy clause is consistent with state law governing
the adoption of charter amendments. State law prescribes the method
by which home-rule cities may amend their charters through ballot
propositions. 31 A proposed amendment is adopted if approved by a
majority of voters. 32 The primacy clause dictates a different method for
adopting a charter amendment by requiring the citizen-initiated
proposal to receive more favorable votes than the Council-initiated
proposal to become effective. The imposition of this additional
requirement violates Section 9.005(a).
Section 9.005(a) prescribes all that is required for the adoption of
a proposed charter amendment: “approv[al] by a majority of the
qualified voters of the municipality who vote at an election held for that
purpose.” 33 The statute provides the only relevant vote threshold.
The City insists that, while voters may approve a charter
amendment for “adoption” in accord with state law, the same vote
30 Tex. Const. art. XI, § 5(a) (“[N]o charter or any ordinance passed
under said charter shall contain any provision inconsistent with the
Constitution of the State, or of the general laws enacted by the Legislature of
this State.”).
31 Tex. Loc. Gov’t Code §§ 9.004–.005.
32 Id. § 9.005(a).
33 Id.
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simultaneously may render it ineffective under local law. The City
ignores that its effort at harmony generates disparate outcomes based
on two distinct requirements: the state law majority requirement versus
the local law majority-plus requirement. The two requirements directly
conflict.
We generally do not render statutory language meaningless. 34
The City’s strained construction renders Section 9.005(a) meaningless
because the primacy clause, which requires a different vote total,
nullifies the statute’s majority-rule provision—based on the same vote.
A local ordinance cannot restrict the effectiveness of a related ballot
measure by imposing a higher vote threshold than the statute permits.
We hold that the election ordinance’s primacy clause is void because it
conflicts with state law.
Despite the infirm primacy clause, Proposition 1 remains a part
of the City’s charter. The election ordinance contains a clause permitting
the severance of any clause held unenforceable. 35 Having held the
primacy clause unenforceable, we treat it as severed from the remainder
34 TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016).
35 “That, if any provision, section, subsection, sentence, clause, or
phrase of this Ordinance, or the application of same to any person or set of
circumstances, is for any reason held to be unconstitutional, void, invalid, or
unenforceable, neither the remaining portions of this Ordinance nor their
application to other persons or sets of circumstances shall be affected thereby,
it being the intent of the City Council in adopting this Ordinance that no
portion hereof or provision or regulation contained herein shall become
inoperative or fail by reason of any unconstitutionality, voidness, invalidity or
unenforceability of any other portion hereof, and all provisions of this
Ordinance are declared to be severable for that purpose.” Hous., Tex.,
Ordinance 2004-887, § 13 (Aug. 25, 2004).
12
of the election ordinance. As there is no challenge to Proposition 1’s other
provisions, it remains in effect, and the trial court’s unchallenged ruling
that the City has complied with Proposition 1 stands.
C
The City more generally argues that the effective date for an
amendment that has been duly added to the charter is a matter for the
City’s discretion. Hotze responds that the City’s proposed construction,
permitting it to delay enforcement of a charter amendment for an
unlimited time, fails to comport with Local Government Code
Section 9.005(b).
Section 9.005(b) provides: “A charter or an amendment does not
take effect until the governing body of the municipality enters an order
in the records of the municipality declaring that the charter or
amendment is adopted.” 36 Reading this statute to permit a municipality
to indefinitely delay giving effect to an amendment, as the City suggests,
offends the democratic principles embedded in the Local Government
Code and in the concept of home-rule cities. We presume that the
Legislature intends statutes to be effective in their entirety and feasible
of execution. 37 Giving effect to the Legislature’s intent requires that the
Local Government Code’s ballot-initiative procedures feasibly result in
an effective citizen-initiated charter amendment. We read
Section 9.005(b) to require that an adopted amendment becomes
effective when the municipality declares that the amendment is
36 Tex. Loc. Gov’t Code § 9.005(b).
37 Tex. Gov’t Code § 311.021(2), (4).
13
adopted. Absent other controlling law, the City cannot indefinitely delay
giving effect to Proposition 2 because to do so violates Section 9.005(b).
While this Court has never had the opportunity to interpret
Section 9.005(b), the Fifth Circuit held in Minella v. City of San Antonio
that the statutory instruction that an adopted amendment “does not
take effect until” the municipality declares it adopted necessarily means
that the amendment takes effect when such a declaration takes place. 38
In Minella, the Fifth Circuit considered whether a city council could
prescribe an effective date different from the adoption date for a charter
amendment that contained no effective date within its text. The Fifth
Circuit interpreted Section 9.005(b) as prescribing the effective date of
an amendment to be the date when the municipality enters an order
that adopts that amendment; a contrary rule would permit a city council
to invalidate an adopted charter amendment by delaying its effective
date indefinitely. 39
We agree with the Fifth Circuit that Section 9.005(b) requires
that an amendment take effect upon the entry of the order declaring its
adoption as part of the city charter, absent other law rendering it
ineffective. Delaying effectiveness until the adoption date, as the statute
expressly provides, sensibly allows time for the municipality to prepare
for compliance with the new amendment after voter approval. But to
suggest, as the City does, that an adopted amendment may be added to
38 437 F.3d 438, 440 (5th Cir. 2005).
39 Id. at 441 (quoting In re Robinson, 175 S.W.3d at 831).
14
the city charter without ever becoming effective absent further City
approval is incompatible with Section 9.005(b).
III
Finally, we consider the interplay of Proposition 1 and
Proposition 2, given that voters approved both, the Council has adopted
them, and the City’s reliance on the primacy clause or general discretion
to prescribe a later effective date than the adoption date is unfounded.
The City argues that the two charter amendments inherently conflict. It
observes that the City Charter contains a century-old provision that
governs implementation of conflicting charter amendments approved at
the same election, and that under this provision, Proposition 1 prevails.
Hotze responds that the two charter amendments may be
reconciled. He adds that the City must give effect even to conflicting
charter amendments because the charter’s conflict-resolution provision
is inconsistent with Section 9.005(a)’s requirement that an amendment
must be adopted if approved by a majority vote and Section 9.005(b)’s
instruction that an approved amendment be given effect upon adoption.
Article IX, Section 19 of the Houston City Charter, adopted in
1913, addresses conflicts between charter amendments: “at any election
for the adoption of amendments if the provisions of two or more proposed
amendments approved at said election are inconsistent the amendment
receiving the highest number of votes shall prevail.” 40 This
reconciliation provision resembles the primacy clause in that it permits
one amendment to prevail over another even when both receive a
40 Hous., Tex., City Charter art. IX, § 19.
15
majority of votes; it differs, however, in that it is triggered only by an
inconsistency between those majority-winning amendments.
This case demonstrates that, though Section 9.005 requires a City
Council to adopt and give effect to a citizen-initiated amendment that
the voters approve by a majority vote, a dilemma arises when two
approved amendments conflict. Generally, when faced with conflicting
amendments, a court decides whether the two may be harmonized, or
whether the later amendment impliedly repealed the earlier one. 41 That
rule, however, offers no guidance when the voters approve conflicting
amendments simultaneously. We do not interpret Section 9.005 to
require a local government to achieve the impossible by giving effect to
two conflicting charter amendments adopted at the same election. In the
absence of guiding state law, the City’s charter resolves the issue in a
manner that respects the will of the voters without burdening the City
with the impossible task of complying with incompatible charter
amendments. We therefore reject Hotze’s challenge to the charter’s
reconciliation provision under Section 9.005.
41 See Gordon v. Lake, 356 S.W.2d 138, 139 (Tex. 1962) (“A statute may
be repealed expressly or by implication. Where a later enactment is intended
to embrace all the law upon the subject with which it deals, it repeals all former
laws relating to the same subject.”); Conley v. Daughters of the Republic, 156
S.W. 197, 201 (Tex. 1913) (“There is no express repeal of the former law; hence,
if repealed, it must be by implication, which is not favored. The two laws relate
to the same subject, and should be considered as if incorporated into one act.
If being so considered the two can be harmonized and effect given to each, there
can be no repeal.”).
16
The charter defeats an amendment, however, only if that
amendment is inconsistent with another amendment approved at the
same election. Among other arguments, the City urges that
Proposition 2’s revenue limitation conflicts with Proposition 1’s broad
grant of “full authority” to the City Council to levy taxes unrelated to
the proposition’s ad valorem or water service caps, “without limitation.”
Hotze responds that the two provisions can be harmonized and enforced
together. Applying two overlapping caps creates redundancy, he
suggests, but it does not create an inconsistency that triggers the
charter’s reconciliation provision. He further notes that the City must
give effect to any part of Proposition 2 that is consistent with
Proposition 1 because Proposition 2 contains a severability clause. The
severability clause operates to excise those portions of Proposition 2 that
are void or otherwise unenforceable. Proposition 2, by its own terms,
allows the removal of any of its provisions that conflict with superior law
to preserve any remaining part.
The trial court noted that aspects of the two amendments may be
harmonized, but it did not undertake that effort because it gave effect to
the primacy clause and disregarded Proposition 2 in its entirety. In
addition, the parties did not address the specifics of such harmonization,
nor did they consider the effect of Proposition 2’s severability clause.
Neither the City nor Hotze is entitled to summary judgment on this
record. Having held the primacy clause invalid, we remand the case to
the trial court to determine whether and to what degree the two
propositions may be harmonized, recognizing that Proposition 2 severs
17
out inconsistent provisions to allow those that are consistent to take
effect.
* * *
Because Proposition 1’s primacy clause required voters to approve
a citizen-initiated proposition by greater than a majority vote, it violates
Local Government Code Section 9.005(a)’s majority-rule provision.
Accordingly, we reverse the judgment of the court of appeals in part.
Because it is not challenged, we affirm that portion of the trial court’s
judgment ruling that the City has complied with Proposition 1. We
remand the case to the trial court for further proceedings consistent with
this opinion.
Jane N. Bland
Justice
OPINION DELIVERED: April 21, 2023
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