Jody Weiderman v. the City of Arlington, Texas And Jeff Williams, Mayor in His Official Capacity ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00120-CV
JODY WEIDERMAN APPELLANT
V.
THE CITY OF ARLINGTON, TEXAS; APPELLEES
AND JEFF WILLIAMS, MAYOR IN
HIS OFFICIAL CAPACITY
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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 236-277052-15
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OPINION
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In this accelerated appeal, appellant Jody Weiderman appeals from the
trial court’s order granting the plea to the jurisdiction filed by appellees the City of
Arlington, Texas (the city), and Mayor Jeff Williams (the mayor), and dismissing
Weiderman’s declaratory-judgment action. Because Weiderman did not have
standing to bring the action, we affirm the trial court’s dismissal order granting the
plea.
I. BACKGROUND
A. FACTS LEADING TO THE ORDINANCE
The city is a home-rule municipality. See Tex. Const. art. XI, § 5; Tex. Loc.
Gov’t Code Ann. § 9.001 (West 2008); Arlington, Tex., Charter art. III. The city’s
council passed an ordinance implementing a photographic-traffic-signal-
enforcement system (red-light cameras), as allowed by Texas state law.
See Tex. Transp. Code Ann. § 707.002 (West 2011); Arlington, Tex., Rev.
Ordinances ch. Traffic, art. IX (2015). The city contracted with American Traffic
Solutions, Inc. (ATS) to provide red-light-camera services in the city. The
contract permitted the city to terminate the contract “for any reason with or
without cause after ninety (90) days[’] notice at any time after June 10, 2012.”
On January 20, 2015, the city’s secretary, Mary Supino, received a written
“Petition to Ban Red Light Cameras,” petitioning the city, the mayor, and the
city’s council “for an election to amend the Charter of the City of Arlington” to ban
the use of red-light cameras. See Tex. Loc. Gov’t Code Ann. § 9.004(a) (West
2008) (granting qualified voters of a home-rule municipality the right to petition
the governing body to amend its charter); Arlington, Tex., Charter art. VII, § 7
(permitting written petitions to be presented to the city’s council). Because the
city had contracted with the Tarrant County Elections Administrator (the county
administrator) to provide election services for the city, Supino delivered the
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petition to the county administrator the next day “to review and verify the
signatures on the petition.” See Tex. Elec. Code Ann. § 31.092 (West Supp.
2014), §§ 277.002, 277.003 (West 2010). Of the 11,146 signatures on the
petition, the county administrator verified 9,382 signatures as valid and 1,764
signatures as invalid. As required by the city’s charter, the resulting ordinance
ordering an election to amend the city’s charter to ban red-light cameras was
read at two council meetings, and the council voted on and passed the ordinance
at the second meeting on February 24, 2015. Arlington, Tex., Charter art. VII,
§§ 8, 10; see also id. art. III, § 4.B (recognizing power of qualified voters to
petition for amendment to home-rule city’s charter under current election code
section 9.004).
B. ENSUING LITIGATION
The next day—February 25, 2015—Weiderman, a city resident, filed a
declaratory-judgment petition against the city and the mayor, 1 alleging that the
charter did not provide for a citizen-initiated referendum right, contending that the
legislature conferred authority over red-light cameras only on the city’s council,
and requesting a temporary restraining order or injunction preventing the city and
the mayor from taking any other action that would allow a vote on the red-light-
1
At the time Weiderman filed his petition, the elected mayor of the city was
Robert Cluck. However, Williams was elected to serve as mayor of the city on
May 9, 2015, and was sworn in as the city’s mayor on May 26, 2015; thus, he is
automatically substituted as a party in his official capacity. See Tex. R. App. P.
7.2(a).
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camera issue. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001, 37.003 (West
2015); Tex. R. Civ. P. 680. Weiderman had filed a voter-registration application
on February 18, 2015, but was not certified as a registered voter by the voter
registrar until February 27, 2015, two days after he filed his petition. See Tex.
Elec. Code Ann. § 13.002(a) (West Supp. 2014), §§ 13.071–.072 (West 2010).
Weiderman later testified that he believed the red-light cameras should “stay in
the City of Arlington” for “safety reasons.”
The city and the mayor immediately filed a plea to the jurisdiction, arguing
that the trial court did not have subject-matter jurisdiction because courts may not
prohibit an election and because the issue was not ripe for review. See Tex. R.
Civ. P. 85. That same day, the trial court held a hearing on Weiderman’s request
for a temporary restraining order, and the city represented that the mayor already
had signed the ordinance. Therefore, Weiderman recognized that his request for
a temporary restraining order was moot but continued to request that the trial
court enjoin the election itself.
On February 26, 2015, Citizens for a Better Arlington (CFBA)—a political-
action committee—and Faith Bussey—a signatory of the petition, a city resident,
and the sole member of CFBA—filed a plea in intervention and argued that
Weiderman’s claims should be denied for substantially the same reasons relied
on by the city and the mayor in their plea to the jurisdiction. See Tex. Elec. Code
Ann. § 233.004 (West 2010); Tex. R. Civ. P. 60. CFBA and Bussey moved for
dismissal of Weiderman’s claims because their actions in collecting signatures to
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petition the city’s council involved the exercise of their constitutional right to
petition, requested sanctions against Weiderman for filing a groundless pleading,
and pleaded for the recovery of their attorney’s fees. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 9.012, 10.002 (West 2002), §§ 27.001–.011 (West 2015); Tex. R.
Civ. P. 13.
On March 3, 2015, the trial court held an evidentiary hearing on the plea to
the jurisdiction and signed an order granting the plea and dismissing
Weiderman’s petition that same day. 2 On March 20, 2015, Weiderman filed a
mandamus petition and a motion for emergency relief in this court, seeking a writ
of mandamus regarding the trial court’s jurisdictional ruling and arguing that
appeal was an inadequate remedy because the election was “only two months
away.” See Tex. R. App. P. 52.1, 52.10. We denied the petition and the motion
for emergency relief on March 25, 2015; seven days later on April 1, 2015, the
Texas Supreme Court likewise denied Weiderman’s mandamus petition filed in
that court. See In re Weiderman, No. 02-15-00101-CV, 2015 WL 1499070, at *1
(Tex. App.—Fort Worth Mar. 25, 2015, orig. proceeding [mand. denied]).
On April 7, 2015, Weiderman filed a motion for extension of time to file a
notice of appeal from the trial court’s March 3, 2015 order granting the plea to the
jurisdiction and dismissing his claims, which Weiderman asserted was due on
2
The city, the mayor, CFBA, and Bussey, participated in the hearing and
uniformly argued that the trial court had no jurisdiction over Weiderman’s
declaratory-judgment action.
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April 2, 2015. 3 See Tex. R. App. P. 10.5(b), 26.1, 26.3. He requested the
extension because he had “inadvertently missed the deadline.” The city and the
mayor responded to the motion, arguing that it should be denied because
Weiderman failed to reasonably explain the need for the extension. See Tex. R.
App. P. 10.5(b). We granted the motion and ordered the notice to be filed in the
trial court under the date of April 7, 2015. See Tex. R. App. P. 26.3. The city
and the mayor did not file a motion for rehearing or a motion for en banc
reconsideration of this determination. See Tex. R. App. P. 49.1, 49.7.
The proposition to amend the city’s charter to ban red-light cameras was
placed on the ballot for the city’s May 9, 2015 general election and was approved
by a majority of voters: 15,885 voted in favor of the proposition and 10,809 voted
3
By asserting that the due date for his notice of appeal was thirty days after
the trial court’s order, Weiderman implicitly argued that the order disposed of all
issues and parties and was, therefore, a final judgment. See Tex. R. App. P.
26.1(b), 28.1(a). However, CFBA and Bussey’s claims for sanctions and
attorney’s fees prevented the trial court’s order from being construed as a final
judgment; thus, the appeal is accelerated, and Weiderman’s notice of appeal was
due March 23, 2015. See Act of May 29, 2015, 84th Leg., R.S., ch. 1236,
§ 3.001, sec. 51.014(a)(8), 2015 Tex. Sess. Law Serv. 4095, 4097 (West) (to be
codified as nonsubstantive amendment to Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8)); Crites v. Collins, 284 S.W.3d 839, 840–41 (Tex. 2009); Am.
Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 871–72 (Tex. App.—Dallas
2014, no pet.); see also Rauhauser v. McGibney, No. 02-14-00215-CV, 2014 WL
6996819, at *3 (Tex. App.—Fort Worth Dec. 11, 2014, no pet.) (holding
defendant’s motion to dismiss that requested fees and sanctions under section
27.003 survived plaintiff’s nonsuit). Weiderman timely filed his April 7, 2015
motion for extension, however, because he filed it on the fifteenth day after the
twenty-day, accelerated deadline. See Tex. R. App. P. 26.3.
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against it. 4 See Arlington, Tex., Charter art. VII, § 14. On May 13, 2015, the
Arlington Police Department notified ATS that the city was terminating its contract
under the 90-day, at-will termination clause. After the election results were
canvassed and adopted by the city’s council, the city amended its charter on May
19, 2015, to ban the use of red-light cameras. See Arlington, Tex., Charter art.
X, § 12 (2015); see also Tex. Elec. Code Ann. §§ 67.004–.005 (West 2010)
(reciting canvassing requirements). In a sole issue on appeal, Weiderman
argues that the trial court erred by granting the plea to the jurisdiction.
II. DISCUSSION
A. APPELLATE JURISDICTION
In their brief, the city and the mayor argue that Weiderman’s appeal must
be dismissed because his “claimed excuse” for filing his notice of appeal late was
not a reasonable explanation justifying an extension, rendering his notice of
appeal untimely filed. Although the city and the mayor “acknowledge[] that the
Court previously issued a per curiam Order on this matter,” at no point do they
explicitly recognize that we granted Weiderman’s motion for extension and
thereby implicitly concluded that he had presented a reasonable explanation.
Indeed, they do not ask us to reconsider the extension but merely assert, as if for
the first time, that Weiderman did not establish a reasonable explanation. In any
4
Because the measure was placed on the ballot for a general election, the
city incurred no additional costs other than paying the county administrator
$2,662.53 to verify the signatures on the petition.
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event, our determination of the reasonableness of Weiderman’s explanation is a
discretionary one, and the city and the mayor have not raised any argument not
previously raised in their response to Weiderman’s extension motion.
See Dimotsis v. State Farm Lloyds, 966 S.W.2d 657, 657 (Tex. App.—San
Antonio 1998, order) (stating reasonable explanation is any plausible statement
showing that failure to file notice of appeal timely was not deliberate and includes
attorney negligence), disp. on merits, 5 S.W.3d 808 (Tex. App.—San Antonio
1999, no pet.). See generally Alessandra Ziek Beavers, O’Connor’s Texas Civil
Appeals 112 (2014) (discussing sufficient reasonable explanation under rule
10.5(b)). We decline to revisit our prior ruling, especially in the absence of a
motion for rehearing or any new arguments in support of their position.
B. TRIAL COURT JURISDICTION
1. Standard and Scope of Review
A plea to the jurisdiction is a dilatory plea that is unconcerned with the
merits of the asserted claims. Mission Consol. Ind. Sch. Dist. v. Garcia,
372 S.W.3d 629, 635 (Tex. 2012). Such a plea challenges the trial court’s power
to adjudicate a case, and the burden is on the plaintiff to affirmatively
demonstrate the trial court’s jurisdiction. Heckman v. Williamson Cty.,
369 S.W.3d 137, 149–50 (Tex. 2012). Whether a trial court has subject-matter
jurisdiction is a legal question that we review de novo. Tex. Natural Res.
Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). In doing so,
we review the parties’ pleadings, any evidence submitted to negate the existence
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of jurisdiction, and any evidence necessary to resolve the jurisdictional issue.
Heckman, 369 S.W.3d at 150. In short, we are to answer the limited question of
whether the plaintiff affirmatively demonstrated the trial court’s jurisdiction; we
are precluded from addressing the merits of Weiderman’s claims unless the
jurisdictional issue implicates the claims’ merits. See Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 554–55 (Tex. 2000); Thornton v. Ne. Harris Cty. MUD 1,
447 S.W.3d 23, 39–40 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
2. Application
The city and the mayor argue that Weiderman “does not have any special
injury that would give him standing to challenge the holding of the election.”
Standing is a component of a trial court’s subject-matter jurisdiction and ensures
that there is a real controversy between the parties that will be determined by the
judicial declaration sought. Patel v. Tex. Dep’t of Licensing & Regulation,
58 Tex. Sup. Ct. J. 1298, 2015 WL 3982687, at *5 (June 26, 2015); Tex. Ass’n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993). In his
pleadings and at the hearing in the trial court, Weiderman relied on his status as
a taxpayer and registered voter to confer the required standing.
“No Texas court has ever recognized that a plaintiff’s status as a voter,
without more, confers standing to challenge the lawfulness of governmental
acts.” Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001). Therefore, unless a
statute confers standing on him or he seeks to enjoin the prospective expenditure
of public funds, Weiderman must allege some injury distinct from that sustained
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by the public at large. 5 See id.; Bland, 34 S.W.3d at 555–56; cf. Blum v. Lanier,
997 S.W.2d 259, 261–62, 264 (Tex. 1999) (holding qualified voters who signed
petition to initiate election to amend home-rule city’s charter had justiciable
interest in the valid execution of charter-amendment election and, thus, had
interest distinct from general public to confer standing to seek injunctive relief).
Here, there is no evidence that Weiderman suffered an injury distinct from
(1) any other city citizen who disagreed with the red-light-camera petition or
resulting proposition “for safety reasons” or (2) any of the 10,809 certified voters
who voted against the proposition at the May 9, 2015 election. Indeed,
Weiderman admitted at the hearing on the city and the mayor’s plea to the
jurisdiction that he was no different than any other citizen who believed the red-
light-camera program was “good.” 6 Failing such a distinct-injury showing,
Weiderman does not have standing. We conclude that Weiderman’s status and
proposed rationale for standing do not give him an interest sufficiently unique or
peculiar to him to satisfy standing requirements. See Brown, 53 S.W.3d at 305–
06; City of San Antonio v. Strumburg, 7 S.W. 754, 755 (Tex. 1888).
5
We recognize that a party’s status as a taxpayer may confer standing in
the absence of a particularized injury under narrow circumstances. See Andrade
v. Venable, 372 S.W.3d 134, 137–39 (Tex. 2012). Although Weiderman alleged
that he was a taxpayer, he failed to raise any argument either in the trial court or
this court showing that he met the requirements of taxpayer standing.
See Heckman, 369 S.W.3d at 149–50 (holding burden to affirmatively
demonstrate jurisdiction is on plaintiff).
6
On appeal, Weiderman does not address the city and the mayor’s lack-of-
standing arguments.
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See generally William V. Dorsaneo III, The Enigma of Standing Doctrine in Texas
Courts, 28 Rev. Litig. 35, 55–57 (2008) (discussing standing in the context of
cases involving the adjudication of public interests). Accordingly, the trial court
did not have subject-matter jurisdiction over Weiderman’s claims.
III. CONCLUSION
Because Weiderman did not have standing, the trial court correctly granted
the city and the mayor’s plea to the jurisdiction. We overrule Weiderman’s sole
issue and affirm the trial court’s order. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DELIVERED: September 17, 2015
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