the Board of Trustees of the Houston Firefighters' Relief and Retirement Fund v. the City of Houston, Texas ( 2015 )

ACCEPTED
01-12-01167-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/26/2015 2:01:39 PM
CHRISTOPHER PRINE
CLERK
No. 01-12-01167-CV
IN THE FIRST COURT OF APPEALS FILED IN
HOUSTON, TEXAS 1st COURT OF APPEALS
HOUSTON, TEXAS
5/26/2015 2:01:39 PM
THE BOARD OF TRUSTEES OF THE
CHRISTOPHER A. PRINE
HOUSTON FIREFIGHTERS’ RELIEF AND Clerk
RETIREMENT FUND
Appellant
v.
THE CITY OF HOUSTON, TEXAS
Appellee
RESPONSE TO APPELLEE’S MOTION FOR REHEARING
ON APPEAL FROM THE 189TH JUDICIAL DISTRICT COURT
OF HARRIS COUNTY, TEXAS
NO. 2012-28760
WILLIAM A. WORTHINGTON
Texas Bar No. 22010300
JACK G. CARNEGIE
Texas Bar No. 03826100
KELLY H. LEONARD
Texas Bar No. 24078703
Strasburger & Price, LLP
909 Fannin Street, Suite 2300
Houston, Texas 77010-1036
(713) 951-5600
(713) 951-5660 Fax
william.worthington@strasburger.com
jack.carnegie@strasburger.com
kelly.leonard@strasburger.com
Attorneys For Appellant
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
ARGUMENT .............................................................................................................1
I. The Court Interpreted the Plain Language of the Statute and Did Not
Find It Ambiguous. ..........................................................................................2
II. The Court Considered Previously Whether Section 802.1012 Requires
a Comprehensive Replication Audit Based on the City’s Arguments
and Concluded that It Does Not. ..................................................................... 4
III. Section 802.1012 Does Not Impose a Ministerial Duty on the Board to
Produce the Underlying Materials Requested by the City. ............................. 7
CONCLUSION ..........................................................................................................9
CERTIFICATE OF COMPLIANCE .......................................................................10
CERTIFICATE OF SERVICE ................................................................................11
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INDEX OF AUTHORITIES
Page(s)
CASES
Anderson v. City of Seven Points,
806 S.W.2d 791 (Tex. 1991) ........................................................................1, 3, 6
Galbraith Eng’g Consultants, Inc. v. Pochucha,
290 S.W.3d 863 (Tex. 2009) ................................................................................ 4
In re Columbia Medical Center of Las Colinas,
290 S.W.3d 204 (Tex. 2009) (orig. proceeding) .................................................. 7
In re Prudential Ins. Co.,
148 S.W.3d 124 (Tex. 2009) (orig. proceeding) .................................................. 7
In re Smith,
333 S.W.3d 582 (Tex. 2011) (orig. proceeding) ..........................................4, 7, 8
Leland v. Brandal,
257 S.W.3d 206 (Tex. 2008) ................................................................................4
Lippencott v. Whisenhunt,
No. 13-0926, Slip Op. at 2, ___ S.W.3d ___ (Tex. Apr. 25, 2015)...................... 4
Living, Inc. v. Redinger,
667 S.W.2d 846 (Tex. App.—Houston [1st Dist.] 1984, no writ) ....................... 2
State Bar of Texas v. Heard,
603 S.W.2d 829 (Tex. 1980) ................................................................................ 3
STATUTES
TEX. CIV. PRAC. & REM. CODE § 103.001.................................................................. 8
TEX. GOV’T CODE ANN. § 311.023 ............................................................................ 4
TEX. GOV’T CODE ANN. § 802.1012(c) ..............................................................1, 2, 5
TEX. GOV’T CODE ANN. § 802.1012 .................................................................passim
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ARGUMENT
A court must apply a statute as written. It may not amend a statute judicially
by adding words not contained in the language of the statute.
The principal question in this case is the meaning of Texas Government
Code Section 802.1012 and whether it imposes a ministerial duty on the Board of
Trustees of the Houston Firefighters’ Relief and Retirement Fund (“the Board”) to
provide, in connection with an independent actuarial audit under the statute,
particular information to the City of Houston. See TEX. GOV’T CODE ANN. §
802.1012; Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).
That question was addressed fully in the parties’ briefing and at oral
argument. In a thorough and carefully written opinion, the Court concluded that
Section 802.1012(c) does not “prescribe or define a specific duty” for the Board to
provide the particular information requested. Op. at p. 15. The Court therefore
held that Section 802.1012 does not require that the Board provide the City with
“all information . . . requested by the independent actuary.” Op. at p. 17–18.
Rather, Section 802.1012 “suggests an exercise of judgment [by the Board]” in
protecting confidential information. Id. at 17. The Court’s holding, which
considered both the plain language of the statute and its legislative intent, is not
contrary to Texas law.
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The City’s Motion for Rehearing (“the Motion”) merely disagrees with the
result in this case. The Motion offers no new authority, record citations or
arguments that were not presented to the Court when it rejected the City’s claims
in its Opinion. The Motion should therefore be denied. See, e.g., Living, Inc. v.
Redinger, 667 S.W.2d 846, 856 (Tex. App.—Houston [1st Dist.] 1984, no writ).
I. The Court Interpreted the Plain Language of the Statute and Did Not
Find It Ambiguous.
The City’s Motion presents a series of weak or unsupported assumptions. It
begins with the premise that “the Court [held] that Texas Government Code
Section 802.1012 does not plainly-enough identify the kind of audit it requires of a
pension system’s actuarial evaluation.” Motion at p. 1. Based on this premise, the
City contends that the statute is ambiguous and that the Court should therefore
engage in a protracted statutory analysis to conclude that Section 802.1012
requires a comprehensive, replication audit of the Board’s pension plan.1 Id. at p.
2.
The City raised this same argument in its Response Brief. See Response at
p. 15-17. There, the City addressed the canons of statutory construction and asked
1
The City’s Motion further assumes that, if the statute mandates a replication audit, it
necessarily also mandates the comprehensive disclosure requested of the Board, Motion at 3-4,
and it concludes by assuming that the Board refused to comply with its request to perform a
ministerial duty. Id. at 4-5. While stacking assumptions, the City does not address the premature
timing of both its demand to the Board and its petition for mandamus. Op. at 4-5; See TEX.
GOV’T CODE ANN. § 802.1012(c).
2
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the Court to consider its “context” in interpreting Section 802.1012. Response at
p. 15. The City further urged that, “regardless of whether the language is clear and
unambiguous, the court may consider the circumstances under which the statute
was enacted, the object to be obtained and the consequences of a particular
construction.” Id. In its Motion, the City recites these identical arguments in
asking the Court to reconsider its analysis of Section 802.1012. The Motion
presents nothing new for the Court’s consideration.
Furthermore, the premise upon which the City bases its Motion for
Rehearing lacks foundation. The Court did not conclude that Section 802.1012 is
ambiguous or unclear. To the contrary, the Court held that Section 802.1012 does
not establish “a ministerial (i.e., nondiscretionary) duty ‘to provide and disclose to
the independent actuary . . . all information and/or electronic data (including all
‘census data’) requested by the independent actuary’ for a replication-level audit.”
Op. at p. 17 (citing Anderson, 806 S.W.2d at 793 and quoting trial court’s
December 21, 2012 order in this case). The fact that the statute does not prescribe
a ministerial duty does not render it ambiguous, and the Court’s analysis does not
hinge on whether the statute is ambiguous. The Court considered the plain
language of the statute and whether it requires the Board to perform a ministerial
act under established Texas law. Id.; see, e.g., State Bar of Texas v. Heard, 603
S.W.2d 829 (Tex. 1980).
3
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Not having found the statute ambiguous, the Court did not need to resort to
legislative cannons of construction to interpret Section 802.1012. The Texas
Supreme Court has observed: “[W]e consider it a fair assumption that the
Legislature tries to say what it means, and therefore the words it chooses should be
the surest guide to legislative intent.” In re Smith, 333 S.W.3d 582, 586 (Tex.
2011) (orig. proceeding) (citations and internal quotations omitted). Courts
therefore first look to a statute’s plain meaning. See Lippencott v. Whisenhunt, No.
13-0926, Slip Op. at 2, ___ S.W.3d ___ (Tex. Apr. 25, 2015) (citing Leland v.
Brandal, 257 S.W.3d 206, 206 (Tex. 2008)). If its language is unambiguous, the
court ends its analysis. Id. Only when statutory language is susceptible to more
than one reasonable interpretation, does the court look beyond the statute’s plain
language for clues to the Legislature’s intended meaning. See Galbraith Eng’g
Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867-68 (Tex. 2009) (referencing
TEX. GOV’T CODE ANN. § 311.023)). The plain meaning of Section 802.1012 is
wholly consistent with the Court’s Opinion, and the Court did not, therefore, need
to look beyond the statute’s language.
II. The Court Considered Previously Whether Section 802.1012 Requires a
Comprehensive Replication Audit Based on the City’s Arguments and
Concluded that It Does Not.
After assuming that the Court held that Section 802.1012 is ambiguous—
which the Court did not—the City suggests in Section II of its Motion that, if the
4
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Court had considered (1) legislative intent, (2) context, (3) the consequences of a
construction, and (4) the public interest, then the Court would necessarily have to
conclude that Section 802.1012 requires a comprehensive, replication audit. See
Motion at p. 2-4. The City briefed this point fully in its Response. See Response
at p. 17-22. 2
And, while the Court did not need to look beyond the plain language of
Section 802.1012 to hold that the statute does not impose a ministerial duty upon
the Board, it did. Reviewing the legislative history of Section 802.1012, the Court
concluded that:
[N]either the language of section 802.1012(c) nor the legislative intent
prescribe or define a specific duty to act and, to the extent it implies a
duty, it fails to do so with the “precision” and “certainty” necessary to
make the action ministerial.
Op. at p. 15 (emphases added). Contrary to the City’s suggestion, the cannons of
construction would not change this result. Nor does the City offer any support for
the proposition that the context, legislative history or any other consideration
would change the outcome in this case. Compare Motion at p. 3-2 with Response
at p. 17-22.
2
The Board also briefed the legislative history of Section 802.1012. In its opening brief, the
Board directed the Court to the purposes underlying Section 802.1012, which was intended “to
improve the quality and consistency of information available to state regulators responsible for
oversight of these [public pension] plans.” See Appellant’s Opening Brief, at p. 23, n.18 & 19.
5
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The Court’s opinion considered and answered whether—in the context of a
mandamus proceeding—the City carried its summary judgment burden to
demonstrate that the Board lacked discretion in responding to the City’s request.
The City did not establish that Section 802.1012 imposes a ministerial duty on the
Board, and it does not. A ministerial duty must be defined “with sufficient
certainty that nothing is left to the exercise of discretion.” Op. at p. 9 (citing
Anderson, 806 S.W.2d at 792 n.1). Section 802.1012 does not meet this standard.
As the Court concluded, Section 802.1012 confers discretion to the Board in
working with the City in performing the independent actuarial audit of the Fund’s
assets and liabilities.3 The statute does not therefore “require,” “mandate” or
otherwise impose clearly a duty on the Board to disclose “census data” or the other
material requested by the City in this case. See Op. at p. 17. This holding does not
suggest in any way that the statute itself is ambiguous or requires an analysis of its
Legislative history. It does recognize that the statute provides the Board
discretion, and that the Board’s duty under the statute is not, therefore, purely
“ministerial.” Accordingly, mandamus relief is not a remedy for the City’s claims.
3
The City urges the clarity of its interpretation of Section 802.1012 in support of its claim to
mandamus. The City’s auditor, however, performed only “a high level audit” in 2008, which
suggests that the statute does not “clearly” require a replication audit as the City claims. Op. at
16.
6
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If the City disagrees with the statute, its remedy is through legislative and not
judicial review.
III. Section 802.1012 Does Not Impose a Ministerial Duty on the Board to
Produce the Underlying Materials Requested by the City.
In its final argument, the City assumes that the Board had a ministerial duty
to “supply the independent actuary” with the requested information. Motion at p.
4-5. The City’s concluding assumption is likewise without foundation. Section
802.1012 is not ambiguous. See supra at pp. 2 through 4. Nor does Section
802.1012 impose a ministerial duty upon the Board to produce the requested
information. See supra at pp. 4 through 6.
The City relies upon three cases to support its conclusion that the panel was
incorrect in holding that the Board’s duty to produce is not ministerial. The City’s
reliance on each case is misplaced. None of the cases involve the statute or issues
in this case, and two of the cases are original proceedings brought in the court of
appeals challenging a district court ruling and not an alleged statutorily founded
ministerial duty. In re Columbia Medical Center of Las Colinas, 290 S.W.3d 204
(Tex. 2009) (orig. proceeding), is a petition for mandamus review of a trial court’s
order disregarding a jury verdict and granting a new trial. In re Prudential Ins.
Co., 148 S.W.3d 124 (Tex. 2009) (orig. proceeding), is an original proceeding
seeking a writ of mandamus to enforce a contractual jury waiver. Neither case
involves Section 802.1012 or anything like it.
7
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The third case, In re Smith, 333 S.W.3d 582 (Tex. 2011) (orig. proceeding),
does implicate a statutory provision, but the decision supports the panel’s opinion.
In re Smith arose under the Texas Wrongful Imprisonment Act, TEX. CIV. PRAC. &
REM. CODE § 103.001, which provides monetary compensation to victims of
wrongful conviction and incarceration. The amount of the compensation is
determined by the Texas Comptroller of Public Accounts. Id. at 586-87. The
decision addresses whether mandamus should issue to direct the Comptroller to
recalculate the amount statutorily due to the claimant-former inmate under the
statute at issue in that case. Id.
Neither In re Smith nor the two other cases cited by the City suggest that the
panel erred whatsoever in its interpretation of Section 802.1012 in this case. To
the contrary, In re Smith confirms that this panel was correct in framing its
analysis: whether the plain language of Section 802.1012 required the
performance of a ministerial duty by describing the act clearly and with sufficient
certainty that nothing is left to the exercise of discretion. In re Smith, 333 S.W.3d
at 585 (“The Court’s mandamus authority extends ‘to order or compel the
performance of a judicial, ministerial or discretionary act or duty that, by state law,
the officer or officers are authorized to perform.’); Op. at p. 9. The evidence in
this case does not meet the standard for issuance of a mandamus, and the City’s
8
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citation to three cases arising under other facts and based upon other statutes does
not alter the application of the law to the facts in this case.
The City’s conclusions that (1) the statute is ambiguous, (2) that, upon
analysis, it creates a ministerial duty, and (3) that the Board failed to comply with a
request to perform a ministerial duty were raised and rejected by the Court
previously. Moreover, the cases cited by the City do not support rehearing of the
Court’s Opinion.
CONCLUSION
A well-founded motion for rehearing may rely on subsequent clarifications
of the law or other, new considerations which impact the Court’s analysis. The
City even recognizes that “mandamus lies to correct a newly incorrect application
of the law.” Motion at p. 5. Yet, the City does not point to a change in the law
since this case was briefed or decided or to any other new consideration that would
materially impact the Court’s analysis. The City’s Motion offers nothing that this
Court has not considered already. It should be denied.
WHEREFORE, the Board of Trustees of the Houston Firefighters’ Relief
and Retirement Fund prays that this Court deny The City of Houston’s Motion for
Rehearing, and for such other and further relief, both general and special, whether
at law or in equity, to which it may show itself justly entitled.
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Respectfully submitted,
/s/ William A. Worthington
William A. Worthington
Texas Bar No. 22010300
Jack G. Carnegie
Texas Bar No. 03826100
Kelly H. Leonard
Texas Bar No. 24078703
Strasburger & Price, LLP
909 Fannin St., Suite 2300
Houston, Texas 77010-1036
(713) 951-5600
(713) 951-5660 Fax
william.worthington@strasburger.com
jack.carnegie@strasburger.com
kelly.leonard@strasburger.com
Attorneys For The Board of Trustees
of the Houston Firefighters’ Relief
and Retirement Fund, Appellant
CERTIFICATE OF COMPLIANCE
In accord with Rule 9.4 of the Texas Rules of Appellate Procedure, the
undersigned counsel hereby certifies that this document was generated with a
computer using MS Word and that it contains 2,212 words. Further, this document
was prepared using Times New Roman 14-point font, except for its footnotes
which are no smaller than Times New Roman 12-point font.
Certified to this the 26th day of May, 2015.
/s/ William A. Worthington
William A. Worthington
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CERTIFICATE OF SERVICE
As required by Texas Rules of Appellate Procedure 6.3 and 9.5 (b), (d) and
(e), I certify that a true and correct copy of the foregoing has been forwarded via e-
file to counsel of record on the 26th day of May, 2015:
Donna L. Edmundson
Judith Ramsey
Lynette K. Fons
City of Houston Legal Department
900 Bagby St., 4th FL
Houston, TX 77002
(832) 393-6259 fax
/s/ William A. Worthington
William A. Worthington
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