Jack Pidgeon and Larry Hicks v. Sylvester Turner, in His Official Capacity as Mayor of the City of Houston, and the City of Houston

Affirmed and Majority Opinion and Concurring and Dissenting Opinion filed
April 29, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00214-CV
JACK PIDGEON AND LARRY HICKS, Appellants
V.
SYLVESTER TURNER, IN HIS OFFICIAL CAPACITY AS MAYOR OF
THE CITY OF HOUSTON, AND THE CITY OF HOUSTON, Appellees
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 2014-61812
CONCURRING AND DISSENTING OPINION
In its final order, the trial court impliedly dismissed all claims asserted in
this case for lack of subject-matter jurisdiction and, at the same time, impliedly
granted summary judgment on the merits of the plaintiffs’ claims. This court
should employ a straightforward analysis explaining how the plaintiffs have not
shown the trial court erred in dismissing all claims for lack of subject-matter
jurisdiction based on governmental immunity, affirming only this ruling of the trial
court, and vacating the trial court’s rulings on the merits. Instead, the majority
includes substantial amounts of obiter dicta in its analysis. In addition, after
correctly concluding that the plaintiffs have not shown that the trial court erred in
dismissing all claims for lack of subject-matter jurisdiction, the majority proceeds
to address the merits of the plaintiffs’ claims, over which this court lacks subject-
matter jurisdiction. An appellate court should strive to avoid unnecessary
statements in its opinions, especially if the unnecessary statements address matters
over which the court lacks subject-matter jurisdiction.
Appellants Jack Pidgeon and Larry Hicks (collectively, the “Pidgeon
Parties”) sued appellee Sylvester Turner, in his official capacity as the Mayor of
the City of Houston (the “Mayor”) and appellee City of Houston (“the City”). In
their live petition, the Pidgeon Parties alleged two claims: (1) the Pidgeon Parties
brought suit as taxpayers to enjoin the Mayor’s alleged ultra vires expenditures of
public funds, and to secure an injunction that requires city officials to claw back
public funds that were spent in violation of section 6.204(c)(2) of the Texas Family
Code; article I, section 32 of the Texas Constitution; and article II, section 22 of
the City of Houston charter; and (2) the Pidgeon Parties brought suit under the
Texas Declaratory Judgments Act, asking the trial court to declare that the Mayor
Annise Parker’s directive of November 19, 2013 violated state law, and to declare
further that the mayor and city officials have no authority to disregard state law
merely because it conflicts with their personal beliefs of what the United States
Constitution or federal law requires. The Pidgeon Parties asked the trial court to
make various declarations, to issue a temporary and a permanent injunction, and to
award them attorney’s fees.
The Mayor and the City (collectively, the “City Parties”) asserted in
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“Defendant’s Plea to the Jurisdiction and/or Counter-Motion For Summary
Judgment” (the “Hybrid Motion”) that (1) the trial court lacks subject-matter
jurisdiction over all of the Pidgeon Parties’ claims because the City Parties enjoy
immunity from suit under the doctrine of governmental immunity; (2) the trial
court lacks subject-matter jurisdiction over the Pidgeon Parties’ “claw back” claim
because the Pidgeon Parties do not have standing to seek “claw back” of public
funds already spent; (3) as a matter of law the Pidgeon Parties are not entitled to
any declaratory relief or attorney’s fees; and (4) as a matter of law the Pidgeon
Parties are not entitled to any injunctive relief. Under the first two grounds of the
Hybrid Motion, the City Parties would be entitled to a dismissal for lack of subject-
matter jurisdiction. Under the second two grounds, the City Parties would be
entitled to dismissal of claims on summary judgment on the merits. The trial court
signed a final order granting the Hybrid Motion and dismissing all of the Pidgeon
Parties’ claims without specifying any ground on which the trial court relied.
Thus, the trial court implicitly based the order on each ground stated in the Hybrid
Motion, dismissing for lack of jurisdiction based on the first two grounds and
dismissing on the merits based on the third and fourth grounds. See Okpere v.
National Oilwell Varco, L.P., 524 S.W.3d 818, 824 (Tex. App.—Houston [14th
Dist.] 2017, pet. denied).
When there is an issue as to the trial court’s subject-matter jurisdiction,
including an issue of governmental immunity, the trial court first must determine
that it has subject-matter jurisdiction before addressing the merits. See Hillman v.
Nueces County, 579 S.W.3d 354, 359 n.5 (Tex. 2019); Curry v. Harris County
Appraisal Dist., 434 S.W.3d 815, 820 (Tex. App.—Houston [14th Dist.] 2014, no
pet.). In the face of an issue or doubt as to whether a court has subject-matter
jurisdiction, a court may not presume that it has subject-matter jurisdiction and
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proceed to adjudicate the merits. See Zachary Const. Corp. v. Port of Houston
Ayth. of Harris Cnty., 449 S.W.3d 98, 105 (Tex. 2014); Curry, 434 S.W.3d at 820.
If a court determines that it lacks subject-matter jurisdiction over claims, the court
cannot rule on the merits of the claims and must dismiss the claims for lack of
subject-matter jurisdiction, or, if possible, the court may transfer the claims to a
court that has subject-matter jurisdiction over the claims. See In re Dow, 481
S.W.3d 215, 220 (Tex. 2015) (stating that “Without jurisdiction, we may not
address the merits of the case”); Kormanik v. Seghers, 362 S.W.3d 679, 693 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied).
When reviewing an order in which the trial court paradoxically dismisses
claims for lack of subject-matter jurisdiction and also adjudicates the merits of
those claims, this court should first address all the challenges to the trial court’s
subject-matter jurisdiction. See Curry, 434 S.W.3d at 820. If the trial court
correctly determined that it lacked subject-matter jurisdiction, then this court
should affirm this ruling and vacate that part of the order in which the trial court
addressed the merits. See Stamos v. Houston Indep. Sch. Dist., No. 14-18-00340-
CV, 2020 WL 1528047, at *4 (Tex. App.—Houston [14th Dist.] Mar. 31, 2020, no
pet.) (mem. op.); Curry, 434 S.W.3d at 820. If the trial court erred in dismissing
the claims for lack of subject-matter jurisdiction, then the trial court had the power
to adjudicate the merits, and only then should this court address the challenges to
the grounds on which the trial court dismissed on the merits. See Curry, 434
S.W.3d at 820.
On appeal, the Pidgeon Parties have not shown that the trial court erred in
dismissing all of their claims for lack of subject-matter jurisdiction based on
governmental immunity under the first ground of the Hybrid Motion. The only
bases for avoiding governmental immunity from suit that the Pidgeon Parties have
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asserted are (1) the waiver of immunity contained in the Texas Declaratory
Judgments Act, and (2) their alleged ultra vires claim against the Mayor. The
waiver of immunity contained in the Texas Declaratory Judgments Act applies
only if the claimant seeks a declaratory judgment that a legislative pronouncement
is unconstitutional or otherwise invalid. See Tex. Civ. Prac. & Rem. Code Ann. §
37.006(b); Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628,
633–35 (Tex. 2010). Because the challenged directive in this case is not a
legislative pronouncement, the waiver of immunity under the Texas Declaratory
Judgments Act does not apply to the Pidgeon Parties’ claims. See Tex. Civ. Prac.
& Rem. Code Ann. § 37.006(b); Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618,
622 (Tex. 2011); First State Bank of DeQueen, 325 S.W.3d at 633–35.
The only basis for avoiding the Mayor’s immunity from suit the Pidgeon
Parties assert on appeal is that this immunity does not apply to ultra vires claims.
To fall within this exception to immunity, the Pidgeon Parties must not complain
of the Mayor’s exercise of discretion, but rather must allege, and ultimately prove,
that the Mayor failed to perform a purely ministerial act or acted without legal
authority. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372–73 (Tex. 2009).
The Pidgeon Parties have not alleged or argued that the Mayor failed to perform a
purely ministerial act. Based on advice of counsel, Mayor Parker decided that
federal law required the City to afford same-sex spouses of City employees the
same benefits as opposite-sex spouses. In the Hybrid Motion, the City Parties
argued that this decision was a discretionary act within Mayor Parker’s powers as
mayor of Houston, including her powers under article VI, section 7a of the
Houston City Charter. On appeal, the Pidgeon Parties have not challenged the
bases of this argument; instead, the Pidgeon Parties assert that Mayor Parker did
not have discretion or authority to violate the law. But, if Mayor Parker had the
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authority and discretion to determine whether federal law requires the City to
afford same-sex spouses of City employees the same benefits as opposite-sex
spouses, the exercise of this authority and discretion cannot be an ultra vires act,
even if Mayor Parker made the wrong determination. See Hall v. McRaven, 508
S.W.3d 232, 242–43 (Tex. 2017). In addition, when the Pidgeon Parties filed this
suit, a federal district judge in the Freeman case had issued a preliminary
injunction, ordering the City not to discontinue spousal benefits to same-sex
spouses of City employees. See Freeman v. Parker, Case No. 4:13-cv-3755 (S.D.
Tex. Aug. 29, 2014). While the Pidgeon Parties allege that the Freeman suit was
collusive, there was no question but the injunction was in effect and had not been
invalidated by any court.
The above analysis alone suffices to explain why the trial court’s
jurisdictional dismissal based on governmental immunity should be affirmed. The
majority need not and should not include the obiter dicta contained in subsections
c, d, e, and f of section IV. B. 2. of the majority opinion1 or in section IV.C. of the
majority opinion.2 Because the trial court correctly determined that it lacked
subject-matter jurisdiction based on governmental immunity and because this court
agrees with this determination, this court has no jurisdiction to adjudicate the
merits of the Pidgeon Parties’ claims, and this court should not address the merits
grounds in the Hybrid Motion, as the court does in section IV. B. 3. of the majority
opinion3 and in section IV.D of the majority opinion.4 See Hillman, 579 S.W.3d at
359 n.5; In re Dow, 481 S.W.3d at 220. In its judgment, the majority affirms the
trial court’s order granting the Hybrid Motion. Instead of affirming the entire order
1
See ante at 21–30.
2
See ante at 33–35.
3
See ante at 30–33.
4
See ante at 35–36.
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granting the Hybrid Motion, this court should affirm the part of the order in which
the trial court dismisses all claims for lack of jurisdiction based on governmental
immunity and vacate the part of the order in which the trial court dismisses the
claims on the merits. See Stamos, 2020 WL 1528047, at *4; Curry, 434 S.W.3d at
820. To the extent this court affirms the trial court’s rulings on the merits, I
respectfully dissent. To the extent the court affirms the trial court’s jurisdictional
dismissal based on governmental immunity, I respectfully concur in the judgment
only.
/s/ Randy Wilson
Justice
Panel consists of Justices Zimmerer, Poissant, and Wilson (Poissant, J., majority).
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