in Re Sylvester Turner, Mayor and Dave Martin, Houston City Council Member

Petition for Writ of Mandamus Granted and Opinion filed August 23, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00649-CV
IN RE SYLVESTER TURNER, MAYOR, AND DAVE MARTIN, HOUSTON
CITY COUNCIL MEMBER, Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
152nd District Court
Harris County, Texas
Trial Court Cause No. 2018-50136
OPINION
On August 3, 2018, relators Sylvester Turner, Mayor of the City of Houston, and
Dave Martin, Houston City Council Member,1 filed a petition for writ of mandamus in
this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52. In the petition,
relators ask this court to compel the Honorable Kyle Carter, serving as ancillary judge for
the 152nd District Court, in Harris County, Texas, to vacate his temporary restraining
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Relators are the only defendants in the underlying proceeding and are sued in their official capacities
only.
order (“TRO”) restraining relators, and those acting in concert with them, from displaying
on municipal websites or other municipally funded media platforms any audio, video, or
transcribed versions of the City’s Budget and Fiscal Affairs Committee meeting held on
July 26, 2018 (the “July 26 meeting”).
We conclude that the TRO constitutes an abuse of discretion and conditionally
grant relief.
FACTUAL AND PROCEDURAL BACKGROUND
In 2017, the Houston Professional Firefighters Association IAFF-Local 341 (the
“Firefighters Association”) gathered petition signatures to place a proposed city charter
amendment before Houston’s voters to require parity in the compensation provided to
Houston Firefighters and the compensation provided to Houston Police Officers (the
“Charter Amendment”). The petitions were submitted to the City Secretary for review.
On May 3, 2018, the City Secretary certified to the Mayor and City Council that the
petitions had the requisite number of signatures.
The City Council scheduled a council vote for August 8, 2018, to place the Charter
Amendment on the ballot.
The Texas Local Government Code requires that the City publish in the local
newspaper, in advance of an election on a proposed charter amendment, a copy of the
proposed charter amendment, and “an estimate of the anticipated fiscal impact to the
municipality if the proposed amendment is approved at the election.” See Tex. Loc. Gov’t
Code § 9.004(c)(1)–(2). For a charter amendment to appear on the November 2018
general election ballot, the first such publication must occur, at the latest, by mid-October
2018. See id. § 9.004(c)(3).
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Relators’ petition states that the City’s Budget and Fiscal Affairs Committee
scheduled a public meeting for July 26, 2018, in anticipation of the publication of the
estimated fiscal impact of the Charter Amendment and the City Council’s upcoming vote
that would place the Charter Amendment on either the November 2018 or 2019 ballot.
When the July 26 meeting began, Dave Martin, the Chairman of the Committee,
stated that the purpose of the meeting was to discuss the financial implication of the
proposed Charter Amendment. The City’s Director of Finance Tantri Emo and Houston’s
Fire Chief Samuel Peña jointly presented a PowerPoint on the Charter Amendment’s
potential financial impact to the City and the Houston Fire Department. The Greater
Houston Partnership also spoke at the meeting. The Firefighters Association was invited
to make a presentation at the meeting but declined. However, the Firefighters
Association’s lawyer spoke during the public comment portion of the meeting.
Afterwards, a video of the meeting was posted on the City’s website.
On July 30, 2018, the Firefighters Association filed in Harris County district court
a Verified Original Petition, Application for Temporary Restraining Order and Request
for Temporary Injunction and Permanent Injunction, asserting that posting the July 26
meeting video on the City’s website violated the Texas Election Code, and that the
Firefighters Association therefore was entitled to an injunction barring the video’s
continued availability for public viewing on the website.
After hearing the Firefighters Association’s request for a TRO on July 30 and 31,
the ancillary judge signed a TRO restraining relators from displaying on municipal
websites or other municipally funded media platforms any audio, video, or transcribed
versions of the July 26 meeting.
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MANDAMUS STANDARD
To obtain mandamus relief, a relator generally must show both that the trial court
clearly abused its discretion and that relator has no adequate remedy by ordinary appeal.
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
A trial court clearly abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to
analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital
Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). We review
the trial court’s legal conclusions with limited deference. See Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). The relator must establish that the trial
court could reasonably have reached only one decision. Id.
To obtain a temporary injunction, the applicant must plead and prove (1) a cause
of action against the defendant, (2) a probable right to the relief sought, and (3) a probable,
imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d
198, 204 (Tex. 2002). It logically follows that if the record establishes that an applicant
cannot show a probable right to the relief sought, then the applicant is not entitled to a
temporary restraining order. Here, the trial court’s TRO was predicated on its finding that
the Firefighters Association showed a substantial likelihood of a violation of the Texas
Election Code. As discussed below, the record does not support that finding.
ANALYSIS
A. Relevant Authority
Under section 273.081 of the Texas Election Code, “[a] person who is being harmed
or is in danger of being harmed by a violation or threatened violation of this code is entitled
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to appropriate injunctive relief to prevent the violation from continuing or occurring.” Tex.
Elec. Code § 273.081.
Here, the Firefighters Association alleges that relators violated section 255.003 of the
Election Code, which prohibits an officer or employee of a political subdivision from
knowingly spending public funds for political advertising. Section 255.003 provides, in
relevant part:
(a) An officer or employee of a political subdivision may not knowingly
spend or authorize the spending of public funds for political advertising.
(b) Subsection (a) does not apply to a communication that factually describes
the purposes of a measure if the communication does not advocate passage
or defeat of the measure.
(b-1) An officer or employee of a political subdivision may not spend or
authorize the spending of public funds for a communication describing a
measure if the communication contains information that:
(1) the officer or employee knows is false; and
(2) is sufficiently substantial and important as to be reasonably likely to
influence a voter to vote for or against the measure.
(c) A person who violates Subsection (a) or (b-1) commits an offense. An
offense under this section is a Class A misdemeanor.
Id. § 255.003. “Political Advertising” includes a communication supporting or opposing a
measure that appears on an Internet website. See id. § 251.001(16). “Measure” means a
question or proposal submitted in an election for an expression of the voters’ will and includes
the circulation and submission of a petition to determine whether a question or proposal is
required to be submitted in an election for an expression of the voters’ will. Id. § 251.001(19).
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Both relators and the Firefighters Association argue that our court should be guided by
Ethics Advisory Opinion No. 456, which provides in relevant part:
APPLICATION OF SECTION 255.003 OF THE ELECTION CODE TO
COMMENTS MADE BY CITY COUNCIL MEMBERS AT A PUBLIC
MEETING THAT IS BROADCAST OVER A PUBLIC ACCESS
TELEVISION CHANNEL
Ethics Advisory Opinion No. 456
(AOR-510)
July 16, 2004
The Texas Ethics Commission has been asked about the application of
section 255.003 of the Election Code to statements by city council members
at a city council meeting that is recorded and broadcast over a public access
television channel.
...
In our opinion, section 255.003 was not intended to inhibit discussion of
matters pending before a governmental body. When a city council holds a
meeting to discuss whether to place an issue before the voters, council
members and members of the public are likely to voice opinions about the
issue. We do not interpret section 255.003 to prohibit the city from
broadcasting a tape of such a meeting if the broadcast is in keeping with the
city’s regular practice of broadcasting meetings. In that situation, city
resources would not be used “for” political advertising even if an incidental
effect of broadcasting the tape would be to broadcast statements supporting
or opposing a ballot measure.
It is not possible, however, to state that comments by city council members
at a recorded public meeting could never give rise to a violation of section
255.003 because we can imagine a situation in which one or more city
council members might arrange a discussion of a matter not pending before
the city council with the hope that broadcasts of the discussion would
influence the outcome of an election. . . .
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Tex. Ethics Comm’n Op. No. 456 (2004).
B. Abuse of Discretion
The Firefighters Association contends that statements opposing the Charter
Amendment were allegedly made at the July 26 meeting and that those statements constitute
“political advertising.” Therefore, according to the Firefighters Association, making the July
26 meeting video available for public viewing on the City’s website violates Election Code
section 255.003 because public funds are being used “for political advertising.” We conclude
the ancillary judge misapplied the law by finding that the Firefighters Association showed a
substantial likelihood of a violation of Election Code section 255.003.
The proposed Charter Amendment has been pending before the City Council since the
petitions and the Charter Amendment were submitted to the City Secretary on July 17, 2017.
The City Secretary certified to the Mayor and City Council that the petitions had the requisite
number of signatures on May 3, 2018. Two matters already pending before the City Council
at the time of the July 26 meeting were (1) a vote scheduled for August 8, 2018, on whether
to place the Charter Amendment on the ballot and (2) the requirement to publish the estimate
of the fiscal impact of the Charter Amendment in the local newspaper in advance of the
election on the proposed Charter Amendment.
The City’s Budget and Fiscal Affairs Committee scheduled the July 26 public meeting
to obtain information regarding the fiscal impact of the proposed Charter Amendment. The
fiscal impact of the Charter Amendment is relevant to whether voters and Council Members
may oppose or support the Charter Amendment. So, it was not unreasonable or unexpected
that statements tending to indicate support for, or opposition to, the Charter Amendment might
be voiced at the meeting. Such statements, and the broadcast thereof, are specifically
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contemplated by Ethics Advisory Opinion No. 456, which concludes that such public
discussion generally does not violate section 255.003 of the Election Code. Relators offered
evidence that it is a regular practice of the Committee to post videos, audio, and/or transcripts
of its meetings on the City’s website.
We agree with Ethics Advisory Opinion No. 456 that: (1) section 255.003 was not
intended to inhibit discussion of matters pending before a governmental body; (2) when a city
council holds a meeting to discuss pending matters attendant to whether to place an issue
before voters, section 255.003 does not prohibit the city from posting a video of such a
meeting on its website when, as here, doing so is in keeping with the city’s regular practice;
and (3) in this situation, when the pending issue of the Charter Amendment’s fiscal impact
was relevant to whether it should be supported or opposed, public funds were not being used
for political advertising by making the meeting video publicly available, even though an
incidental effect of posting the video on the City’s website may be to re-publish statements
supporting or opposing the Charter Amendment. See Tex. Ethics Comm’n Op. No. 456
(2004).
The second part of Ethics Advisory Opinion No. 456 recognizes the foreseeability of a
potential section 255.003 violation in certain circumstances —such as when one or more city
council members arrange a discussion of a matter not pending before the city council with the
hope that broadcasts of the discussion would influence the outcome of an election. See id. But
that situation is not present here. Rather, a vote to place the Charter Amendment on the ballot
and an evaluation of the fiscal impact of the Charter Amendment were pending before the
City Council; the statements and discussion at the meeting related to the pending matters.
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Accordingly, we conclude that the ancillary judge erred in finding that the Firefighters
Association showed a substantial likelihood of a violation of the Election Code, and therefore,
the judge abused his discretion by issuing the TRO.
C. No Adequate Remedy by Appeal
In In re Office of Attorney General, , the Texas Supreme Court granted mandamus
relief from a temporary restraining order because of “the unavailability of appeal and the
gravity of interests at issue in this case.” 257 S.W.3d 695, 698 (Tex. 2008) (orig. proceeding)
(per curiam). Because relators may not appeal the TRO and this case involves important
matters of public concern which are time sensitive, we conclude that an appeal after any
temporary injunction would not provide relators an adequate remedy.
CONCLUSION
For the above reasons, we conditionally grant the petition for writ of mandamus,
and direct the trial court to vacate the TRO. The writ of mandamus shall issue only if the
trial court fails to do so.
/s/ Ken Wise
Justice
Panel consists of Justices Boyce, Wise, and Jewell.
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