the City of Cleveland, Niki Coats, in His Official Capacity as Mayor of the City of Cleveland and Angela Smith, in Her Official Capacity as City Secretary of the City of Cleveland v. Keep Cleveland Safe

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00076-CV
____________________
THE CITY OF CLEVELAND, NIKI COATS, IN HIS OFFICIAL
CAPACITY AS MAYOR OF THE CITY OF CLEVELAND AND ANGELA
SMITH, IN HER OFFICIAL CAPACITY AS CITY SECRETARY OF THE
CITY OF CLEVELAND, Appellants
V.
KEEP CLEVELAND SAFE, Appellee
________________________________________________________________________
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CV1307627
________________________________________________________________________
OPINION
On December 16, 2013, Keep Cleveland Safe (“KCS” or “Plaintiff”) filed an
“Original Petition and Application for Temporary Injunction and/or Permanent
Injunction” (hereinafter “Lawsuit”) to stop the City of Cleveland (“the City”) from
presenting an issue to the people for a vote at the May 10, 2014 election. The
Lawsuit relates to the efforts of certain citizens calling for the City to allow the
1
citizens of the City to vote on a proposed charter amendment regarding a
prohibition on the use of photographic traffic signal enforcement systems or red
light cameras (“Red Light Petition”).1 The City, Niki Coats, in his official capacity
as Mayor of the City, and Angela Smith,2 in her official capacity as City Secretary
of the City (collectively “Defendants” or “Appellants”), appeal the trial court’s
Final Judgment and permanent injunction enjoining the City from holding an
election on the Red Light Petition. We dissolve the permanent injunction, reverse
the judgment of the trial court, and dismiss the case.
BACKGROUND
The City is incorporated under Texas law and operates as a home-rule
municipality. See Tex. Const. art. XI, § 5; see also Tex. Loc. Gov’t Code Ann.
§ 51.072 (West 2008); Cleveland, Tex., Home Rule Charter (2014).3 In October
1
On August 2, 2013, the City Secretary received a “Petition to Ban Red
Light Cameras” but returned it because the document “did not meet the
requirements of the City Charter or State Law[.]” Another petition was filed on
August 19, 2013, the Red Light Petition at issue in this appeal.
2
According to Appellants, Kelly McDonald was the City Secretary for the
City at the time the underlying lawsuit was filed. During the litigation Angela
Smith replaced McDonald as City Secretary. Accordingly, we have automatically
substituted Smith in place of McDonald. See Tex. R. App. P. 7.2(a).
3
In our appellate record, we find a Cleveland Home Rule Charter “as
revised through May 1, 1993.” Additionally, there is a Cleveland Home Rule
Charter, as amended May 20, 2014. At the time of trial, the 2014 Cleveland
2
2009, the Cleveland City Council (“the City Council”) passed an ordinance
authorizing and implementing a photographic traffic signal enforcement program.
See Tex. Transp. Code Ann. § 707.002 (West 2011).
On August 19, 2013, the City Secretary received a document entitled,
“Petition to Ban Red Light Cameras[.]” The Red Light Petition stated the
following:
To the Mayor and City Council of the City of Cleveland (“City”), we,
the undersigned voters of the City of Cleveland, Texas, under Section
9.004 of the Local Government Code, hereby petition for an election
to amend the Charter of the City of Cleveland to add the following as
a separate section to our Charter to read as follows:
The City of Cleveland shall not use photographic traffic signal
enforcement systems to civilly, criminally, or administratively enforce
any state law or City Ordinance against the owner or operator of a
vehicle operated in violation of a traffic control signal, specified by
Section 544.007(d) of the Texas Transportation Code, nor shall it
collect any money from any recipient of a Notice of Violation issued,
in whole or in part, in connection with the use of a photographic
traffic signal enforcement system.
The Red Light Petition included a statement that each person who signed the Red
Light Petition “must be a registered voter and reside in the City of Cleveland[.]”
According to the language in the Red Light Petition, the petitioners filed it to
Charter was admitted into evidence without objection. KCS attached a copy of the
2014 Charter in its appendix to Appellee’s brief. The 2014 Charter contains
amendments to the 1993 Charter. We conclude that the differences are not material
to our analysis and therefore we cite to the 2014 Charter.
3
require the City to place the matter on the ballot for an election to amend the
Cleveland City Charter (“City Charter”) pursuant to section 9.004 of the Texas
Local Government Code. Section 9.004 provides in part as follows:
(a) The governing body of a municipality on its own motion may
submit a proposed charter amendment to the municipality’s qualified
voters for their approval at an election. The governing body shall
submit a proposed charter amendment to the voters for their approval
at an election if the submission is supported by a petition signed by a
number of qualified voters of the municipality equal to at least five
percent of the number of qualified voters of the municipality or
20,000, whichever number is the smaller.
Tex. Loc. Gov’t Code Ann. § 9.004(a) (West 2008).
On August 29, 2013, the City Council passed Ordinance No. 1029, wherein
the City Council accepted the Red Light Petition and stated in part that “[t]he City
Council finds and declares that the proposed charter amendment submitted by the
voters in the Petition to Ban Red Light Cameras shall be submitted to the City’s
qualified voters at the next municipal general election on May 10, 2014.” The
ordinance also directed the City Secretary “to publish notice of the election in
accordance with Section 9.004(c) of the Texas Local Government Code[]” and
prepare the ballots for the election.
On December 16, 2013, KCS filed this Lawsuit. In pleadings filed by KCS
in the Lawsuit, KCS described itself as “a specific-purpose political action
committee created to oppose efforts to conduct a public referendum on the
4
automated photographic traffic signal enforcement program that already has been
properly enacted by the Cleveland City Council.”4 KCS requested that the trial
court “declare that the enactment and repeal of local legislation relating to the use
of photographic traffic signal enforcement systems has been withdrawn from the
field in which the initiative/referendum process operates because the
Transportation Code grants the exclusive authority to implement these systems to
the ‘governing body of a local authority.’” KCS alleged that the City Council
4
Section 251.001(13)(A)(ii) of the Texas Election Code provides that a
“‘[s]pecific-purpose committee’ means a political committee that does not have
among its principal purposes those of a general-purpose committee but does have
among its principal purposes . . . supporting or opposing one or more . . . measures,
all of which are identified[.]” Tex. Elec. Code Ann. § 251.001(13)(A)(ii) (West
2010). According to Exhibit E, filed into the record at trial by KCS, which appears
to be a Form STA, “Appointment of A Campaign Treasurer By A Specific-Purpose
Committee,” Keep Cleveland Safe, is a Specific-Purpose Committee, with an
address of 2668 Highway 36S, #288, Brenham, Texas 77833, and Andy Taylor
(trial counsel of record for KCS) appointed himself to act as treasurer of KCS.
Page two of Exhibit E lists the committee’s purpose as “oppose measure[,]” of an
“unknown” ballot identification, with an election date of “5/14/2014,” to “oppose
measure” with a description of “[o]ppose a City Charter Amendment that will ban
red light cameras in Cleveland, Texas.” According to other exhibits also filed into
the record by KCS, Andy Taylor is also counsel of record for American Traffic
Solutions, and American Traffic Solutions has a contract with the City to install
red light camera systems, operate each camera system, and process violations for a
fixed monthly fee and surcharge for excess use. The City also argued in the trial
court that KCS failed to plead facts demonstrating that it has standing to bring the
suit, that KCS or its members are not taxpayers of the City, and that KCS or its
members have not suffered any particularized injury from the City’s ordinance
calling the election on the Red Light Petition.
5
enacted an ordinance implementing the automated photographic traffic signal
enforcement program, and the exercise of that authority had been “solely granted
to the City Council by the Legislature, [and] should not be subject to revocation by
referendum.” KCS asked the trial court to declare that the ordinance calling for the
May 10, 2014 election “regarding the attempted revocation of the [photographic
traffic signal enforcement program], whether it is called an initiative or a charter
amendment or a referendum, is void and of no legal effect because it falls outside
the power of initiative/referendum reserved for the citizen voters of the City.” KCS
also sought a temporary and permanent injunction to enjoin the Defendants from
conducting the May 2014 election as to the proposed charter amendment and to
declare that the ordinance calling the election is inconsistent with section 707.002
of the Transportation Code.
On January 8, 2014, the Defendants filed a “Plea to the Jurisdiction or
Alternatively, Original Answer[.]” The Defendants alleged that the trial court
lacked jurisdiction and (1) KCS failed to plead facts demonstrating that KCS had
standing to bring the suit, (2) KCS’s claim for relief was not ripe and if the charter
amendment election KCS sought to enjoin failed, the issue would become moot,
(3) Defendants are entitled to governmental immunity, (4) the Real Party has been
omitted and the “true name(s)” of Plaintiff should be substituted for Plaintiff, (5)
6
KCS failed to plead facts showing it is entitled to sue or be sued or has the
authority to bring the suit against the Defendants, (6) the petitioner for the charter
amendment was a necessary party to the suit, and (7) KCS failed to allege facts
showing that the City Council lacked the authority to call an election to amend the
City Charter.5
On February 11, 2014, the City Council adopted Ordinance No. 1043 calling
an election for May 10, 2014, for the purpose of electing individuals to certain City
Council positions and also for accepting or rejecting a number of proposed charter
amendments, including “Proposition No. Four[,]” the proposed charter amendment
outlined in the Red Light Petition. On February 13, 2014, KCS filed its response to
the Defendants’ plea to the jurisdiction.
On February 19, 2014, the trial court conducted an evidentiary hearing on
KCS’s request for a temporary injunction. On March 11, 2014, the trial court
entered an order granting KCS a temporary injunction, enjoining Appellants “from
conducting an election on the [Red Light] Petition[,]” and setting the matter for
trial.
On October 1, 2014, the trial court conducted a bench trial. All parties
appeared through their attorneys and presented documentary evidence and
5
The Defendants also asserted a general denial.
7
arguments, without presenting any testimony from witnesses. On November 24,
2014, the trial court entered an order denying the Defendants’ plea to the
jurisdiction. The trial court then entered a Final Judgment granting the relief as
requested by KCS, finding “that Plaintiff is entitled to permanent injunctive relief.”
The trial court issued a permanent injunction, granted declaratory relief, and
entered a Final Judgment with the following specific findings:
1. A document entitled, “The Petition to Ban Red Light Cameras”
was submitted to the Cleveland City Secretary on August 19, 2013
(the “Petition”). The Petition seeks to mandate the City Council of the
City of Cleveland, Texas, pursuant to Section 9.004 of the Texas
Local Government Code, to call an election for the purpose of
amending the Charter of the City of Cleveland (the “Cleveland
Charter”). The Petition does not comply with Section 8.05 of the
Cleveland Charter. Specifically, Section 8.05 of the Cleveland Charter
sets forth the exclusive procedures under which the Charter may be
amended. That provision is valid and enforceable as a matter of law.
Section 9.004 of the Texas Local Government Code does not preempt
Section 8.05 of the Cleveland Charter.
2. The Petition does not comply with any other provision of the
Cleveland Charter, including Sections 9.01 and 9.02, which define the
initiative and referendum powers of the citizens of Cleveland. The
Petition does not constitute an initiative. The Petition does not
constitute a referendum.
3. Because the Petition was not in compliance with the Cleveland
Charter, the Cleveland City Council lacked the authority to call an
election on it. Accordingly, Ordinance 1029, passed by the Cleveland
City Council on August 29, 2013, and calling for an election on the
Petition (the “First Ordinance”) is void and unenforceable as a matter
of law. Likewise, Proposition (or measure) 4 of Section 4 of
Ordinance 1043, which calls for an election on the Petition, and which
8
passed by the Cleveland City Council on February 11, 2014 (the
“Second Ordinance”), is also void and unenforceable as a matter of
law.
4. The First Ordinance and Proposition 4 of the Second Ordinance
are also void and unenforceable as a matter of law because the Texas
Legislature has expressly delegated the exclusive authority to
implement red-light-camera enforcement programs to the governing
body of a local government, in this instance, the Cleveland City
Council. TEX. TRANSP. CODE § 707.002. That exclusive grant of
power removes the subject of red-light-camera enforcement programs
from the field in which citizen petitions can operate. The subject
matter of the Petition, therefore, falls outside the field for which the
initiatory process exists. Accordingly, the Petition did not authorize
the Cleveland City Council to call for an election and the First
Ordinance and Proposition 4 of the Second Ordinance are void and
unenforceable as a matter of law.
5. The Petition also seeks to render inoperative and to temporarily
prevent the adoption of any subsequent City Council ordinance that
seeks to ban by charter amendment any red-light-camera enforcement
program. Initiative, referendum and charter amendment powers do not
permit the repeal of prohibition of a measure that protects the health,
safety and welfare of all citizens at the behest of individual voters. For
this reason, the Cleveland City Council was not authorized to call for
an election on the Petition. Accordingly, the First Ordinance and
Proposition 4 of the Second Ordinance, calling for an election on the
Petition, are void and unenforceable as a matter of law.
6. The First Ordinance and Proposition 4 of the Second
Ordinance, if permitted to stand for the purpose of calling an election,
would violate or threaten a violation of the Election Code, causing
harm or the danger of harm to Plaintiff. Therefore, under Section
273.081 of the Election Code, injunctive relief is appropriate to
prevent a violation of the Election Code from continuing or occurring
and causing this harm.
9
7. This Court issued a preliminary injunction in this matter on
March 6, 2014. As a result, neither the First Ordinance nor
Proposition 4 of the Second Ordinance was placed on the ballot for
the City of Cleveland’s election which was held on May 10, 2014.
Although the Defendants contend that the cancellation of the election
causes this case or controversy to be moot, the “capable of repetition
yet evading review” exception doctrine applies here because the
challenged act was of such short duration that Plaintiff could not
obtain review before the issue became moot. Where, as here, there is a
reasonable expectation that the same action will occur again if the
issue is not considered, the Court finds the matter to not be moot.
. . .
8. The Court hereby enjoins Defendants The City of Cleveland,
Texas, Niki Coats, Mayor, and Kelly McDonald, City Secretary, and
their officers, agents, servants, employees, attorneys, and those in active
concert or participation with them, from conducting an election on the
Petition pursuant to the First Ordinance or Proposition 4 of the Second
Ordinance.
9. It is further ordered, adjudged, and decreed that all relief
requested in this case not expressly granted is denied. This judgment
finally disposes of all parties and all claims and is appealable.
The Defendants timely filed a Request for Findings of Fact and Conclusions of
Law and a Motion for New Trial. The Motion for New Trial was overruled by
operation of law. On January 13, 2015, the trial court entered Findings of Fact and
Conclusions of Law, in relevant part as follows: the trial court has subject matter
over all the parties and all of the KCS’s claims; Defendants are not immune from
the suit and that KCS’s claims are not moot because the controversy and the facts
trigger the “capable of repetition yet evading review” exception to the mootness
10
doctrine; the Red Light Petition does not comply with Section 8.05 or any other
provision of the City of Cleveland Charter; Section 9.004 of the Texas Local
Government Code does not preempt Section 8.05 of the City of Cleveland Charter;
the Red Light Petition does not constitute an initiative or referendum; Ordinances
1029 and 1043 are void and unenforceable as a matter of law; section 707.002 of
the Transportation Code delegates the exclusive authority to implement red-light-
camera enforcement programs to the Cleveland City Council and, therefore, the
subject is removed from the field in which citizen petitions can operate; where, as
here, the matter is not moot because the record shows that despite the cancellation
of the election there is a reasonable expectation that the same action will occur
again if the issue is not resolved in this proceeding; and the trial court permanently
enjoined the Defendants and their officers, servants, employees, attorneys and
those in active concert or participation with them, from conducting an election
pursuant to the First Ordinance and Proposition 4 of the Second Ordinance. The
Defendants timely filed a notice of appeal.
ISSUE ON APPEAL
In one issue the Appellants contend that the trial court erred in permanently
enjoining the City from conducting an election on the proposed charter amendment
because the trial court lacked jurisdiction, and because the subject has not been
11
removed from the referendum and initiative power of the people. Appellants
contend that under the separation of powers doctrine, the district court should not
have interfered with the elective process. Appellants argue that the City Council,
having received and accepted a petition that met the requirements of section
9.004(a) of the Texas Local Government Code, had a duty to place the matter on
the ballot, the City Council followed proper procedure and fulfilled its duty by
passing two ordinances calling for a charter amendment election as requested in
the Red Light Petition, and the trial court erred in interfering with the elective
process. Appellants contend that, even if the City had not received a valid petition
demanding an election on the proposed charter amendment, the City Council had
the authority pursuant to section 9.004(a) to call for an election on the proposed
amendment. According to Appellants, there is no conflict between section 8.05 of
the City Charter and section 9.004(a) of the Texas Local Government Code.
Appellants assert that the district court was without jurisdiction to enjoin future
elections, the proposed charter amendment is not inconsistent with Chapter 707 of
the Transportation Code, and there is no language in section 707.002 that expressly
withdraws the use of photographic traffic enforcement systems from the field in
which an initiative or referendum may operate. Accordingly, Appellants contend
that the trial court erred in granting KCS a permanent injunction, in declaring the
12
ordinances calling for an election void and unenforceable, and in enjoining the City
from placing the matter on a ballot for the people to decide whether the City should
use red light cameras.
DISCUSSION
We construe city charters according to the rules governing the interpretation
of statutes generally. City of Houston v. Todd, 41 S.W.3d 289, 297 (Tex. App.—
Houston [1st Dist.] 2001, pet. denied); Rossano v. Townsend, 9 S.W.3d 357, 363
(Tex. App.—Houston [14th Dist.] 1999, no pet.); Willman v. City of Corsicana,
213 S.W.2d 155, 158 (Tex. Civ. App.—Waco 1948), aff’d, 216 S.W.2d 175
(1949). Statutory construction is a question of law that we review de novo. Atmos
Energy Corp. v. Cities of Allen, 353 S.W.3d 156, 160 (Tex. 2011); R.R. Comm’n of
Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex.
2011). When construing a statute, our primary task is to give effect to the
Legislature’s expressed intent. Atmos Energy Corp., 353 S.W.3d at 160; Iliff v.
Iliff, 339 S.W.3d 74, 79 (Tex. 2011). We rely on the plain meaning of the text
unless a different meaning is supplied by legislative definition or is apparent from
the context or the construction leads to absurd results. City of Rockwall v. Hughes,
246 S.W.3d 621, 625-26 (Tex. 2008).
13
A home-rule city derives its powers from the Texas Constitution and from
the people. See Tex. Const. art. I, § 2; id. art. XI, § 5; see also Tex. Loc. Gov’t
Code Ann. § 51.072. As a home-rule city, the City of Cleveland possesses “the full
power of self[-]government and look[s] to the Legislature not for grants of power,
but only for limitations on [its] power.” Dallas Merchant’s & Concessionaire’s
Ass’n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993). We presume a home-
rule city charter provision or ordinance is valid, and the courts cannot interfere
unless the provision is unreasonable and arbitrary, amounting to a clear abuse of
municipal discretion. See City of Brookside Village v. Comeau, 633 S.W.2d 790,
792 (Tex. 1982); Todd, 41 S.W.3d at 295. However, if a city charter provision or
ordinance attempts to regulate a subject matter that has been preempted by a state
statute, the charter provision or ordinance is unenforceable to the extent it conflicts
with the state statute. See Dallas Merchant’s & Concessionaire’s Ass’n, 852
S.W.2d at 491. If the Legislature decides to preempt a subject matter, it must do so
with “unmistakable clarity.” Id. Accordingly, courts will not hold a state law and a
city charter provision repugnant to each other if they can reach a reasonable
construction leaving both in effect. Id.
14
The Initiative or Referendum Process
Initiative and referendum powers are reserved for use by local voters of
home-rule cities. See Glass v. Smith, 244 S.W.2d 645, 636 (Tex. 1951); Taxpayer’s
Ass’n of Harris Cty. v. City of Houston, 105 S.W.2d 655, 657 (Tex. 1937). The
initiative and referendum process allows the people to have direct participation in
lawmaking. Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980).
“[T]he power of . . . referendum . . . is the exercise by the people of a power
reserved to them,” and charter provisions should be “liberally construed” in favor
of this power. In re Woodfill, 470 S.W.3d 473, 480 (Tex. 2015) (per curiam)
(quoting Taxpayer’s Ass’n of Harris Cty., 105 S.W.2d at 657 (The power of
initiative and referendum “is the exercise by the people of a power reserved to
them, and not the exercise of a right granted.”)). However, a city charter and the
power of the people to exercise the initiative or referendum process cannot be
inconsistent with the Constitution of the State and general laws of the State. Tex.
Const. art. XI, § 5(a) (“no 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”); see Glass, 244 S.W.2d at
649 (“the field in which the initiatory process is operative is not unlimited”). State
law prohibits a city charter from being altered, amended, or repealed more than
15
once every two years. Tex. Const. art. XI, § 5(a) (“no city charter shall be altered,
amended or repealed oftener than every two years”).
The Legislature may remove by general law a subject matter from the
initiatory process. See Quick v. City of Austin, 7 S.W.3d 109, 124 (Tex. 1999);
Glass, 244 S.W.2d at 649. And, the initiatory process may be limited by a city
charter to “legislative matters.” Glass, 244 S.W.2d at 649. Any rights conferred or
claimed under a charter, including the right of the people to exercise the initiatory
process, remain subordinate to the provisions of the Constitution and general laws
of this State. Id. Nevertheless, charter provisions should be liberally construed in
favor of the power of initiative and referendum, and any limitation on the power of
the people to exercise the initiative or referendum process will not be implied
unless the provisions of the charter are clear and compelling. Quick, 7 S.W.3d at
124; Glass, 244 S.W.2d at 649; In re Arnold, 443 S.W.3d 269, 275 (Tex. App.—
Corpus Christi 2014, orig. proceeding).
Jurisdiction and Standard of Review
As a general rule, the “separation of powers” doctrine6 and the judiciary’s
“deference to the legislative branch” require the judicial branch to refrain from
6
Our State Constitution expressly includes a separation of powers provision:
16
interfering in the elective process. Blum v. Lanier, 997 S.W.2d 259, 263 & n.6
(Tex. 1999) (citing, among other cases, City of Austin v. Thompson, 219 S.W.2d
57, 59 (Tex. 1949) (district court is without authority to enjoin even a void
election) and Ex parte Barrett, 37 S.W.2d 741, 742 (Tex. 1931) (orig. proceeding)
(injunction against holding an election is outside the general scope of judicial
power). “Texas law does not allow a trial court to enjoin an election ordered by a
co-equal branch of government, even if that election is subject to being later
determined that it was conducted in violation of Texas law.” Rodriguez v.
Beaumont Indep. Sch. Dist., 413 S.W.3d 524, 535 (Tex. App.—Beaumont 2013, no
pet.).
Similarly, courts should not issue advisory opinions regarding the legality of
a proposed law that is to be submitted to the electorate because such a matter
would generally not be ripe for declaratory judgment if the action is filed before
The powers of the Government of the State of Texas shall be
divided into three distinct departments, each of which shall be
confided to a separate body of magistracy, to wit: Those which are
Legislative to one; those which are Executive to another, and those
which are Judicial to another; and no person, or collection of persons,
being of one of these departments, shall exercise any power properly
attached to either of the others, except in the instances herein
expressly permitted.
Tex. Const. art. II, § 1. See generally Clinton v. Jones, 520 U.S. 681, 699 (1997)
(“The doctrine of separation of powers is concerned with the allocation of official
power among the three coequal branches of our Government.”).
17
the election is held. City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex. 1985);
Coalson, 610 S.W.2d at 747; see also Gen. Land Office v. OXY U.S.A., Inc., 789
S.W.2d 569, 570 (Tex. 1990) (“[T]he judicial power does not embrace the giving
of advisory opinions.”). District courts generally should refrain from interfering
with the election process before the matter is submitted to the electorate, because it
does not present a justiciable question. See Rodriguez, 413 S.W3d at 535 (citing
Blum, 997 S.W.2d at 263 & n.6).
The separation of powers also limits the ability of a court to issue a
permanent injunction that enjoins a City from exercising the powers inherent in the
legislative process. We have three separate branches of government, and “no one
of them, and least of all the judicial department, should attempt to exceed the limits
set about it and invade by such interference the domain of another.” Dallas v.
Couchman, 249 S.W. 234, 239 (Tex. Civ. App.—Dallas 1923, writ ref’d). The
ability of a court to permanently enjoin a City from conducting an election is
generally prohibited because it violates the separation of powers between the
legislative and judicial branch. See Blum, 997 S.W.2d at 263; Coalson, 610 S.W.2d
at 747. Similarly, in Couchman, the court discussed the impropriety of enjoining a
legislative body from enacting ordinances:
As before stated, the record clearly establishes that the ordinance has
not been finally enacted, and that it is still pending before the board of
18
commissioners, to be finally considered and acted upon. The decree of
the court, therefore, enjoins a legislative act of the board of
commissioners. It is well settled . . . that the enactment of a void
ordinance will not be enjoined, although its invalidity clearly appears,
unless it also clearly appears that the mere enactment of the ordinance
of itself will work irreparable injury without the intervention of some
wrongful act under its authority.
...
Being lawfully clothed with legislative power, they must be left in the
exercise of that power to the enactment of ordinances according to the
dictates of their legislative judgment, regardless of whether or not any
particular enactment may be valid or invalid. Especially in such
instances as where the enactment of their invalid ordinances of itself
does not work an irreparable injury without the intervention of some
act done under or by virtue of it.
Couchman, 249 S.W. at 239, 240; see also City of Rusk v. Cox, 665 S.W.2d 233,
237 (Tex. App.—Tyler 1984, writ ref’d n.r.e.) (finding an injunction necessary to
provide relief against enforcement does mean that a court may enjoin a city from
enacting future zoning ordinances); City of Universal City v. City of Selma, 514
S.W.2d 64, 73 (Tex. Civ. App.—Waco 1974, writ ref’d n.r.e.) (The proper practice
is to wait until the ordinance is passed and the city attempts to operate under it
before seeking relief against the City.); City of Monahans v. State ex rel. Cook, 348
S.W.2d 176, 179 (Tex. Civ. App.-El Paso 1961, writ ref’d n.r.e.) (“[T]he
restraining of the passage of an ordinance is a legislative act, and such restraint
cannot be exercised by the courts.”). Moreover, to be entitled to a permanent
19
injunction against a municipality in what are inherently legislative tasks, the party
must show irreparable injury:
More is required than the mere enactment of the void ordinance, even
one invalid on its face; it must also clearly appear “that the mere
enactment of the ordinance of itself will work irreparable injury
without the intervention of some wrongful act under its authority.”
[Couchman, 249 S.W. at 239]; Spinks Indus., Inc. v. City of Fort
Worth, 452 S.W.2d 799, 800 (Tex. App.—Fort Worth 1970, no writ).
The fact that an ordinance is void alone works no injury. Id. Only
after acts are impending or steps are already being taken to directly
cause harm does the basis for relief exist, and only then may the
authority of a court be invoked to restrain the injury. Couchman, 249
S.W. at 239; see Monahans, 348 S.W.2d at 179. Where passage of the
ordinance will cause no irreparable harm or injury beyond the power
of redress by subsequent judicial proceedings, judicial interference is
not warranted, even if the proposed ordinance disregards some
constitutional restraint. City of Houston v. Houston Gulf Coast Bldg.
and Constr. Trades Council, 697 S.W.2d 850, 852 (Tex. App.—
Houston [1st Dist.] 1985, no writ); see A&A Constr. Co. v. City of
Corpus Christi, 527 S.W.2d 833, 835 (Tex. App.—Corpus Christi
1975, no writ).
City of Port Isabel v. HP Pinnell, 207 S.W.3d 394, 418 (Tex. App.—Corpus
Christi 2006, no pet.).
KCS argues that the trial court had jurisdiction to issue a permanent
injunction and declaratory judgment in this case before the proposition was
submitted to the electorate because the initiative relates to a matter that has been
exclusively withdrawn from the field in which the initiatory process may operate
and therefore the issue presents a justiciable question. The City argued in the trial
20
court that it lacked jurisdiction over the matter because the matter was moot and
there was no justiciable controversy.
Glass, Coalson, and Blum
KCS and the City both cite to and rely, in part, upon three Texas Supreme
Court cases in their briefs, Glass, Coalson, and Blum.7 We agree that all three cases
are instructive. Therefore, before proceeding any further, we discuss each of these
cases in more detail.
Glass involved several members of the City of Austin fire department who
had signed an initiative petition to call an election on a proposed ordinance
pertaining to several employment matters affecting firefighters and police. 244
S.W.2d at 647. The City Council of Austin refused to place the matter on the ballot
and the members of the fire department sought relief in the trial court. The trial
court granted the writ of mandamus as prayed for and that judgment was affirmed
by the Court of Civil Appeals. Id. at 647. The Texas Supreme Court affirmed the
writ of mandamus requiring city authorities to hold an election after the requisite
number of signatures was obtained. See id. at 648, 653-54. The Court held that the
7
KCS also references several cases from other states in support of its
argument that the trial court had jurisdiction to decide whether the matter had been
removed from the initiative process. We need not address the out of state cases
cited by KCS as they are not controlling over the decisions of this Court. See
Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993).
21
plaintiffs, as petition signers, had a justiciable interest in their proposed ordinance
being submitted to the people for a vote. Id. at 648. The Court noted,
Once the people have properly invoked their right to act legislatively
under valid initiative provisions of a city charter and the subject
matter of the proposed ordinance is legislative in character and has not
been withdrawn or excluded by general law or the charter, either
expressly or by necessary implication, from the operative field of
initiative, members of the City Council and other municipal officers
should be compelled by the courts to perform their ministerial duties
so as to permit the legislative branch of the municipal government to
function to the full fruition of its product, though that product may
later prove to be unwise or even invalid.
Id. at 654. The Court stated that
While we do not agree with the full import of the rule announced by
the Court of Civil Appeals, we do agree with its conclusion that
respondents being otherwise entitled to have the initiative election
called and held, cannot be defeated in that right by the refusal of
petitioners to perform purely ministerial duties on the ground that in
their opinion the ordinance would be invalid if adopted. We believe
also that to determine whether respondents are otherwise entitled to
have the election called and held the courts inquiry should be on a
broader basis than that established by the opinion of the Court of Civil
Appeals. As heretofore[] indicated, the inquiry of the Court of Civil
Appeals extended only to a determination of whether the subject
matter of the ordinance was legislative in character. But to entitle
respondents to a writ of mandamus on the ground that they have a
legal right to have the election called and held and that petitioners are
under a legal duty to order and to hold it, it is not enough that the
subject matter of the proposed ordinance be legislative in character
but it must also appear that the subject matter of the ordinance has not
been withdrawn from the field in which the initiatory process is
operative.
22
Id. at 648. As stated above, a governing body cannot defeat the right to an initiative
election by refusing to “perform purely ministerial duties on the ground that in [its]
opinion the ordinance would be invalid if adopted.” Id. However, mandamus may
issue only where the “subject matter of the proposed ordinance [is] legislative in
character” and has not been “withdrawn from the field in which the initiatory
process is operative.” Id. The subject matter of the proposed ordinance may have
been “withdrawn, expressly or by necessary implication, by either the general laws
or the city charter.” Id. at 650. “Any rights conferred by or claimed under the
provisions of a city charter, including the right to an initiative election, are
subordinate to the provisions of the general law.” Id. at 649. Therefore, before
mandamus can issue, the appellate court must determine that the subject matter of
the proposed ordinance has not been withdrawn from the field in which the
initiatory process is operative. Id.
Almost thirty years after Glass, the Texas Supreme Court issued its opinion
in Coalson. In Coalson, the relators sought a writ of mandamus to order the
Victoria City Council to submit a proposed charter amendment to the public for a
vote. 610 S.W.2d at 745. The Texas Supreme Court noted that the relators
complied with article 1170, the predecessor of section 9.004 of the Texas Local
Government Code, and the Court ordered the City to proceed with the election. See
23
id. at 745-46. Notably, much like KCS does in the case at bar, the Coalson
respondents argued that they instituted the suit for declaratory judgment seeking
adjudication that the relators’ proposed charter amendment had been withdrawn
from the field in which the initiatory process is operative and therefore they should
be allowed to obtain a declaratory judgment prior to having the measure submitted
for a vote. See id. at 746. The Court explained, however, that
The declaratory judgment action was prematurely filed. The election
process had been lawfully put in motion and the declaratory judgment
action was improperly used as a vehicle to frustrate the process. The
declaratory judgment suit, at this stage of the proceedings, seeks an
advisory opinion. The election may result in the disapproval of the
proposed amendment. District courts, under our Constitution, do not
give advice nor decide cases upon speculative, hypothetical, or
contingent situations. The election will determine whether there is a
justiciable issue, at which time the respondents’ complaints against
the validity of the initiatory process under article 1170 may be
determined by the trial court.
Id. at 746-47 (citations omitted). The City Council’s compliance with the law was
ministerial and “[t]he 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.” Id. at 747. Accordingly, a writ of mandamus was ordered requiring the
City to proceed with the election. Id.
The Texas Supreme Court issued its decision in Blum in 1999. Again, on
mandamus review, the Court examined a voter initiated petition drive to propose
24
an amendment to the City of Houston charter ending “preferential treatment” in
public employment and contracting. 997 S.W.2d at 260, 261. After receiving a
citizen initiated petition, the Houston City Council adopted an ordinance calling
for an election on the proposed amendment. Id. at 261. However, the plaintiff,
Blum, objected to the description of the amendment to be used on the ballot, and
filed suit to enjoin the city from using “vague [and] indefinite” or misleading
language on the ballot “to describe the proposed amendment.” Id. The trial court
concluded that it lacked subject matter jurisdiction to issue an injunction but
concluded that it had jurisdiction to decide the mandamus, and denied mandamus
relief. Id. On appeal, the City argued that the matter was moot because the election
had begun. Id. The Houston Court of Appeals concluded that the matter was not
moot, but that Blum lacked standing to obtain injunctive relief and affirmed the
trial court on that basis. Id. The City argued that the injunction against the City
might cause the upcoming election to be postponed. Id. at 263.
The Texas Supreme Court reversed and remanded the case to the trial court
for further proceedings. The Court explained that although an injunction that
delays the election would be improper, an injunction that “facilitates the elective
process may be appropriate.” Id. “In short, if the matter is one that can be judicially
resolved in time to correct deficiencies in the ballot without delaying the election,
25
then injunctive relief may provide a remedy that cannot be adequately obtained
through an election contest.” Id. at 263-64.
Accordingly, the Court held that the plaintiff had standing to seek injunctive
relief forbidding the City’s use of misleading language describing the proposed
amendment. See id. at 260-65. Furthermore, relying in part on Glass, the Court
concluded that petition signers, as sponsors of an initiative, possess a justiciable
interest in the valid execution of the election that is distinct from the interest
possessed by the general public. Id. at 262 (citing Glass, 244 S.W.2d at 648, 653-
54). Finally, the Court also rejected the City’s argument that the matter was moot.
Id. at 264. As noted by the Court, the parties reported to the Court that the
proposed charter amendment failed, Blum had amended his petition to add an
election contest, and the trial court advised that it was going to sustain the election
contest. Id. The Court stated that “[b]ecause the City controls the proposition
language and to some extent may also dictate the amount of time the initiative
sponsors will have to seek judicial relief prior to the election, a repetition of the
events in this case is possible.” Id. Therefore, the “capable of repetition yet
evading review” doctrine applied. Id.
26
Application to the Facts
The case now before us, unlike Glass, Coalson, and Blum, is not a
mandamus action. We are not being asked to review an interlocutory temporary
injunction, nor does the injunction issued in the case at bar facilitate the language
to be used in a proposed charter amendment for an upcoming election, as in Blum.
In fact, the time set for the May 2014 election had already passed prior to trial.
And, the sole relief that KCS sought in its Original Petition was for the trial court
to grant an injunction to enjoin the City from “conducting the previously described
election in May 2014” and “declare that the Ordinance calling the election is
inconsistent with state law, specifically, Chapter 707.002 . . . and is therefore
illegal and void” and that the “temporary injunction be made a permanent
injunction[.]” KCS, is a specific-purpose committee, formed solely to oppose the
charter amendment set for the May 2014 election, and by virtue of the Texas
Constitution the City was prohibited from having another charter amendment
election for two years.
The mere possibility that a different Petition for a Red Light Camera
amendment to the charter could be submitted in the future by the citizens of
Cleveland, or that KCS might again file papers to form another specific-purpose
committee to challenge such hypothetical petition, or that the Cleveland City
27
Council might pass a similar ordinance calling for another charter amendment at a
future election is not sufficient to satisfy the “capable of repetition, yet evading
review” narrow exception to the mootness doctrine.
As a general rule, a case is determined to be moot “‘when the issues
presented are no longer “live” or the parties lack a legally cognizable interest in the
outcome.’” Murphy v. Hunt, 455 U.S. 478, 481 (1982) (quoting U.S. Parole
Comm’n v. Geraghty, 445 U.S. 388, 396 (1980)). Courts are precluded from
deciding a moot controversy. OXY U.S.A., Inc., 789 S.W.2d at 570-71. Texas
courts recognize two exceptions to the mootness doctrine: 1) “capable of
repetition, yet evading review”, and 2) collateral consequences doctrine. Id. at 571.
The Supreme Court has explained that “in the absence of a class action, the
‘capable of repetition, yet evading review’ doctrine [i]s limited to the situation
where two elements combine[]: (1) the challenged action [i]s in its duration too
short to be fully litigated prior to its cessation or expiration, and (2) there [i]s a
reasonable expectation that the same complaining party would be subjected to the
same action again.” Murphy, 455 U.S. at 482 (quoting Weinstein v. Bradford, 423
U.S. 147, 148 (1975) and citing Ill. Elections Bd. v. Socialist Workers Party, 440
U.S. 173, 187 (1979); Sosna v. Iowa, 419 U.S. 393 (1975)); see also Williams v.
Huff, 52 S.W.3d 171, 184 (Tex. 2001). The mere physical or theoretical possibility
28
that the complaining party may be subjected to the same action again is not
sufficient to satisfy the test. See Trulock v. City of Duncanville, 277 S.W.3d 920,
924 (Tex. App.—Dallas 2009, no pet.) (citing Murphy, 455 U.S. at 482).
The Texas Supreme Court recently applied the “capable of repetition yet
evading review” doctrine in Matthews v. Kountze Independent School District, 484
S.W.3d 416 (Tex. 2016). In Matthews, middle school and high school cheerleaders,
through their parents, sued the Kountze Independent School District (the District)
after the District prohibited the cheerleaders from displaying banners displaying
religious messages at school-sponsored events. Id. at 417. The District filed a plea
to the jurisdiction based on governmental immunity and lack of standing, and later
supplemented the plea alleging the claim was moot after the District adopted
Resolution and Order No. 3. The Resolution and Order No. 3 provided that the
District is “not required to prohibit messages on school banners . . . that display
fleeting expressions of community sentiment solely because the source or origin of
such message is religious,” but the District “retains the right to restrict the content
of the school banners.” Id. The trial court denied the District’s plea, and the
District filed an interlocutory appeal. Id.
Without addressing the governmental immunity or standing issues, this
Court held that the cheerleaders’ claims for declaratory and injunctive relief were
29
moot because the District voluntarily discontinued its prohibition on the display of
banners containing religious messages at school-sponsored events. See generally
Kountze Indep. Sch. Dist. v. Matthews, 482 S.W.3d 120 (Tex. App.—Beaumont
2014).
On petition for review to the Texas Supreme Court, the Court noted that
“The District contends that the cheerleaders are only challenging a discrete action
by the District—the District’s September 18, 2012, announcement that ‘student
groups [are not allowed] to display any religious signs or messages at school
sponsored events.’” 484 S.W.3d at 418. In granting the cheerleaders’ petition for
review and reversing the Ninth Court of Appeals decision, the Court determined
that, even if the cheerleaders’ claims were limited to the District’s discrete action
on September 18, 2012, the case was not moot. Id. at 418-20. The Court noted that
the District’s voluntary discontinuation of the prohibition on the cheerleaders from
displaying religious signs or messages on banners at school-sponsored events
“hardly makes ‘absolutely clear’ that the District will not reverse itself after this
litigation is concluded,’” and that “the District has never expressed the position
that it could not, and unconditionally would not,” reinstate the prohibition. Id. at
418-19. The Court concluded that “Resolution and Order No. 3 only states the
District is not required to prohibit the cheerleaders from displaying such banners,
30
and reserves to the District unfettered discretion in regulating those banners—
including the apparent authority to do so based on their religious content.” Id. at
420. According to the Court, the case is not moot because the District’s voluntary
abandonment provides “no assurance that the District will not prohibit the
cheerleaders from displaying banners with religious signs or messages at school-
sponsored events in the future.” Id. at 419-20; see also Texas Health Care Info.
Council v. Seton Health Plan, Inc., 94 S.W.3d 841 (Tex. App.—Austin 2002, pet.
denied) (State’s voluntary abandonment of attempts to collect the complained-of
penalty did not render the controversy moot nor deprive the trial court of
jurisdiction).
Unlike Matthews, in the present case, First Amendment rights are not
implicated and the complaining party (KCS) is not asserting that the proposed
charter amendment would violate the Texas or Federal Constitution. Additionally,
this case does not involve a voluntary cessation of challenged conduct by the
Defendants, and the complaining party here (KCS) is a specific purpose political
action committee formed solely to oppose the charter amendment set for the May
2014 election and there is a constitutional limitation on how often the City can
place a charter amendment on the ballot. See Tex. Const. art. XI, § 5(a). The
election deadline had already passed at the time of trial, and by law no additional
31
charter amendment could have been submitted for two years. See id. And, KCS as
a specific purpose committee failed to demonstrate how there is a reasonable
expectation that it will be subjected to the same action again. See, Trulock, 277
S.W.3d at 929. Therefore, we conclude that an exception to the mootness doctrine
does not apply and the trial court erred in concluding that the matter was not moot.
Additionally, even assuming that the matter in the case at bar was not moot,
we further conclude that the matter failed to present a justiciable question that was
ripe for review by the trial court. “It is well settled that separation of powers and
the judiciary’s deference to the legislative branch require that judicial power not be
invoked to interfere with the elective process.” Blum, 997 S.W.2d at 263. We reject
KCS’s argument that because it is challenging the existence of the initiative power
and not the substance of the election measure the separation of powers doctrine
does not apply and the trial court had subject matter jurisdiction.
The trial court lacked subject matter jurisdiction to issue a permanent
injunction that enjoined the City from “conducting an election on the Petition
pursuant to the First Ordinance or Proposition 4 of the Second Ordinance.” See
Blum, 997 S.W.2d at 263-64 (a party had no right to enjoin a scheduled election,
but could seek to enjoin the City from using misleading language on a ballot when
it could be judicially resolved in time for the election); Coalson, 610 S.W.2d at 747
32
(a pre-election declaratory judgment was prematurely filed and the election results
determine whether there is a justiciable issue); Couchman, 249 S.W. at 239; HP
Pinnell, 207 S.W.3d at 419. Being lawfully clothed with legislative power, the
City should be allowed to exercise that power and to the dictates of its legislative
judgment, regardless of whether or not any particular enactment may be valid or
invalid. Couchman, 249 S.W. at 240.
Additionally, the trial court lacked subject matter jurisdiction over KCS’s
request for declaratory relief. A court should not “declare rights on facts which
have not arisen or adjudicate matters which are contingent, uncertain, or rest in the
future.” Brinkley v. Tex. Lottery Comm’n, 986 S.W.2d 764, 768 (Tex. App.—
Austin 1999, no pet.) (citing 26 C.J.S. Declaratory Judgments, § 28 (1956)). The
declaratory judgment act does not enlarge a trial court’s jurisdiction but is ‘“merely
a procedural device for deciding cases already within a court’s jurisdiction.’” Tex.
Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011) (quoting
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)).
33
We sustain Appellants’ issue on appeal, dissolve the permanent injunction,
reverse the judgment of the trial court, and we dismiss the case. See City of
Garland v. Louton, 691 S.W.2d 603, 605 (Tex. 1985).8
REVERSED AND DISMISSED.
_________________________
LEANNE JOHNSON
Justice
Submitted on September 24, 2015
Opinion Delivered July 28, 2016
Before McKeithen, C.J., Kreger and Johnson, JJ.
8
Were we to address the merits of the claim, we also note that KCS failed to
establish and the findings of the trial court fail to identify an independent wrongful
act, injury, exigent circumstance, or harm to KCS that would be sufficient to show
irreparable harm which is a necessary element for a permanent injunction. The
mere physical or theoretical possibility that the complaining party may be
subjected to the same action again is not sufficient to establish irreparable harm.
See HP Pinnell, 207 S.W.3d at 419. As a matter of law, the mere passage of an
ordinance does not by itself establish irreparable harm. Id. Although, KCS alleged
in its pleadings in the Lawsuit that it would be “irreparably harmed” should the
ordinance be placed on the ballot, there appears to be no evidence in the record
from the trial regarding the alleged irreparable harm.
34