oral argument requested no. 05-16-00573-cv in the...
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ORAL ARGUMENT REQUESTED
No. 05-16-00573-CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS __________________________________________________________________ CITY OF PLANO, TEXAS; LISA HENDERSON, IN HER OFFICIAL CAPACITY AS CITY SECRETARY; HARRY LAROSILIERE, IN HIS OFFICIAL CAPACITY AS MAYOR; ANGELA MINER, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; BEN HARRIS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RICK GRADY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; LISSA SMITH, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RON KELLEY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; TOM HARRISON, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; AND DAVID DOWNS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL
Appellants vs. ELIZABETH CARRUTH; MATTHEW TIETZ; JANIS NASSERI; JUDITH
KENDLER AND STEPHEN PALMA
Appellees __________________________________________________________________
BRIEF OF APPELLANTS __________________________________________________________________
ORAL ARGUMENT REQUESTED
ANDY TAYLOR State Bar No. 19727600 ANDY TAYLOR & ASSOCIATES, P.C. 2668 Highway 36S, #288 Brenham, Texas 77833 713-222-1817 (telephone) 713-222-1855 (facsimile) [email protected] ROBERT J. DAVIS State Bar No. 05543500
MATTHEWS, SHIELS, KNOTT, EDEN, DAVIS & BEANLAND, L.L.P. 8131 LBJ Freeway, Suite 700 Dallas, Texas 75251 972/234-3400 (office) 972/234-1750 (telecopier) [email protected] TIMOTHY A. DUNN Assistant City Attorney State Bar No. 24050542 CITY OF PLANO, TEXAS P.O. Box 860358 Plano, Texas 75086-0358 Telephone: (972) 941-7125 Facsimile: (972) 424-0099 Email: [email protected]
ATTORNEYS FOR APPELLANTS
BRIEF OF APPELLANT CITY OF PLANO PAGE i
IDENTITY OF PARTIES AND COUNSEL Pursuant to Tex. R. App. P. 38.1(a), the Appellants certify that the following
is a complete list of the interested parties in this matter, as well as their attorneys,
so that the members of this Court may determine disqualification or recusal:
CITY OF PLANO, TEXAS Appellant
LISA HENDERSON, IN HER OFFICIAL CAPACITY AS CITY SECRETARY
Appellant
HARRY LAROSILIERE, IN HIS OFFICIAL CAPACITY AS MAYOR
Appellant
ANGELA MINER, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL
Appellant
BEN HARRIS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL
Appellant
RICK GRADY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL
Appellant
LISSA SMITH, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL
Appellant
RON KELLEY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL
Appellant
TOM HARRISON, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL
Appellant
DAVID DOWNS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL
Appellant
ELIZABETH CARRUTH
Appellee
BRIEF OF APPELLANT CITY OF PLANO PAGE ii
MATTHEW TIETZ Appellee
JANIS NASSERI Appellee
JUDITH KENDLER Appellee
STEPHEN PALMA Appellee
ANDY TAYLOR State Bar No. 19727600 ANDY TAYLOR & ASSOCIATES, P.C. 2668 Highway 36S, #288 Brenham, Texas 77899 Telephone: (713) 222-1817 Facsimile: (713) 2221855 [email protected]
Counsel for Appellants
ROBERT J. DAVIS State Bar No. 05543500 MATTHEWS, SHIELS, KNOTT, EDEN, DAVIS & BEANLAND, L.L.P. 8131 LBJ Freeway, Suite 700 Dallas, Texas 75251 Telephone: (972) 234-3400 Facsimile: (972) 234-1750 [email protected]
Counsel for Appellants
TIMOTHY A. DUNN Assistant City Attorney State Bar No. 24050542 CITY OF PLANO, TEXAS P.O. Box 860358 Plano, Texas 75086-0358 Telephone: (972) 941-7125 Facsimile: (972) 424-0099 [email protected]
Counsel for Appellants
BRIEF OF APPELLANT CITY OF PLANO PAGE iii
JACK TERNAN State Bar No. 24060707 TERNAN LAW FIRM, PLLC 1400 Preston Road, Suite 400 Plano, Texas 75093 Telephone: (972) 665-9939 Facsimile: (972) 476-1361 [email protected]
Counsel for Appellees
BRIEF OF APPELLANT CITY OF PLANO PAGE iv
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................... i
TABLE OF CONTENTS .................................................................................. iv
INDEX OF AUTHORITIES ............................................................................. viii
STATEMENT OF THE CASE ......................................................................... xiii
REQUESET FOR ORAL ARGUMENT .......................................................... xiv
STATEMENT OF THE ISSUES PRESENTED .............................................. xv
STATEMENT OF THE FACTS ...................................................................... 2
SUMMARY OF THE ARGUMENT ............................................................... 10
ARGUMENTS AND AUTHORITIES ............................................................ 12
A. Analysis of the City’s Plea to the Jurisdiction and De NovoStandard of Review ........................................................................... 12
Issue One................................................................................................. 14
B. Whether the Trial Court Erred in Not Granting the CitySecretary and City Council’s Plea to the JurisdictionBecause Their Immunity from Suit has NotBeen Waived for the Asserted Mandamus Claims............................ 14
1. Texas State Law has Long Imposed Limitations on theMunicipal Use of the Initiative and Referendum Process ............ 15
2. Zoning is Exempt from the Initiative and ReferendumProcess .......................................................................................... 20
a. Zoning Has Been Held to be Exempt fromInitiative and Referendum ....................................................... 20
BRIEF OF APPELLANT CITY OF PLANO PAGE v
b. The Legislature’s Amendment of Chapter 211 of the Local Government Code, Providing a Limited Statutory Right to Referendum, Did Not Alter the General Exclusion of Zoning from the Initiative and Referendum Process ......................................... 25
3. Initiative and Referendum Do No Apply to a
Long-Range Comprehensive Plan such as the PTP ..................... 26 a. Since the Inception of Zoning, Texas has Required
Zoning be in Accordance with a Comprehensive Plan ........... 26
b. Zoning Ordinance Not in Accordance with a Comprehensive Plan are Invalid ............................................. 29
c. The Adoption or Amendment of Both a Zoning
Ordinance and a Comprehensive Plan Requires Compliance with a Mandatory Procedural Process ................ 30
d. Because the City’s Comprehensive Plan is a
Part of, and Inextricable from, Zoning, It is Not Subject to Initiative and Referendum...................................... 31
e. Alternatively, Even if Technically Separate from
Zoning, the Adoption of a Comprehensive Plan Requires Preliminary Actions such as the Holding of Hearings and the Use of Experts and Technical Data, Similar to the Adoption of Zoning, and Therefore has Been “Withdrawn From the Field” of Initiative and Referendum .................................................. 34
BRIEF OF APPELLANT CITY OF PLANO PAGE vi
4. Because a Comprehensive Plan is Not Properly Subject to Referendum, the City Secretary and City Council are Immune from Appellees’ Mandamus Action Because Appellees Have Failed to Plead that the Violated a Ministerial Duty .................................................... 38
5. No Pleading Amendment Will Cure Appellees’ Jurisdictional Defects .......................................................................................... 44
Issue Two ................................................................................................ 45
C. The Trial Court Erred in Not Granting the City’s Plea to the Jurisdiction With Regard to the Appellees’ Declaratory Judgment Claims Asserted Against It ............................................... 45 1. The City is Immune From Plaintiffs’ Claims for Declaratory
Relief, Which Seek to Construe or Interpret a Statute ................. 45
2. Alternatively, Appellees Lack Standing to Seek Declaratory Relief From the City ..................................................................... 48
3. No Pleading Amendment Will Cure Appellees’ Jurisdictional
Defects .......................................................................................... 50
4. Alternatively, Appellees’ Declaatory Judgment Claims Against the City Necessarily Fail Because the PTP Is Not Subject to Referendum Petition.................................................... 51
Issue Three .............................................................................................. 51
D. The Trial Court Erred by Failing to Grant the City and the City Council’s Plea to the Jurisdiction in that the Only Ripe Claim Pleaded by Appellants is Their Mandamus Claim Against the City Secretary ................................................................. 51
PRAYER ........................................................................................................... 55
BRIEF OF APPELLANT CITY OF PLANO PAGE vii
CERTIFICATE OF SERVICE ......................................................................... 57
CERTIFICATE OF COMPLIANCE ................................................................ 58
BRIEF OF APPELLANT CITY OF PLANO PAGE viii
INDEX OF AUTHORITIES
Cases Pages Alejos v. State, 433 S.W.3d 112 (Tex. App.—Austin 2014, no pet.) ............... 49 Avery v. LPP Mortgage, Ltd, 01-14-01007-CV, 2015 WL 6550774 (Tex. App.—Houston [1st Dist.] Oct. 29, 2015, no pet.) ................................. 4, 32 Bernard v. City of Bedford, 593 S.W.2d 809 (Tex. Civ. App.—Fort Worth 1980, writ ref’d n.r.e.) ....................................... 27 Bland Independent School Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) ............. 13, 49 Bolton v. Sparks 362 S.W.2d 946 (Tex. 1962) ................................................. 22 Brennan v. City of Willow Park, 376 S.W.3d 910 (Tex. App.—Fort Worth 2012, pet. denied) ..................................................... 14 City of Canyon v. Fehr, 121 S.W.3d 899 (Tex. App.—Amarillo 2003, no pet.) ............................................................... 25 City of Dallas v. Texas Ezpawn, L.P., 05-12-01269-CV, 2013 WL 1320513 (Tex. App.—Dallas Apr. 1, 2013, no pet.) .................. 46, 48 City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ......................... 13, 39, 47 City of El Paso v. Hernandez, 16 S.W.3d 409 (Tex. App.—El Paso 2000, pet. denied) ........................................................... 13 City of McKinney v. Hank’s Rest. Group, L.P., 412 S.W.3d 102 (Tex. App.—Dallas 2013, no pet.) .................................................................... 46, 48 City of Paris v. Abbott, 360 S.W.3d 567 (Tex. App.—Texarkana 2011, pet. denied) ...................................................... 3 City of Pharr v. Tippitt, 616 S.W.2d 173 (Tex. 1981) ...................................... 28, 29
BRIEF OF APPELLANT CITY OF PLANO PAGE ix
City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003) ................. 17 City of San Antonio v. Hunt, 458 S.W.2d 952 (Tex. Civ. App.—San Antonio 1970) (Cadena, J., dissenting), rev’d 462 S.W.2d 536 (Tex. 1971) ........................................................................................................ 27 Coalson v. City Council of Victoria, 610 S.W.2d 744 (Tex. 1980) .................. 38, 40 Coffee City v. Thompson, 535 S.W.2d 758 (Tex. Civ. App.—Tyler 1976, writ ref’d n.r.e.) ........................................................................................... 29, 31, 33 Dallas Area Rapid Transit. v. Whitley, 104 S.W.3d 540 (Tex. 2003) .............. 13 Dallas Ry. Co. v. Geller, 271 S.W. 1106 (Tex. 1925) ...................................... 18 Denman v. Quin, 116 S.W.2d 783 (Tex. Civ. App.—San Antonio 1938, writ ref’d) .............................................................................. 18, 21, 25, 37, 40 Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566 (Tex. 2013) ..................... 49 Glass v. Smith, 244 S.W.2d 645 (Tex. 1951) .................................................. passim Hampton v. Univ. of Texas--M.D. Anderson Cancer Ctr., 6 S.W.3d 627 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ........................................ 13 Hancock v. Rouse, 437 S.W.2d 1 (Tex. Civ. App.—Houston [1st Dist.] 1969, writ ref'd n.r.e.) ...................................................................................... passim Harris County Mun. Util. Dist. No. 156 v. United Somerset Corp., 274 S.W.3d 133 (Tex. App.—Houston [1st Dist.] 2008, no pet.) .............. 52, 53-54 In re Arnold, 443 S.W.3d 269 (Tex. App.—Corpus Christi 2014, orig. proceeding) ............................................................................................. passim In re Griffith, 485 S.W.3d 529 (Tex. App.—Houston [14th Dist.] 2015, no pet.) .................................................................................................... 12 In re Roof, 130 S.W.3d 414 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ............................................................................................................... 39, 40
BRIEF OF APPELLANT CITY OF PLANO PAGE x
In re Ryan, 13-08-00179-CV, 2008 WL 1822442 (Tex. App.—Corpus Christi April 18, 2013, original proceeding) ..................................................... 41 Kessling v. Friendswood Indep. Sch. Dist., 302 S.W.3d 373 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) ...................................... 49 Lazarides v. Farris, 367 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012, no pet.) .................................................................................................... 52 Machete’s Chop Shop, Inc. v. Texas Film Commission, 483 S.W.3d 272 (Tex. App.—Austin 2016, no pet.) ............................................................ 12, 38 Mayhew v. Town of Sunnyvale, 774 S.W.2d 284 (Tex. App.—Dallas 1989, writ denied) .......................................................... passim McCutcheon v. Wozencraft, 116 Tex. 440, 294 S.W. 1105 (Tex. 1927) ........................................................................................................ 17 Miller v. South East Texas Regional Planning Com’n, 03-111-00817-CV, 2013 WL 3724716 (Tex. App.—Austin, July 11, 2013, no pet.) ..................... 13, 38 Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439 (Tex. 1998) .................................................................................... 52 Robinson v. Parker, 353 S.W.3d 753 (Tex. 2011) ..................................... 52, 53, 54 San Pedro N., Ltd. v. City of San Antonio, 562 S.W.2d 260 (Tex. Civ. App.—San Antonio 1978, writ ref'd n.r.e.) ................................... passim Southwestern Telegraph & Telephone Co. v. City of Dallas, 104 Tex. 114, 134 S.W. 321 (Tex. 1911) ......................................................... 17, 18 Taxpayers’ Ass’n of Harris County v. City of Houston, 129 Tex. 627 (1937) ................................................................................................................ 15 Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) .................................................................................................. 13, 48, 50
BRIEF OF APPELLANT CITY OF PLANO PAGE xi
Tex. Dept. Of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) .................................................................................................. 13, 44, 51 Tex. Music Library & Research Ctr. v. Tex. Dep’t of Transp., 13-13-00600-CV, 2014 WL 3802992 (Tex. App.—Corpus Christi Jul. 31, 2014, pet. denied) ................................................................................. 14, 43 Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) .................. 44, 50 Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993) .................................................................................................. 13, 48, 50 Texas Department of Transportation v. Jones, 8 S.W.3d 636 (Tex. 1999) ........................................................................................................ 13 Texas Dept. of Transportation v. Sefzik, 355 S.W.3d 618 (Tex. 2011) ........................................................................................................ 46 Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692 (Tex. 2003) ............. 14 Statutes and Constitutions Pages Acts of 1927, 40th Leg., R.S., ch. 283, § 3, Tex. Rev. Civ. Stat. Ann. Arts. 1011a—1011j ......................................................................... 26 City of Plano City Charter § 7.02 .............................................................. 3, 5, 6, 7 City of Plano City Charter § 7.03 ...................................................... 3, 6, 47, 53, 54 City of Plano Zoning Ordinance ....................................................................... 4, 32 Tex. Civ. Prac. & Rem. Code § 37.004 ............................................................ 46 Tex. Civ. Prac. & Rem. Code § 37.006 ............................................................ 46, 47 TEX. CONST. art. V, § 8 ..................................................................................... 14 Tex. Local Gov’t Code § 211.003 .................................................................... 27
BRIEF OF APPELLANT CITY OF PLANO PAGE xii
Tex. Local Gov’t Code § 211.004 ............................................................. 26, 34, 35 Tex. Local Gov’t Code § 211.006 .................................................................... 30, 31 Tex. Local Gov’t Code § 211.007 .................................................................... 31 Tex. Local Gov’t Code §211.015 ..................................................................... 25 Tex. Local Gov’t Code § 213.001 .................................................................... 4 Tex. Local Gov’t Code § 213.002 .............................................................. 4, 28, 35 Tex. Local Gov’t Code § 213.003 ....................................................... 30, 31, 35, 36 Tex. R. Evid. 204 .............................................................................................. 6, 7 Other Sources Pages Charles M. Haar, In Accordance with a Comprehensive Plan, 68 HARV. L. REV. 1154 (1955) ......................................................................... 27 JOHN MIXON ET AL., TEXAS MUNICIPAL ZONING LAW (3d ed. 2015) ............... 26, 27
BRIEF OF APPELLANT CITY OF PLANO PAGE xiii
STATEMENT OF THE CASE
Appellees’ suit seeks declaratory relief against the City of Plano and
mandamus relief against its City Secretary and the members of its City Council,
each sued only in their official capacities. (C.R. 92-105).1 After answering the
petition, Appellants filed a Plea to the Jurisdiction challenging the trial court’s
jurisdiction over the asserted claims. (C.R. 89, 246, 261). After hearing oral
arguments, the trial court orally denied the Appellants’ Plea to the Jurisdiction
from the bench and memorialized same by order dated May 16, 2016. (C.R. 8,
369). On that same day, Appellants perfected their accelerated interlocutory appeal
pursuant to Tex. Civ. Prac. & Rem. Code §51.014(8). (C.R. 370).
1 Citations to the Clerk’s Record will be denoted “C.R.”
BRIEF OF APPELLANT CITY OF PLANO PAGE xiv
REQUEST FOR ORAL ARGUMENT
Appellants request oral argument herein because they believe it would
materially aid in the disposition of this appeal.
BRIEF OF APPELLANT CITY OF PLANO PAGE xv
STATEMENT OF THE ISSUES PRESENTED
Issue One: Whether the trial court erred by denying the City Secretary and City Council’s Plea to the Jurisdiction as to Appellees’ claims seeking mandamus relief against them?
Issue Two: Whether the trial court erred by denying the City’s Plea to the
Jurisdiction as to Appellees’ claims which sought declaratory judgment against it?
Issue Three: Whether the trial court erred by denying the City and City
Council’s Plea to the Jurisdiction due to the fact that Appellees’ only ripe claim is their mandamus claim against the City Secretary?
BRIEF OF APPELLANT CITY OF PLANO PAGE 1
No. 05-16-00573-CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS __________________________________________________________________ CITY OF PLANO, TEXAS; LISA HENDERSON, IN HER OFFICIAL CAPACITY AS CITY SECRETARY; HARRY LAROSILIERE, IN HIS OFFICIAL CAPACITY AS MAYOR; ANGELA MINER, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; BEN HARRIS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RICK GRADY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; LISSA SMITH, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RON KELLEY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; TOM HARRISON, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; AND DAVID DOWNS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL
Appellants vs. ELIZABETH CARRUTH; MATTHEW TIETZ; JANIS NASSERI; JUDITH
KENDLER AND STEPHEN PALMA
Appellees __________________________________________________________________
BRIEF OF APPELLANTS __________________________________________________________________
BRIEF OF APPELLANT CITY OF PLANO PAGE 2
TO THE HONORABLE FIFTH COURT OF APPEALS:
COME NOW the City of Plano, Texas (“City”); Lisa Henderson, in her
official capacity as City Secretary (the “City Secretary”); Harry LaRosiliere, in his
official capacity as Mayor; Angela Miner, in her official capacity as member of the
City Council; Ben Harris, in his official capacity as member of the City Council;
Rick Grady, in his official capacity as member of the City Council; Lissa Smith, in
her official capacity as member of the City Council; Ron Kelley, in his official
capacity as member of the City Council; Tom Harrison, in his official capacity as
member of the City Council; and David Downs, in his official capacity as member of
the City Council (all members collectively the “City Council”) (all Appellants
collectively “Appellants”), the Appellants herein and the Defendants in the trial
court below, and file this their Brief, and in support thereof would show:
STATEMENT OF THE FACTS
Appellees have brought the instant lawsuit against the City and its City
Secretary and the members of its City Council, all in their official capacities, seeking
mandamus and declaratory relief relating to a citizen-petition (the “Petition”)
submitted by Appellees which sought to compel the City Council to reconsider its
enactment of an ordinance adopting a long-range comprehensive development plan
BRIEF OF APPELLANT CITY OF PLANO PAGE 3
(the “Ordinance”) and, if it did not repeal same, submit the Ordinance to popular
vote. See generally (C.R. 92-105).
Stated more thoroughly, Appellees concede that the City is a home-rule
municipal corporation organized under the laws of the State of Texas. (C.R. 95 (¶ 8),
98 (¶ 29)). The City’s home rule charter (“Charter”) contains provisions which
provide for the enactment or repeal of legislation via initiative and referendum by
the citizens of the City. (C.R. 98 (¶ 29)); see also City of Plano City Charter §§ 7.02,
7.03, available at
https://www2.municode.com/library/tx/plano/codes/code_of_ordinances.1
According to Appellees, in 1963 the City first adopted a formal
comprehensive plan for long-range development. (C.R. 97 (¶ 23)). In 1986 it
adopted its second comprehensive plan, which was subsequently amended but, as a
whole, constituted the Amended 1986 Comprehensive Plan. (C.R. 97 (¶ 23)).
Approximately thirty (30) years later, the City prepared a new comprehensive plan,
which was adopted by Ordinance 2015-10-9 (the “Ordinance”). (C.R. 97-98 (¶¶
26-27)), 108-167). The Ordinance repealed the Amended 1986 Comprehensive Plan
and adopted the “Plano Tomorrow Comprehensive Plan” (PTP). (C.R. 98 (¶ 27), 109
(§ IV)). Attached to the Ordinance were certain documents pertinent to the PTP, but 1 Courts have taken judicial notice of municipal codes published on the municode code repository website. See City of Paris v. Abbott, 360 S.W.3d 567, 573 n.6 (Tex. App.—Texarkana 2011, pet. denied).
BRIEF OF APPELLANT CITY OF PLANO PAGE 4
these were only “the strategic framework of the plan” consisting of “vision
statements, policies, action statements, and maps” rather than the PTP in its entirety.
(C.R. 109 (§ II)).
The PTP was passed pursuant to Texas Local Government Code § 213.001,
which governs the adoption by municipalities of long-range comprehensive plans.
(C.R. 108 (recital 3)). The PTP serves as a guideline that establishes a general plan
for the long-range development of the City. (C.R. 108 (recital 4)). It addresses
matters such as land use, transportation, housing, building efficiency, environmental
quality, and the City’s economic environment. (C.R. 110); see Tex. Local Gov’t
Code § 213.002(b)(1). The City’s Zoning Ordinance itself references in numerous
places the comprehensive plan and requires compliance with the comprehensive
plan in order to be in compliance under the Zoning Ordinance. See City of Plano
Zoning Ordinance, available at
https://www.plano.gov/DocumentCenter/View/12755 (last accessed July 3, 2016);2
(C.R. 274, 309-11). The PTP was adopted only after receiving over 20,000
comments and ideas from over 4,000 individuals and over 40 organizations, which
input was received via surveys, open houses, public workshops and public hearings
over a 26-month period. (C.R. 108 (recital 5), 304-07). Moreover, the City’s 2 Information from government websites is self-authenticating and the Court may take judicial notice of same. Avery v. LPP Mortgage, Ltd, 01-14-01007-CV, 2015 WL 6550774, at *3 (Tex. App.—Houston [1st Dist.] Oct. 29, 2015, no pet.).
BRIEF OF APPELLANT CITY OF PLANO PAGE 5
Planning and Zoning Commission served as the PTP advisory committee and
conducted twenty-two (22) work sessions with 50 hours of discussion, which
resulted in an initial plan followed by two additional draft plans, each of which was
revised based upon public comments. (C.R. 108 (recital 6), 304-07). The Planning
and Zoning Commission also held public hearings on the PTP on March 2, 2015,
April 20, 2015, and September 21, 2015. (C.R. 108 (recital 7), 304-07). In any event,
the City’s Planning and Zoning Commission ultimately recommended approval of
the PTP. (C.R. 108). On October 12, 2015, the City Council held a public hearing
regarding the PTP and subsequently adopted same by passing the Ordinance. (C.R.
108 (recitals 8, 9), 109). Further, as noted, the adoption of the Ordinance resulted in
the express repeal of the Amended 1986 Comprehensive Plan. (C.R. 109 (§ IV)).
After the adoption of the Ordinance, citizens began an effort to collect
signatures on a petition requesting a referendum on the Ordinance. (C.R. 99 (¶ 31)).
In this regard, the City’s Charter provides that
Qualified voters of the City of Plano may require that any ordinance or resolution, with the exception of ordinances or resolutions levying taxes, passed by the city council be submitted to the voters of the city for approval or disapproval by submitting a petition for this purpose within thirty (30) days after final passage of said ordinance or resolution, or within thirty (30) days after its publication. Said petition shall be addressed, prepared, signed and verified as required for petitions initiating legislation as provided in section 7.02 of this charter and shall be submitted to the person performing the duties of city secretary. Immediately upon the filing of such petition, the person performing the duties of city secretary shall present said petition to the
BRIEF OF APPELLANT CITY OF PLANO PAGE 6
city council. Thereupon the city council shall immediately reconsider such ordinance or resolution and if it does not entirely repeal the same, shall submit it to popular vote as provided in section 7.02 of this charter. Pending the holding of such election such ordinance or resolution shall be suspended from taking effect and shall not later take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof.
Charter § 7.03, available at
https://www2.municode.com/library/tx/plano/codes/code_of_ordinances; Tex. R.
Evid. 204; see also (C.R. 98 (¶ 29)) (quoting Charter). The referenced section 7.02
provides that
Qualified voters of the City of Plano may initiate legislation by submitting a petition addressed to the city council which requests the submission of a proposed ordinance or resolution to a vote of the qualified voters of the city. Said petition must be signed by qualified voters of the city equal in number to twenty (20) percent of the number of votes cast at the last regular municipal election of the city, or one hundred fifty (150), whichever is greater, and each copy of the petition shall have attached to it a copy of the proposed legislation. The petition shall be signed in the same manner as recall petitions are signed, as provided in section 6.02 of this charter, and shall be verified by oath in the manner and form provided for recall petitions in section 6.03 of this charter. The petition may consist of one (1) or more copies as permitted for recall petitions in section 6.04 of this charter. Such petition shall be filed with the person performing the duties of city secretary. Within five (5) days after the filing of such petition, the person performing the duties of city secretary shall present said petition and proposed ordinance or resolution to the city council. Upon presentation to it of the petition and draft of the proposed ordinance or resolution, it shall become the duty of the city council, within ten (10) days after receipt thereof, to pass and adopt such ordinance or resolution without alteration as to meaning or effect in the opinion of the persons filing the
BRIEF OF APPELLANT CITY OF PLANO PAGE 7
petition, or to call a Special Election in accordance with the Election Code.3
Charter § 7.02, available at
https://www2.municode.com/library/tx/plano/codes/code_of_ordinances; Tex. R.
Evid. 204.
Appellees assert that the number of petition signatures needed to compel
action by the City Council under the Charter was 1,860 and that a petition addressed,
prepared, signed, and verified as required by the Charter and containing over 4,000
signatures (the “Petition”) was submitted to the City Secretary on November 10,
2015. (C.R. 99 (¶ 31)). On November 23, 2015, the City Council met to discuss the
Petition. (C.R. 100 (¶ 33)). According to Appellees, upon the advice of counsel that
the Ordinance at issue was not subject to referendum power, no action was taken by
the City Council. (C.R. 100 (¶ 33)).
Appellees assert that the City Council’s failure to act was improper and that
the Charter requires the City Secretary to present the Petition to the City Council,
who then must reconsider the Ordinance and, in the absence of its being repealed,
3 The signing, form and submission of the Petition, governed by the referenced sections 6.02, 6.03 and 6.04 of the Charter, are not at issue herein.
BRIEF OF APPELLANT CITY OF PLANO PAGE 8
submit it to a popular vote. (C.R. 99 (¶ 30)). Based upon those assertions, Appellees,
in their Petition, seek the issuance of writs of mandamus compelling4
the City Secretary to present the Petition to the City Council within fourteen (14) days; and
the members of the City’s city council to (1) reconsider the Ordinance and (2) submit the Ordinance to a popular vote in the event that they do not vote to repeal it.
(C.R. 104-05) (Part VIII). Further, Appellees seek a declaratory judgment against
the City declaring that
unless and until a majority of the voters approve the Ordinance in a referendum, the Ordinance has been suspended from taking effect and is invalid;
unless and until a majority of the voters approve the Ordinance in a referendum, the comprehensive plan adopted by the ordinance is not the City’s long-range comprehensive plan; and
unless and until a majority of the voters approve the Ordinance in a
referendum, the City’s prior comprehensive plan, enacted in 1986, is its current long-range comprehensive plan.
(C.R. 105).
In any event, Appellees filed their Original Petition in the case at bar on
February 1, 2016. (C.R. 9). Appellants filed their Original Answer on March 4,
4 Appellees’ Original Petition was largely unclear with regard to what relief was being sought from which defendants, and Appellants’ Plea to the Jurisdiction dealt with many of these issues wherein relief was improperly sought from certain parties. However, Appellees’ First Amended Petition provides clarity that, in fact, they seek mandamus relief only from the City Secretary and the City Council, rather than from the City, and that they seek declaratory relief only from the City, rather than from the City Secretary or the City Council. (C.R. 104-05).
BRIEF OF APPELLANT CITY OF PLANO PAGE 9
2016. (C.R. 89). Appellees filed a First Amended Petition on Friday, April 29, 2016,
their live pleading, which clarified the parties from which certain relief was sought, a
matter which was ambiguous in Appellees’ Original Petition. (C.R. 9-23, 92-106).
On Monday, May 2, 2016, Appellants filed a First Amended Answer in which they
specifically asserted their entitlement to immunity from suit. (C.R. 246, 247). That
same day, they also filed their Plea to the Jurisdiction, an amended version of which
was filed on May 3, 2016 correcting certain non-substantive errors.5 (C.R. 261). In
pertinent part, Appellants asserted in their Plea to the Jurisdiction that
(1) Appellees had not stated a mandamus claim within the limited waiver of immunity of the City Secretary and the City Council, all in their official capacities, as no failure to perform a ministerial act had been pleaded by Appellees because a comprehensive plan is not subject to a referendum petition;
(2) Appellees had not stated a declaratory judgment claim within the City’s limited waiver of immunity; and
(3) Alternatively, the only claim asserted by Appellees which was ripe was their mandamus claim against the City Secretary.
(C.R. 261-302). Appellees filed their response to Appellants’ Plea to the Jurisdiction
on May 12, 2016. (C.R. 314). In turn, Appellants filed their Reply to Plaintiffs’
Response to their Plea to the Jurisdiction on May 13, 2016. (C.R. 348).
5 Appellants’ Plea to the Jurisdiction was filed based upon Appellees’ Original Petition and, as a result, while the substantive immunity arguments remain, many of the arguments asserted therein which related to the proper parties are not pertinent to this appeal. Much of this was clarified in Appellants’ Reply brief. See (C.R. 348-50).
BRIEF OF APPELLANT CITY OF PLANO PAGE 10
Appellants’ Plea to the Jurisdiction was set for hearing on May 16, 2016.
(C.R. 312). After listening to the arguments of the parties, the trial court orally
denied Appellants’ Plea to the Jurisdiction from the bench and memorialized same
by written order that same day. (C.R. 8, 369). Thereafter that same day, Appellants
filed their Notice of Interlocutory Appeal. (C.R. 370). The Clerk’s Record was filed
with this Court on May 26, 2016, and the Reporter’s Record on June 13, 2016.
SUMMARY OF THE ARGUMENT
The trial court erred by denying Appellants’ Plea to the Jurisdiction. With
regard to the Plea to the Jurisdiction filed by the City Secretary and the City Council,
all sued only in their individual capacities, Appellees have failed to plead and prove
that any of these officials failed to perform a ministerial duty which would subject
them to mandamus relief. Specifically, Appellees’ assertion that the submission of
the Petition triggered a duty for the City Secretary to present the Petition to the City
Council and for the City Council to take some action, as provided by the Charter, is
incorrect due to the fact that the Ordinance in question, which Appellees sought to
subject to referendum, adopted a comprehensive plan in accordance with Chapter
213 of the Local Government Code, which subject matter has been withdrawn from
the field of citizen initiative and referendum power. Because no ministerial duty was
BRIEF OF APPELLANT CITY OF PLANO PAGE 11
violated by the City Secretary or City Council, their immunity from suit has not been
waived and their Plea to the Jurisdiction should have been granted.
Further, the trial court erred by denying the City’s Plea to the Jurisdiction. In
this regard, Appellees’ claims for declaratory relief do not seek declaratory
judgment that the Ordinance is invalid but, rather, seek an interpretation of the
City’s ordinances in the event that the Petition falls within the scope of citizen
initiative and referendum power. Because the City’s immunity from suit has not
been waived from such claims its Plea to the Jurisdiction should have been granted.
Further, and in the alternative, Appellees lack standing to seek a declaratory
judgment against the City seeking a general interpretation of the application of the
City’s ordinances, and its Plea to the Jurisdiction should have similarly been granted
on this ground.
Finally, and further in the alternative, the only claim asserted by Appellees
which is even ripe for this Court’s review is Appellees’ claim for mandamus relief
against the City Secretary. All of Appellees’ other claims rely upon the occurrence
of future events which may, but may not, occur in the event the Petition is presented
to the City Council for review. Since the City Council, upon such presentation, could
make a legislative decision to repeal the Ordinance, Appellees claims presupposing
that they will not do so are not ripe.
BRIEF OF APPELLANT CITY OF PLANO PAGE 12
ARGUMENT AND AUTHORITIES
A. ANALYSIS OF THE CITY’S PLEA TO THE JURISDICTION AND DE NOVO STANDARD OF REVIEW
Appellants’ accelerated appeal of the trial court’s denial of its Plea to the
Jurisdiction is grounded upon statute. Specifically, Tex. Civ. Prac. & Rem. Code §
51.014(a)(8) expressly provides that such an appeal may be taken from an
interlocutory order which “denies a plea to the jurisdiction by a governmental
unit[.]” This statutory right to interlocutory appeal extends to suits against
government officials sued in their official capacities where the issue on appeal is
whether their actions were ultra vires or were, rather, actions for which the official
enjoys governmental immunity. 6 In re Griffith, 485 S.W.3d 529, 533 (Tex.
App.—Houston [14th Dist.] 2015, no pet.). A failure to plead that an existing
ministerial duty was violated deprives the court of jurisdiction over a purported ultra
vires claim. See Machete’s Chop Shop, Inc. v. Texas Film Commission, 483 S.W.3d
272, 284 (Tex. App.—Austin 2016, no pet.) (affirming grant of plea to the
jurisdiction where the “live petition does not allege acts . . . that were beyond its
statutory authority nor does it complain of a state official's failure to perform a
ministerial act”); Miller v. South East Texas Regional Planning Com’n,
6 To satisfy the ultra vires exception to governmental immunity, a plaintiff “must not complain of a government officer’s exercise of discretion, but rather must allege . . . that the officer acted without legal authority or failed to perform a purely ministerial act.” City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
BRIEF OF APPELLANT CITY OF PLANO PAGE 13
03-111-00817-CV, 2013 WL 3724716, at *5 (Tex. App.—Austin, July 11, 2013, no
pet.) (affirming grant of jurisdictional plea where plaintiff failed to plead facts
supporting a finding that defendant failed to perform a ministerial duty). Further, the
trial court’s denial of the Appellants’ Plea to the Jurisdiction is reviewed by this
Court under a de novo standard of review. Tex. Dept. Of Parks and Wildlife v.
Miranda, 133 S.W.3d 217, 225 (Tex. 2004); Dallas Area Rapid Transit. v. Whitley,
104 S.W.3d 540, 542 (Tex. 2003).
In any event, it is well established that governmental immunity from suit
defeats a trial court’s subject matter jurisdiction. Texas Department of
Transportation v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999). The purpose of a plea
to the jurisdiction is to defeat a cause of action based on lack of jurisdiction, without
regard to whether the claim has merit. Bland Independent School Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdiction is never presumed.
Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993).
In fact, it is the Appellees’ burden to plead and prove a waiver of the Appellants’
immunity from suit. City of El Paso v. Hernandez, 16 S.W.3d 409, 414 (Tex.
App.—El Paso 2000, pet. denied); see also Hampton v. Univ. of Texas--M.D.
Anderson Cancer Ctr., 6 S.W.3d 627, 629 (Tex. App.—Houston [1st Dist.] 1999, no
pet.) (it is the plaintiff's burden to allege and prove facts affirmatively showing trial
court has subject matter jurisdiction). Further, when determining whether there has
BRIEF OF APPELLANT CITY OF PLANO PAGE 14
been a clear and unambiguous waiver of immunity from suit, the trial court is to
resolve any ambiguity in favor of retaining immunity. Wichita Falls State Hospital
v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003).
Issue One: Whether the trial court erred by denying the City Secretary and City Council’s Plea to the Jurisdiction as to Appellees’ claims seeking mandamus relief against them?
B. THE TRIAL COURT ERRED BY DENYING THE CITY
SECRETARY AND CITY COUNCIL’S PLEA TO THE JURISDICTION BECAUSE THEIR IMMUNITY FROM SUIT HAS NOT BEEN WAIVED FOR THE ASSERTED MANDAMUS CLAIMS
The trial court erred by not granting the City Secretary and the City Council’s
Plea to the Jurisdiction because their immunity from suit has not been waived for the
mandamus actions brought by Appellees.7 In this regard, the Texas Constitution
empowers the district courts of this state "to issue writs of mandamus to compel
public officials to perform ministerial acts." Brennan v. City of Willow Park, 376
S.W.3d 910, 926-27 (Tex. App.—Fort Worth 2012, pet. denied) (citing TEX.
CONST. art. V, § 8). However, where a viable claim for a writ of mandamus has not
been stated against a public official, the official retains his immunity from suit. Tex.
Music Library & Research Ctr. v. Tex. Dep’t of Transp., 13-13-00600-CV, 2014
WL 3802992, at *16 (Tex. App.—Corpus Christi Jul. 31, 2014, pet. denied).
7 As noted supra, Appellees now seek only mandamus relief against the City Secretary and City Council, all sued only in their official capacities. See supra at note 5; (C.R. 92, 104-05).
BRIEF OF APPELLANT CITY OF PLANO PAGE 15
Appellees claim that the City Secretary and City Council failed to present and
consider, respectively, the referendum Petition which was submitted by they and
other citizens of the City. (C.R. 103-05). However, while the City’s Charter does
provide for an initiative and referendum procedure, superseding State law precludes
the use of initiative and referendum petitions in circumstances such as the enactment
of a long-range comprehensive development plan. As a result, as detailed below,
because they did not fail to perform a ministerial duty, the trial court erred by
denying the City Secretary and City Council’s Plea to the Jurisdiction, and the
mandamus claims against them should be dismissed for lack of subject matter
jurisdiction.
1. Texas State Law Has Long Imposed Limitations on the Municipal Use of the Initiative and Referendum Process
Texas courts recognize the existence of referendum power when said power
has been reserved through a municipal charter’s provisions. This power has been
described as “a power reserved to [the people], and not the exercise of a right
granted.” Taxpayers’ Ass’n of Harris County v. City of Houston, 129 Tex. 627, 632
(1937). Accordingly, this power is liberally construed in favor of the power
reserved. Glass v. Smith, 244 S.W.2d 645, 649 (Tex. 1951); Taxpayers’ Ass’n of
Harris County, 129 Tex. at 632. However, in Glass the Texas Supreme Court made
it clear that the broad construction of the initiative and referendum power has its
BRIEF OF APPELLANT CITY OF PLANO PAGE 16
clear limits. Glass, 244 S.W.3d at 649. Indeed, even in Glass, where the Supreme
Court found the passage of a civil service classification ordinance was within the
permissible scope of electoral legislation, the court drew lines and emphasized that
the availability of the initiative and referendum processes “is not unlimited.” Id. at
649. This power “is first limited by the very nature of the proceeding.” Id. at 649.
Moreover, limits exist even where the municipal charter itself does not contain a
limit on the initiative or referendum power of the citizens, and these superseding
state limits have been read into municipal charters by the courts. Id. at 649.
The Glass court recognized two circumstances where limits exist which
preclude the citizens of a municipality from utilizing the initiative and referendum
process: (1) where the Texas Legislature has “expressly conferred [a delegated
legislative power] upon the municipal governing body exclusively,”8 and (2) where
“there was some preliminary duty such as the holding of hearings, etc., impossible of
performance by the people in an initiative proceeding, by statute or charter made a
prerequisite to the exercise of the legislative power.” Glass, 244 S.W.2d at 653. The
Glass court reached this conclusion by analyzing the existing law of this State,
which remains pertinent to the case at bar.
8 Glass further notes that where the “general law . . . confer[s] on the city council exclusively the authority to pass ordinances dealing with the subject matter of th[e] ordinance . . . it follows that by necessary implication the subject matter of the ordinances has been withdrawn from the field in which the initiatory process is operative.” Glass, 244 S.W.2d at 650.
BRIEF OF APPELLANT CITY OF PLANO PAGE 17
For example, in McCutcheon v. Wozencraft, 116 Tex. 440, 294 S.W. 1105
(Tex. 1927), a private bus company sought a referendum on a franchise for its use of
the streets. The court held that there was a specific statutory scheme that governed
the circumstances under which a franchise could be submitted to the citizenry for a
vote, and that this statutory mandate trumped any general municipal charter
provision permitting initiative and referendum. Id. at 443-45.
In Southwestern Telegraph & Telephone Co. v. City of Dallas, 104 Tex. 114,
134 S.W. 321 (Tex. 1911), the voters acted by initiative ordinance to limit the rates
for telephone service. The court invalidated that act by the electorate based on
municipal charter provisions that required public hearings to set rates for such
services. Id. at 119, 121. The Court observed:
In the exercise of the power to regulate and fix rates, etc., there must be a body who can hear evidence and decide upon the reasonableness or unreasonableness of the rate or regulation, and if that cannot be done by the initiative-the popular vote-then, the authority cannot be exercised in that manner. Can it be necessary to offer argument to show to any man that such hearing as the law provides could not be had in a campaign before the electorate of the city? It is too manifest for controversy. Can it be supposed that a Legislature 9 would require a board of commissioners to secure a fair hearing to the party to be affected, and yet would permit some unknown party to draft an ordinance, specifying rates and regulations, without the knowledge of any facts, and submit such ordinance to the popular vote where there can neither be an
9 Southwestern Telegraph & Telephone Co. dates from a time prior to the enactment of the Home Rule Amendment, which altered the longstanding practice of having special charters individually granted and amended by the Legislature for the State’s larger cities. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 26 n.5 (Tex. 2003).
BRIEF OF APPELLANT CITY OF PLANO PAGE 18
investigation nor any character of ascertainment of the facts? That would be to place upon the language of the charter an unreasonable construction. If the charter provided for the submission of such issues to the voters at large, its validity would, at least, be questionable.
* * * * *
Th[e] charter secured to the plaintiff in error ‘a fair hearing,’ and, as such hearing was not and could not be had in the adoption of this ordinance [by initiative], it was not enacted in accordance with the charter and is void.
Southwestern Telegraph & Telephone Co., 104 Tex. at 121.
In Dallas Ry. Co. v. Geller, 271 S.W. 1106 (Tex. 1925), the court applied the
rule from Southwestern Telephone again, finding that setting rates is incompatible
with an election because it was a subject which “is at least impracticable, if not
impossible, for the public at large, the voters, to pass on. They cannot have or digest
the information, data, and facts necessarily incident and essential to the forming of a
correct, accurate, and fair judgment upon the subject.” Id. at 1107.
This focus on data and information was again addressed in Denman v. Quin,
116 S.W.2d 783 (Tex. Civ. App.—San Antonio 1938, writ ref’d), where the court
addressed the right of the voters to set aside the city budget and tax rate by
referendum. The court rejected that right under charter provisions that were
otherwise unlimited. In pertinent part, the Court focused on the complexity of the
matter involved and observed—directly analogous to the complex comprehensive
plan that Appellees seek to cast aside—that
BRIEF OF APPELLANT CITY OF PLANO PAGE 19
It seems to be perfectly obvious, too, that ordinances which must rest upon minute investigation of facts and figures, or application of expert, skilled, or technical knowledge, or upon audits, or upon close and careful study or ascertainment or adjustment of masses of facts and figures, such as the elements entering into matters of rate making, cannot be efficiently initiated or passed upon by the public en masse, however intelligent and patriotic they may be. * * * * * It must now be presumed that the board correctly ascertained the city’s obligations and the cost of servicing them, and correctly estimated the expense of maintenance of the city’s government and affairs during the fiscal year in question. That being true, there remained only the administrative duty of calculating the approximate amount of money required to meet those burdens, and fixing a tax levy sufficient to raise that amount. That was the object and effect of the ordinance under attack here. That ordinance, which plaintiffs would have subjected to a referendum, and by that process passed upon by some 30,000 or more voters, consists of seventy-five paragraphs, each covering an item to be taken into consideration, in connection with all the others, in determining the rate of the tax to be levied, in order to raise the amount, previously ascertained, to support the government. Nearly every one of those items is an integral part of the whole of a complicated structure, every part of which must be consistent with and weighed against every other part. Obviously, the ordinance was not subject to the referendum invoked by plaintiffs in this case.
Id. at 786-87 (emphasis added). From Appellees’ live pleading it is clear that the
PTP is far more voluminous than the 75-paragraph 1938 Dallas City budget
ordinance. (C.R. 108-167).10
10 As noted supra, the document attached to the Ordinance was not the PTP in its entirety, but only its “strategic framework[.]” (C.R. 109 (§ II)).
BRIEF OF APPELLANT CITY OF PLANO PAGE 20
2. Zoning Is Exempt from the Initiative and Referendum Process a. Zoning Has Been Held to Be Exempt from Initiative and Referendum
In accordance with the aforementioned principles excluding certain subject
matters from the initiative and referendum power of citizens, Texas courts have
made clear that zoning may not be the subject of a referendum election but is, as
Glass termed it, a field where “the subject matter of the ordinance has been
withdrawn from the field in which the initiatory process is operative.” Glass, 244
S.W.2d at 650. The justifications for this holding have been both the procedural
prerequisites of notice and hearing required by statute for a zoning ordinance to be
enacted as well as the nature of the enactment of a zoning ordinance itself, which
requires large amounts of data and the analysis of experts.
Specifically, Texas courts have repeatedly held that zoning ordinances are not
subject to repeal by referendum vote. In Hancock v. Rouse, 437 S.W.2d 1 (Tex.
Civ. App.—Houston [1st Dist.] 1969, writ ref'd n.r.e.), the court was asked to review
the district court’s denial of a request for a writ of mandamus seeking the submission
of a zoning ordinance to initiative and referendum elections. Focusing both on the
existence of mandatory procedural prerequisites as well as the underlying study and
information required when addressing the topic of zoning, the appellate court held:
[t]hese general laws, which have been incorporated by reference into the Charter of the City of Bellaire, contemplate that comprehensive zoning ordinances, and ordinances having the purpose of changing,
BRIEF OF APPELLANT CITY OF PLANO PAGE 21
amending, or repealing such ordinances, will be enacted by the local legislative body, i.e., the City Council. This is clear from the requirement that this action must be preceded by a study made by the Zoning Commission after public hearings resulting in recommendations to the Council by the Commission, and by a public hearing before the City Council. While the City Council may authorize a joint public hearing, both the Zoning Commission and the City Council must give those interested the opportunity to attend a hearing. While the report of the Zoning Commission is advisory, the Council must await that report before taking final action. The preparation of a comprehensive Zoning Ordinance, which would meet the objectives set out in the statute, requires careful study, the accumulation of masses of detailed information concerning land use within the city, and is a matter concerning which the professional advice of one experienced in city planning would be most helpful. It would be very difficult to present the information necessary to evaluate a proposed Zoning Ordinance to the voters is an intelligible manner
Hancock 437 S.W.2d at 3-4 (emphasis added) (citing Denman, 116 S.W.2d 783).
The decision in Hancock cites and applies each of the cases set out in the Supreme
Court’s opinion in the Glass case and applies them correctly to reach its result. No
court of appeals case has subsequently held otherwise.
Nine years after Hancock, the same issue arose in San Pedro N., Ltd. v. City of
San Antonio, 562 S.W.2d 260 (Tex. Civ. App.—San Antonio 1978, writ ref'd n.r.e.).
The procedural context was a little different, as Hancock involved a mandamus suit
seeking to require an election but in San Pedro the San Antonio City Council had
already submitted the zoning ordinance amendment to the voters for a referendum,
and the vote was to repeal. Id. at 261. The San Pedro trial court had upheld the
council’s action by declaratory judgment, but the appellate court reversed and
BRIEF OF APPELLANT CITY OF PLANO PAGE 22
concluded that the property owner’s requested zoning change, previously approved
by the city council, could not be taken away by the voters via referendum. Id. at 261.
The court held that the election outcome was invalid because zoning ordinances
were not subject to the initiative and referendum provisions of the city's charter,
despite the fact that the city’s charter did not contain language excluding zoning
ordinances from its scope. Id. at 261-62. In so reasoning, the court first cited the
decision in Hancock and further relied upon Bolton v. Sparks 362 S.W.2d 946, 950
(Tex. 1962), which held that the statutory processes of notice and hearing for zoning
ordinances, which are intended for the protection of property owners, are
mandatory. San Pedro, 562 S.W.2d at 262. The San Pedro court noted that Bolton
held that compliance with the mandatory provisions of the statutes is essential to the
exercise of jurisdiction by municipal governing bodies and each act must be
performed, concluding that “[a] city can no more add a step to the procedures
required by state law than it can omit one.” Id. Moreover, the San Pedro court went
on to note additional rationales for its conclusion including, similar to the court in
Denman, the need for “continuity and expertise in zoning,” which rationales
justified the exclusion of zoning from referendum power separate and apart from the
statutory requirements of notice and hearing. Id.
The Hancock and San Pedro courts’ rationales that the need for expertise in
the area of zoning justified its withdrawal from the field of initiative and referendum
BRIEF OF APPELLANT CITY OF PLANO PAGE 23
was further discussed in In re Arnold, 443 S.W.3d 269, 277 (Tex. App.—Corpus
Christi 2014, orig. proceeding). In Arnold, the court discussed issues raised by the
relator therein which mirror those raised by Appellees in the case at bar:
Relators have also briefed and asserted significant policy reasons why the initiative and referenda process should apply and have invited us to depart from the determinations of the other courts that have considered this issue. For instance, relators contend that older law prohibiting referenda on zoning decisions was based on the reasoning that the notice and hearing provisions in statutes governing zoning determinations were inconsistent with referendum procedures, which typically did not provide for notice and hearing, so the Legislature had implicitly removed zoning decisions from the scope of initiative or referendum. See, e.g., San Pedro N., Ltd., 562 S.W.2d at 262; Hancock, 437 S.W.2d at 4. Relators thus contend that this argument has no application in this case because a referendum under the City Charter can only result after public notice and hearings. According to relators, “[r]eferendum would merely allow another layer of oversight and popular involvement in zoning changes, without eliminating any procedures, including procedures providing for citizen involvement [ ] that are required by zoning statutes.” We agree with relators that the instant case does not present concerns regarding the failure to provide notice and public hearing, however, the cases prohibiting the use of initiative and referenda are supported by other rationales. For instance, the court in San Pedro N., Ltd. also noted that its conclusion that zoning ordinances are not subject to the initiative and referendum process was based on the necessity for continuity and expertise in zoning, rather than on the statutory requirements for notice and hearing. See San Pedro N., Ltd., 562 S.W.2d at 262. Further, as stated by the Houston Court of Appeals:
The preparation of a comprehensive Zoning Ordinance, which would meet the objectives set out in the statute, requires careful study, the accumulation of masses of detailed information concerning land use within the city, and is a matter concerning which the professional advice
BRIEF OF APPELLANT CITY OF PLANO PAGE 24
of one experienced in city planning would be most helpful. It would be very difficult to present the information necessary to evaluate a proposed Zoning Ordinance to the voters in an intelligible manner.
Hancock, 437 S.W.2d at 4. In re Arnold, 443 S.W.3d at 277. As such, not only do statutory procedural requirements, which cannot be
satisfied in the initiative and referendum process, serve to remove a subject matter
from the scope of initiative and referendum, but the nature of the subject matter
requiring study, the accumulation and use of mass amounts of data, the need for
technical expertise, and the complex interconnectedness of the subject matter also
serve to withdraw a subject from the field of initiative and referendum. Glass, 244
S.W.2d at 653 (subject withdrawn from field where “there was some preliminary
duty such as the holding of hearings, etc., impossible of performance by the people
in an initiative proceeding, by statute or charter made a prerequisite to the exercise
of the legislative power”); In re Arnold, 443 S.W.3d at 277 (even where procedural
concerns are not present, necessity of continuity and expertise in zoning justifies
withdrawal of zoning ordinances from field of referendum); San Pedro, 562 S.W.2d
at 262 (complexity and mandatory statutory prerequisites supported statue’s
removal from referendum power); Hancock, 437 S.W.2d at 3-4 (zoning ordinance
not subject to referendum where it required complex study, masses of data, and
BRIEF OF APPELLANT CITY OF PLANO PAGE 25
professional advice, as well as statutory procedural prerequisites); Denman, 116
S.W.2d at 786-87 (ordinances resting on expert knowledge, requiring study or
ascertainment of masses of facts, and complexly interconnected are not subject to
referendum despite the good intentions of the public).
b. The Legislature’s Amendment of Chapter 211 of the Local Government Code, Providing a Limited Statutory Right to Referendum, Did Not Alter the General Exclusion of Zoning from the Initiative and Referendum Process
In 1993, the Legislature amended chapter 211 of the Texas Local Government
Code, adding § 211.015 thereto, which provides that voters of a home-rule
municipality may utilize a referendum process authorized by the municipality with
regard to the “initial adoption of zoning regulations by a municipality[.]” Tex. Local
Gov’t Code § 211.015(a)(2) (emphasis added). While this is a limited statutory
change from the Glass/Hancock/San Pedro rule which would ordinarily preclude
referendum of a zoning ordinance, the limited statutory exception permitting
referendum only applies to a municipality’s initial adoption of the zoning ordinance.
It is not otherwise applicable. Indeed, this limited change to the rule espoused by
Hancock and San Pedro has been confirmed by the courts. See In re Arnold, 443
S.W.3d 269, 274-78 (Tex. App.—Corpus Christi 2014, orig. proceeding); City of
Canyon v. Fehr, 121 S.W.3d 899 (Tex. App.—Amarillo 2003, no pet.). As the
Arnold court held,
BRIEF OF APPELLANT CITY OF PLANO PAGE 26
We agree with the Amarillo Court of Appeals [in Fehr] that the amendments to the local government code do not allow the initiative and referenda process to apply to individual zoning amendments; thus, we reject relators' invitation to conclude otherwise. The statute allows the use of the referendum process for voters to repeal a city's zoning regulations in their entirety or to determine whether the city should initially adopt zoning regulations, but does not allow it for the amendment of individual zoning determinations.
In re Arnold, 443 S.W.3d at 277.
3. Initiative and Referendum Do Not Apply to a Long-Range Comprehensive Plan Such as the PTP
a. Since the Inception of Zoning, Texas has Required Zoning be in
Accordance with a Comprehensive Plan Since the adoption of enabling legislation granting zoning authority to
municipalities, which in this State occurred in 1927, zoning regulations have been
required to be made “in accordance with a comprehensive plan[.]” Acts of 1927,
40th Leg., R.S., ch. 283, § 3, Tex. Rev. Civ. Stat. Ann. Arts. 1011a—1011j (current
version at Tex. Local Gov’t Code §211.004(a)); Mayhew v. Town of Sunnyvale, 774
S.W.2d 284, 294 (Tex. App.—Dallas 1989, writ denied); Hancock, 437 S.W.2d at 3.
The Texas Zoning Enabling Act was, as is the case with most states, modeled on the
Standard State Zoning Enabling Act (SZEA) developed by the Commerce
Department. JOHN MIXON ET AL., TEXAS MUNICIPAL ZONING LAW § 1.100 (3d ed.
2015). As a leading commentator on the matter has noted, the requirement that
zoning be in accordance with a comprehensive plan “appear[s] to be a directive to
BRIEF OF APPELLANT CITY OF PLANO PAGE 27
put zoning on a base broader than and beyond itself, and a warning that an ordinance
not ‘in accordance with a comprehensive plan’ is ultra vires the enabling act.”
Charles M. Haar, In Accordance with a Comprehensive Plan, 68 HARV. L. REV.
1154, 1156 (1955). As noted in the vindicated dissenting opinion in City of San
Antonio v. Hunt, “[n]o zoning regulation . . . whatever its relation to the public
health, welfare, morals and safety, is authorized by the enabling act unless it is in
accordance with the comprehensive plan.” 458 S.W.2d 952, 956 (Tex. Civ.
App.—San Antonio 1970) (Cadena, J., dissenting), rev’d 462 S.W.2d 536 (Tex.
1971).
The zoning enabling act contemplates that zoning is the second part of a
two-step process, the first step being planning. MIXON, TEXAS MUNICIPAL ZONING
LAW at § 1.300. While zoning permits a municipality to regulate things such as (1)
the height, number of stories, and size of buildings and other structures; (2) the
percentage of a lot that may be occupied; and (3) the size of yard, courts, and other
open spaces; “[t]he purpose for the requirement of [a comprehensive plan] is to
make sure that city councils have some plan or design in mind when they pass
zoning ordinances.” Bernard v. City of Bedford, 593 S.W.2d 809, 812 (Tex. Civ.
App.—Fort Worth 1980, writ ref’d n.r.e.); see Tex. Local Gov’t Code § 211.003(a).
There is no requirement that a municipality adopt a single comprehensive ordinance
constituting a comprehensive plan. Bernard, 593 S.W.2d at 812. But where a
BRIEF OF APPELLANT CITY OF PLANO PAGE 28
municipality has not officially adopted a comprehensive plan, its zoning ordinances
themselves must be found to be comprehensive, coherent and logical such that the
zoning ordinances themselves constitute such a plan. Mayhew, 774 S.W.2d at 294.
On the other hand, where a municipality has formally adopted a comprehensive plan
the law is settled that the adopted comprehensive plan must, by statutory mandate, serve as the basis for subsequent zoning amendments:
A comprehensive zoning ordinance is law that binds the municipal legislative body itself. The legislative body does not, on each rezoning hearing, redetermine as an original matter, the city’s policy of comprehensive planning. The law demands that the approved zoning plan should be respected . . . . The duty to obey the existing law forbids municipal actions that disregard not only the pre-established zoning ordinance but also the long-rang master plans and maps that have been adopted by ordinance.
Id. at 294-95 (quoting City of Pharr v. Tippitt, 616 S.W.2d 173, 176-77 (Tex. 1981))
(emphasis in Mayhew). After Meyhew, the Legislature enacted chapter 213 of the
Local Government Code to facilitate the formal adoption of municipal
comprehensive plans for long-range development, which may address issues such as
land use, transportation and public facilities, and be used to guide the establishment
of development regulations. Tex. Local Gov’t Code §213.002(b).
BRIEF OF APPELLANT CITY OF PLANO PAGE 29
b. Zoning Ordinances Not in Accordance with a Comprehensive Plan are Invalid
Where a zoning ordinance does not satisfy the requirement that it be in
conformance with a comprehensive plan, either in its entirety or by amendment, it is
invalid, even where no formal comprehensive plan has been adopted. See Hunt v.
City of San Antonio, 462 S.W.2d 536, 540 (Tex. 1971) (reversing court of appeals
and holding that proposed rezoning of lots which would “cause the comprehensive
plan to collapse like the fall of a row of dominoes when the first in the row is
knocked over” was invalid); Coffee City v. Thompson, 535 S.W.2d 758, 767 (Tex.
Civ. App.—Tyler 1976, writ ref’d n.r.e.) (affirming trial court’s holding that entire
zoning ordinance was invalid where, inter alia, town’s property was zoned based
upon the requests of the individual owners, which did not show an attempt to
regulate in accordance with a comprehensive plan). As a result, the failure to
consider the comprehensive plan, even if not formally adopted, when enacting
site-specific zoning or rezoning is considered illegal "spot-zoning." City of Pharr v.
Tippitt, 616 S.W.2d 173, 177 (Tex. 1981).
Moreover, where a comprehensive plan has been formally adopted, a zoning
ordinance passed in violation of this comprehensive plan is necessarily invalid.
Mayhew, 774 S.W.2d at 294-95. In this regard, in Mayhew this Court addressed a
circumstance similar to that in the case at bar, where the municipality had a formally
BRIEF OF APPELLANT CITY OF PLANO PAGE 30
adopted comprehensive plan and the municipality’s zoning ordinance expressly
provided that it was made in accordance with the comprehensive plan. Id. at 294; see
(C.R. 309-11). Where a zoning amendment was passed which was contrary to the
enacted comprehensive plan, this Court held that the zoning ordinance violated the
Texas Zoning Enabling Act.11 Id. at 295.
c. The Adoption or Amendment of Both a Zoning Ordinance and a Comprehensive Plan Requires Compliance with a Mandatory Procedural Process
When adopting the requirements for a formally adopted comprehensive plan,
the Legislature established mandatory procedural requirements just as it had done in
the adoption of a zoning ordinance. Compare Tex. Local Gov’t Code § 213.003 with
Tex. Local Gov’t Code § 211.006. In this regard, just as does § 211.006, § 213.003
provides for certain mandatory procedures required by the State which must be
followed before a comprehensive plan may be adopted or amended by ordinance,
specifically (1) a public hearing, and (2) review by the city’s planning commission.
Tex. Local Gov’t Code § 213.003(a). This mirrors the requirements contained in §
211.006(a), which similarly requires a public hearing prior to a modification of
zoning boundaries.12 Tex. Local Gov’t Code § 211.006(a). Moreover, with regard to
11 The Court subsequently held that plaintiff lacked a cause of action based upon the violation of the zoning enabling act due to the Legislature’s enactment of a subsequent validation statute. Mayhew, 774 S.W.2d at 296. No similar issue is presented here. 12 Obviously, chapter 211 does require the mailing of certain notices to property owners when
BRIEF OF APPELLANT CITY OF PLANO PAGE 31
zoning, Chapter 211 requires review of zoning decisions by a home-rule city’s (such
as the City) zoning commission. Tex. Local Gov’t Code §§ 211.006, 211.007. In
exactly the same way, the adoption or amendment of a comprehensive plan is
required to be reviewed by the City’s planning commission or department.13 Tex.
Local Gov’t Code § 213.003(a)(2). As noted supra, these processes were, in fact,
followed in this case. (C.R. 108 (recitals 5-9), 304-07).
d. Because the City’s Comprehensive Plan is a Part of, and Inextricable from, Zoning, It is Not Subject to Initiative and Referendum
As noted, both the Texas Zoning Enabling Act and the SZEA have, since their
inception, required zoning to be in accordance with a comprehensive plan. See supra
at Part B(3)(a). Whether this comprehensive plan is formally enacted by a
municipality or not, it is a fatal defect for a zoning ordinance to be enacted contrary
to the provisions of such a plan. Hunt, 462 S.W.2d at 540; Mayhew, 774 S.W.2d at
294-95; Thompson, 535 S.W.2d at 767. Accordingly, formally adopted
comprehensive plans, including the City’s, are commonly specifically referenced
and incorporated into the enacted zoning ordinances. (C.R. 309-11); Mayhew, 774
S.W.2d at 294.
considering the rezoning of certain property. See Tex. Local Gov’t Code § 211.006(a). This is entirely reasonable when a single piece of property is being considered for rezoning, and the same concerns about a specific locale are not raised when adopting a city-wide comprehensive plan. 13 The City, like the vast majority of cities in Texas, has established a Planning and Zoning Commission, which addresses both planning and zoning issues.
BRIEF OF APPELLANT CITY OF PLANO PAGE 32
As noted in Appellants’ Plea to the Jurisdiction, in at least thirteen (13)
instances the City’s Zoning Ordinance specifically relies upon information
contained in the City’s comprehensive plan (i.e., the PTP) for zoning determinations
to be made. (C.R. 309-11); see City of Plano Zoning Ordinance, available at
https://www.plano.gov/DocumentCenter/View/12755 (last accessed July 3, 2016).14
Thus, were the Petition sufficient to permit a referendum on the PTP, resulting in its
possible repeal, the City’s Zoning Ordinance would be rendered inoperable, as the
required references to the comprehensive plan would be divested of their legislative
purpose. This would result in a de facto referendum on at least a portion of the City’s
Zoning Ordinance, but, as noted supra, it is undisputed that zoning has been
“withdrawn from the field” of initiative and referendum. See supra at Part B(2).
Moreover, were the PTP repealed, the City would be left with no ability to enact
zoning “in accordance with a comprehensive plan” since the City’s Zoning
Ordinance specifically relies on the existence of an adopted comprehensive plan to
itself be operable. (C.R. 304-07). Put simply, the PTP and the City’s Zoning
Ordinance work in conjunction to establish the City’s zoning, and because zoning
must be in conformance with the comprehensive plan, the two are so intertwined that
the comprehensive plan necessarily falls outside of the field of subject matters which
14 Information from government websites is self-authenticating and the Court may take judicial notice of same. Avery v. LPP Mortgage, Ltd, 01-14-01007-CV, 2015 WL 6550774, at *3 (Tex. App.—Houston [1st Dist.] Oct. 29, 2015, no pet.).
BRIEF OF APPELLANT CITY OF PLANO PAGE 33
may be subjected to a public vote by referendum petition.
Moreover, Texas courts have already held that a comprehensive plan is
inextricable from zoning. In this regard, in the absence of a formally adopted
comprehensive plan, the zoning ordinance itself must satisfy the “in accordance
with” requirement of the zoning enabling act by being comprehensive, coherent and
logical, lest the zoning ordinance be held invalid. Mayhew, 774 S.W.2d at 294; see
Hunt, 462 S.W.2d at 540; Thompson, 535 S.W.2d at 767. In such circumstances,
because the zoning ordinance, which is undisputedly withdrawn from initiative and
referendum power, must itself comprise the comprehensive plan, the comprehensive
plan is likewise necessarily withdrawn from the field of such power. That a
municipality has enacted a formal comprehensive plan pursuant to the authority
granted by the Legislature in Chapter 213 does not alter the underlying nature of the
plan as inextricable from zoning. See Mayhew, 774 S.W.2d at 294-95 (“the law is
settled that an adopted comprehensive plan must, by statutory mandate, serve as the
basis for subsequent zoning amendments”). Indeed, so holding would discourage the
adoption of formal long-range planning documents, which are inarguably beneficial
to both municipalities and private parties throughout the State and would be contrary
to the Legislature’s intent when enacting chapter 213.
Ultimately, it is clear that zoning truly is the second step of the two-step
development process. The existence of a comprehensive plan is literally the other
BRIEF OF APPELLANT CITY OF PLANO PAGE 34
side of the same coin upon which zoning sits because, without the comprehensive
plan, zoning could not exist. Tex. Local Gov’t Code § 211.004. As a result, because
the City’s comprehensive plan is inextricable from its zoning ordinances, just as the
adoption of a zoning ordinance would not be subject to a referendum petition,
neither is the enactment of the City’s comprehensive plan.
e. Alternatively, Even if Technically Separate from Zoning, the Adoption of a Comprehensive Plan Requires Preliminary Actions such as the Holding of Hearings and the Use of Experts and Technical Data, Similar to the Adoption of Zoning, and Therefore has Been “Withdrawn From the Field” of Initiative and Referendum
In the alternative, even in the event this Court were to determine that the
enactment of a comprehensive plan is an entirely distinct legislative act which is
sufficiently unique to not be deemed “zoning” under the long-standing caselaw
which removes zoning from the field of initiative and referendum power, the
rationale used by the courts in holding that zoning may not be reviewed by
referendum applies just as strongly when applied to a comprehensive plan enacted
pursuant to Texas Local Government Code chapter 213.
As noted supra, just as the enactment of a zoning regulation requires
adherence to specific, State-mandated procedures, the enactment or amendment of a
comprehensive plan adopted under chapter 213 of the Local Government Code is
required to be given a public hearing at which the public is given the opportunity to
give testimony and present written evidence, as well as be reviewed by the
BRIEF OF APPELLANT CITY OF PLANO PAGE 35
municipality’s planning commission or department, if one exists. Tex. Local Gov’t
Code §213.003; see supra at Part B(3)(c); (C.R. 108, 304-07) (detailing meetings
and input received by the City during the review process prior to the enactment of
the PTP). Moreover, as is the case with zoning, the creation of a comprehensive plan
pursuant to Chapter 213 requires the collection of large amounts of data sufficient to
develop a plan for land use, transportation or public facilities and the establishment
of development regulations.15 Tex. Local Gov’t Code § 213.002(b). Moreover,
expert input is required in the development of the comprehensive plan, as, by
statutory mandate, it must be reviewed by a municipality’s planning commission or
department. Tex. Local Gov’t Code §213.003(b).
In the case at bar it is clear that the City not only complied with the procedural
requirements of Chapter 213, providing more than ample opportunity for the public
to be heard, but also accumulated and relied upon massive amounts of data,
expertise, and professional advice which resulted in the PTP—a complex and
interconnected development plan far exceeding the seventy-five (75) paragraphs
addressed in the Denman case. In this regard, based upon Appellees’ pleadings,
without the need for additional jurisdictional evidence, it is clear that the City
received over 20,000 comments and ideas from over 4,000 individuals and over 40 15 Indeed, as Texas Courts have held that zoning ordinances require such detailed and complex information which requires the input of experts, the development of a comprehensive plan must necessarily also require same since all zoning ordinances must be enacted in accordance with the comprehensive plan. Tex. Local Gov’t Code § 211.004.
BRIEF OF APPELLANT CITY OF PLANO PAGE 36
organizations through surveys, open houses, public workshops, and public hearings
over a 26-month period during the development of the PTP. (C.R. 108). Moreover,
the City’s Planning and Zoning Commission conducted 22 work sessions with 50
hours of discussion and held three (3) public hearings on the PTP on March 2, 2015,
April 20, 2015, and September 21, 2015, all of which were open to all persons
wishing to comment on the PTP. (C.R. 108). Indeed, a listing of meetings and work
sessions was provided with Appellants’ Plea to the Jurisdiction. (C.R. 304-07).
Further, the City’s Planning and Zoning Commission subsequently recommended
approval of the PTP. (C.R. 108). The City Council itself then held a public hearing
on the PTP on October 12, 2015 open to all persons wishing to comment on it prior
to voting to adopt the Ordinance on that same date. (C.R. 108-09).
As a result, the same rationales which exclude zoning from the field of
referendum power compel a finding that the enactment of a comprehensive plan is
similarly excluded from initiative and referendum. Just as with zoning, the statutory
process which results in the enactment of a comprehensive plan contains statutorily
mandated review and hearing prerequisites which must be satisfied and cannot be
reproduced in the initiative or referendum process. Tex. Local Gov’t Code §
213.003; see Glass, 244 S.W.2d at 653. Moreover, the nature of the types of
information compiled by a municipality enacting a comprehensive plan is of the
same complex and technical nature as that of zoning, and the enactment of a
BRIEF OF APPELLANT CITY OF PLANO PAGE 37
comprehensive plan is excluded from the field of referendum on that ground as well.
As a result, well-settled Texas law compels a finding that a comprehensive plan
enacted pursuant to Local Government Code chapter 213 is not subject to a
referendum petition. Glass, 244 S.W.2d at 653 (subject withdrawn from field where
“there was some preliminary duty such as the holding of hearings, etc., impossible of
performance by the people in an initiative proceeding, by statute or charter made a
prerequisite to the exercise of the legislative power”); In re Arnold, 443 S.W.3d at
277 (even where procedural concerns are not present, necessity of continuity and
expertise in zoning justifies withdrawal of zoning ordinances from field of
referendum); San Pedro, 562 S.W.2d at 262 (complexity and mandatory statutory
prerequisites supported statue’s removal from referendum power); Hancock, 437
S.W.2d at 3-4 (zoning ordinance not subject to referendum where it required
complex study, masses of data, and professional advice, as well as statutory
procedural prerequisites); Denman, 116 S.W.2d at 786-87 (ordinances resting on
expert knowledge, requiring study or ascertainment of masses of facts, and
complexly interconnected are not subject to referendum despite the good intentions
of the public).
BRIEF OF APPELLANT CITY OF PLANO PAGE 38
4. Because a Comprehensive Plan is Not Properly Subjected to Referendum, the City Secretary and City Council are Immune from Appellees’ Mandamus Action Because Appellees Have Failed to Plead that they Violated a Ministerial Duty
As noted supra, in order for Appellees to have stated a mandamus claim
within the waiver of immunity possessed by the City Secretary and the City Council,
all in their official capacities, they must plead, and ultimately prove, that these
Appellants failed to perform a purely ministerial act. Heinrich, 284 S.W.3d at 372;
Machete’s Chop Shop, 483 S.W.3d at 284; Miller, 2013 WL 3724716 at *5.
Appellees have previously argued that a ministerial duty to present the Petition to
the City Council, and for the City Council to take action upon the Petition, existed on
the part of the City Secretary and City Council, respectively, even if a referendum on
the PTP is precluded by state law. (C.R. 334-35). In support of this argument,
Appellees have cited Coalson v. City Council of Victoria, 610 S.W.2d 744 (Tex.
1980). However, Coalson does not apply to the case at bar.
The initial facts in Coalson sound familiar: an initiative petition for a charter
amendment was filed with the city with sufficient valid signatures and the council
voted that it would not place the amendment on the ballot based upon the fact it had
been withdrawn from the initiatory process. Id. at 746. However, the basis upon
which the city alleged it had been withdrawn from the initiatory process was because
the city alleged that the proposed charter amendment violated state law, not because
BRIEF OF APPELLANT CITY OF PLANO PAGE 39
the subject-matter itself had been withdrawn from the initiative and referendum
process. Id. at 746; see Glass, 244 S.W.2d at 648 (for a legal right to mandamus
compelling the calling of an election in the field of initiative and referendum to exist,
“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 initiatory process is operative”). This is similar to
the case In re Roof, where an election was ordered on a charter amendment after the
city secretary had refused to certify an initiative petition based upon her belief that
the proposed amendment “conflicts with the city charter, general state law, and the
Texas Constitution.” In re Roof, 130 S.W.3d 414 (Tex. App.—Houston [14th Dist.]
2004, no pet.).
In arguing this position, Appellees have misunderstood why it would be a
violation of law for a referendum to be called on account of the Petition.
Specifically, it is not an analysis of the underlying legislation that forms the basis of
the Appellants’ actions in not presenting the Petition to City Council and/or placing
the Ordinance on the ballot if not repealed. It is without question that, so long as the
subject matter is one not “withdrawn from the field” of initiative and referendum,
Appellants would be required to take the actions provided for in the Charter even if
the resulting law would, in fact, be contrary to state law. To the contrary, in the case
bar the distinction is that here the election itself, rather than the result thereof, would
BRIEF OF APPELLANT CITY OF PLANO PAGE 40
be a violation of law. See San Pedro, 562 S.W.2d 260. In other words, here an
election for a comprehensive plan, just like an election on a zoning ordinance, would
itself be illegal. Indeed, the court in In re Arnold, a case holding that zoning was not
subject to initiative and referendum, recognized this very point:
Relators further contend that the real parties in interest may not decline to hold an election based on a belief that the proposed legislation would violate the law if adopted, and must instead defer to a court ruling regarding the alleged illegality. See, e.g., Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980); In re Roof, 130 S.W.3d 414, 416-17 (Tex. App.—Houston [14th Dist.] 2004, orig. proceeding). However, this doctrine has no application to this case because it concerns the real parties' refusal to hold an election on grounds that the election itself [on zoning], not the proposed legislation, would violate the law.
443 S.W.3d at 274 n.4 (emphasis added). Moreover, the result of what Plaintiffs
assert should occur is exactly what the San Pedro court held was improper, wherein
an election was held on a zoning issue but was subsequently invalidated by the court
of appeals. San Pedro, 562 S.W.2d 260.
Contrary to Appellees’ prior arguments, in such a circumstance, i.e., where a
referendum petition has been submitted on a matter for which state law precludes a
referendum, courts have approved of a city halting the referendum process and
taking no action upon receipt of the petition. Indeed, cases detailing the propriety of
such actions stretch back as far as the Denman case discussed supra. Denman, 116
S.W.2d at 785-86 (affirming denial of mandamus relief where city council received
BRIEF OF APPELLANT CITY OF PLANO PAGE 41
referendum petition on budget and tax ordinance but refused to move referendum
forward). These same actions have been reaffirmed in recent years. For example, in
In re Ryan, a referendum petition was filed with a city, pursuant to its charter,
seeking to require the city to repeal three annexation ordinances or submit them to a
popular vote. 13-08-00179-CV, 2008 WL 1822442, at *1 (Tex. App.—Corpus
Christi April 18, 2013, original proceeding). “Taking the position that annexation
ordinances were not subject to the referendum provision of the City Charter, the City
Council took no action” on the petition. Id. at *1 (emphasis added). The Ryan
plaintiffs filed suit seeking, as in the case at bar, declaratory relief and a writ of
mandamus holding the city’s charter provisions regarding referendum provided (1)
that the ordinances were suspended and (2) that the city was required to repeal the
ordinances or call a popular election on their validity.16 Id. at *1. Denying the writ of
mandamus, the court of appeals held that it
16 Similar to the language at issue in the case at bar, the charter language at issue in Ryan provided that
Qualified voters of the City of El Campo may require that any ordinance or resolution passed by the City Council be submitted to the voters of the city for approval or disapproval, by submitting a petition for this purpose within thirty (30) days after final passage of said ordinance or resolution, or within thirty (30) days after its publication . . . . Thereupon the City Council shall immediately reconsider such ordinance or resolution and; if it does not entirely repeal the same, shall submit it to popular vote as provided in section 6.07 of this Charter. Pending the holding of such election, such ordinance or resolution shall be suspended from taking effect and shall not later take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof.
In re Ryan, 2008 WL 1822442 at *1.
BRIEF OF APPELLANT CITY OF PLANO PAGE 42
[could] []not conclude that the City or the City Council has failed to perform any duty imposed on them by law. The law is clear that annexation ordinances are not subject to the referendum provisions in city charters. Accordingly, the City and City Council were not required to repeal the annexation ordinances or put them to a referendum.
Id. at *3. Accordingly, where the city had taken no action on a referendum petition
which was not subject to the referendum provision of its charter as a result of state
law providing to the contrary, the court did not order it to do so. Id. at *3.
Similarly, in In re Arnold, petitioners sought mandamus to compel “the
Ingleside City Council, City Manager, and City Secretary to comply with the
referendum process as delineated by the Ingleside City Charger regarding the repeal
of four ordinances granting zoning amendments.” 17 443 S.W.3d at 270.
Specifically, in Arnold the referendum petitions presented to the city secretary were
17 Article VI of the Ingleside City Charter contained the relevant procedures for the initiative and referendum process:
A. Initiative: The qualified voters of the City shall have power to propose ordinances to the City Council, and if the City Council fails to adopt an ordinance so proposed without any change in substance, to adopt or reject it at a city election, provided that such power shall not extend to the budget or capital program or any ordinance relating to appropriation of money, levy of taxes or salaries of City officers or employees. Such initiative power may be used to enact a new ordinance, or to repeal or to amend section of an existing ordinance.
B. Referendum: The qualified voters of the City shall have power to require reconsideration by the City Council of any adopted ordinance and, if the City Council fails to repeal an ordinance so reconsidered, to approve or reject it at a City election, provided that such power shall not extend to the budget or capital program or any emergency ordinance relating to appropriation of money or levy of taxes.
In re Arnold, 443 S.W.3d at 272.
BRIEF OF APPELLANT CITY OF PLANO PAGE 43
related to two zoning amendments. Id. at 272. Thereafter, the city council
determined that the referendum process would be halted and the city secretary sent
letters to the petition organizers communicating same. Id. at 272. As a result, at the
time suit was filed the city had not instituted a referendum process for any of the
submitted petitions. Id. at 272. After examining the case, the court denied plaintiffs’
request for mandamus relief. Id. at 272, 278. Specifically, the court held that the writ
should be denied due to the fact that the “relators have not established that
respondents have a ministerial duty under the [chart]er and existing law to apply the
initiative and referendum process” to the ordinances at issue. Id. at 278. Therefore,
as in Ryan, where the submitted petition was outside the scope of municipal
referendum power, the court found that no ministerial duty for either the city
secretary or the city council existed to consider same. Id. at 278.
The same result applies herein. Because a comprehensive plan has been
withdrawn from the field of initiative and referendum, the City Secretary and City
Council acted appropriately by taking no action on the Petition. As a result, because
the Plaintiffs have failed to plead a viable claim that the City Secretary or City
Council failed to perform a required ministerial act, they retain their immunity from
suit, this Court lacks subject matter jurisdiction over the Plaintiffs’ claims against
them, and the trial court erred by denying their Plea to the Jurisdiction. Tex. Music
Library & Research Ctr., 2014 WL 3802992 at *16.
BRIEF OF APPELLANT CITY OF PLANO PAGE 44
5. No Pleading Amendment Will Cure Appellees’ Jurisdictional Defects
It is well settled in this state that a pleader must be given an opportunity to
amend in response to a plea to the jurisdiction only if it is possible to cure the
pleading defect. Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.
2007). In this case, it is clear that Appellees cannot do so. Specifically, as detailed
above, Appellees have not simply failed to allege facts which would bring their
claims within a waiver of the immunity possessed by the City Secretary and the City
Council. To the contrary, the fundamental law upon which Appellees rest their
claims dictates that the City Secretary and City Council did not fail to perform the
ministerial action Appellees allege exists. “Merely pleading more facts in support of
[such a claim] will not overcome [these Appellants’] immunity from suit.” Id. As a
result, because Appellees will not be able to state a viable mandamus claim against
the City Secretary or the City Council, no opportunity to amend need be provided.
Id. (citing Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228
(Tex.2004)).
BRIEF OF APPELLANT CITY OF PLANO PAGE 45
Issue Two: Whether the Trial Court erred by denying the City’s Plea to the Jurisdiction as to Appellees’ claims which sought declaratory judgment against it?
C. THE TRIAL COURT ERRED BY DENYING THE CITY’S PLEA TO
THE JURISIDCTION WITH REGARD TO THE APPELLEES’ DECLARATORY JUDGMENT CLAIMS ASSERTED AGAINST IT
1. The City is Immune From Plaintiffs’ Claims for Declaratory Relief,
Which Seek to Construe or Interpret a Statute
The trial court erred by denying the City’s Plea to the Jurisdiction with
regarding the claims for declaratory relief Appellees have asserted against it. To wit,
as noted supra, Appellees seek declarations that (1) unless and until a majority of the
voters approve the Ordinance in a referendum, the Ordinance has been suspended
from taking effect and is invalid; (2) unless and until a majority of the voters approve
the Ordinance in a referendum, the PTP adopted by the Ordinance is not the City’s
long-range comprehensive plan; and (3) unless and until a majority of the voters
approve the Ordinance in a referendum, the City’s prior comprehensive plan,
enacted in 1986, is its current long-range comprehensive plan. (C.R. 105). However,
contrary to Appellees’ assertions, the City retains its immunity from suit with regard
to such claims.
It is undisputed that the Legislature has expressly waived immunity for
lawsuits challenging the validity of a municipal ordinance. As this Court has noted,
this waiver of immunity is recognized because Tex. Civ. Prac. & Rem. Code §
BRIEF OF APPELLANT CITY OF PLANO PAGE 46
37.006(b) expressly requires joinder of a municipality in actions challenging the
validity of a municipal ordinance. City of Dallas v. Texas Ezpawn, L.P.,
05-12-01269-CV, 2013 WL 1320513, at *2 (Tex. App.—Dallas Apr. 1, 2013, no
pet.); see Heinrich, 284 S.W.3d at 373 n.6. However, as this Court has held, “the
legislature through the UDJA has not clearly and unambiguously waived
governmental immunity for actions in which ‘the plaintiff seeks a declaration of his
or her rights under a statute or other law.’” Texas Ezpawn, 2013 WL 1320513 at *2
(quoting Texas Dept. of Transportation v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011)).
While Appellees’ live pleading cites § 37.004 as authorizing their declaratory
judgment claims against the City, this Court has repeatedly held that the limit to the
waiver of immunity provided for in § 37.006(b) is not affected by §37.004, and the
only waiver of a city’s immunity provided for in the Declaratory Judgments Act is
when a plaintiff challenges the validity of an ordinance. (C.R. 101 (¶ 38)); Tex. Civil
Prac. & Rem Code §37.004; City of McKinney v. Hank’s Rest. Group, L.P., 412
S.W.3d 102, 112 (Tex. App.—Dallas 2013, no pet.); Texas Ezpawn, 2013 WL
1320513 at **2-3. Put plainly, “the Declaratory Judgments Act waives
governmental immunity against claims that a statute or ordinance is invalid. The Act
does not waive immunity against claims seeking a declaration of the claimant’s
statutory rights or an interpretation of an ordinance.” Hank’s Rest. Group, 412
S.W.3d at 112.
BRIEF OF APPELLANT CITY OF PLANO PAGE 47
Appellees, in their live pleading, pay lip-service to the limited waiver of §
37.006(b), asserting, in a conclusory fashion, that “[t]he suit involves the validity of
Ordinance No. 2015-10-19.” (C.R. 96 (¶ 19)). However, Appellees have judicially
admitted that, at least until their Original Petition was filed, the Ordinance was
validly the law in the City of Plano. (C.R. 337) (“Plaintiff [sic] are alleging that the
Ordinance is already suspended and invalid and has been since November 10, 2015
when the Petition was submitted.) (underline in original, italics added).
Additionally, none of Appellees’ remaining allegations, and none of their requested
grounds for declaratory relief, allege, assert or imply that the Ordinance is in any
way invalid or should be invalidated. See generally (C.R. 92-105). Indeed,
Appellees have previously asserted that “the Ordinance is invalid because the
[City’s] Charter provides that the Ordinance is suspended and invalid until approved
by the voters[.]” See, e.g., (C.R. 322). However, the Charter simply does not provide
same and, to the contrary, states the opposite by providing that when an ordinance is
properly subject to referendum, that “[p]ending the holding of such election such
ordinance or resolution shall be suspended from taking effect[.]” (C.R. 98-99)
(reproducing City of Plano Charter Section 7.03) (emphasis added). This is not
language which in any way implies invalidity, but rather language which recognizes
that a valid ordinance may be suspended when a proper referendum petition is
BRIEF OF APPELLANT CITY OF PLANO PAGE 48
presented and the ordinance not “repeal[ed]” by the City Council. Id.
As is plain by their very terms, Appellees’ claims for declaratory relief against
the City are not claims that the Ordinance is invalid but, rather, are claims seeking to
require the Court to interpret the City’s charter and ordinances, from which no
waiver of the City’s immunity from suit exists. Hank’s Restaurant Group, 412
S.W.3d at 112; Texas Ezpawn, 2013 WL 1320513 at *3. As a result, the trial court
erred when it failed to grant the City’s Plea to the Jurisdiction with regard to
Appellees’ declaratory judgment claims asserted against it, the trial court’s ruling
should be reversed, and Appellees’ claims against the City should be dismissed for
lack of subject matter jurisdiction.
2. Alternatively, Appellees Lack Standing to Seek Declaratory Relief From the City
In the alternative, even were this Court to find that Appellees’ suit sought to
contest the validity of the Ordinance, the trial court nevertheless erred by denying
the City’s Plea to the Jurisdiction as to Appellees’ declaratory judgment claims due
to the fact that Appellees lack standing to seek the declaratory relief pleaded for. In
this regard, standing is a component of subject matter jurisdiction. Tex. Ass’n of Bus.
v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A pleader must allege
facts that affirmatively demonstrate the plaintiff’s standing and the court’s
jurisdiction to hear the case. Id. “[I]n order to have standing for a declaratory
BRIEF OF APPELLANT CITY OF PLANO PAGE 49
judgment claim, a member of the public must allege ‘a particularized injury distinct
from that suffered by the general public.’” Kessling v. Friendswood Indep. Sch.
Dist., 302 S.W.3d 373, 386 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)
(quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555-56 (Tex. 2000)).
“[S]tanding requirements serve to maintain the proper separation of governmental
powers both by preventing courts from issuing advisory opinions and, with regard to
challenges to governmental action in particular, by preventing judicial incursions
into abstract or generalized public policy disputes that are properly resolved in the
other branches.” Alejos v. State, 433 S.W.3d 112, 122 (Tex. App.—Austin 2014, no
pet.); see also Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 592 (Tex. 2013)
(Johnson, J., dissenting) (“When a litigant claims a hypothetical or possible
impairment of rights because of a rule or its possible application—as opposed to
claiming an existing or reasonably probable application that will cause
particularized, specific injury—the claim calls for an advisory opinion.”).
Appellees lack standing to assert their declaratory judgment claims against
the City due to the fact that with regard to those claims, in contrast to claims relating
to the submission of the Petition and its result, they have failed to allege that they
possess any particularized injury separate and apart from the general public which
would be redressed by the declaratory relief sought. In this regard, the relief sought
by Appellees is that the Court declare that the Ordinance is suspended and another
BRIEF OF APPELLANT CITY OF PLANO PAGE 50
ordinance resurrected.18 See (C.R. 102-03 (¶ 45)). Nothing in the pleaded facts
alleges that Appellees have suffered, or would suffer, any particular injury which
warrants the grant of the requested declaratory relief. See generally (C.R. 92-105).
As a result, subject matter jurisdiction over such claims is lacking, the trial court
erred by refusing to dismiss Appellees’ declaratory judgment claims against the
City, and Appellees’ claims should be dismissed. See Tex. Air Control Bd., 852
S.W.2d at 446 (pleader must allege facts demonstrating court’s jurisdiction).
3. No Pleading Amendment Will Cure Appellees’ Jurisdictional Defects
As with Appellees’ mandamus claims against the City Secretary and City
Council, no pleading amendment could possibly cure Appellees’ declaratory
judgment claims against the City. Koseoglu, 233 S.W.3d at 840. Appellees have
made clear that they concede that the Ordinance was valid, at least for a period of
time, and that they seek only an interpretation of what law is in place in the event that
a referendum election is ultimately ordered. Appellees cannot amend to somehow
recast the same claims as falling within a waiver of the City’s immunity from suit.
As a result, because Appellees will not be able to state a viable declaratory judgment
claim against the City, no opportunity to amend need be provided. Id. (citing
18 Plaintiffs fail to allege any basis upon which the “Amended 1986 Comprehensive Plan” could be retroactively readopted by the suspension of the Ordinance. In this regard, there is no dispute that the Ordinance was, in fact, adopted by the City’s City Council. The City’s Code or Ordinances specifically provides that “[t]he repeal of an ordinance shall not revive any ordinance in force before or at the time the ordinance repealed took effect.” City of Plano Code of Ordinances §1-10(a) available at http://www.municode.com/library/tx/plano/codes/code_of_ordinances.
BRIEF OF APPELLANT CITY OF PLANO PAGE 51
Miranda, 133 S.W.3d at 228).
4. Alternatively, Appellees’ Declaratory Judgment Claims Against the City Necessarily Fail Because the PTP Is Not Subject to Referendum Petition
Alternatively, it should be noted that Appellees’ declaratory judgment claims
against the City presuppose that the Ordinance is subject to being attacked via the
filing of a referendum petition, i.e., the Petition. See (C.R. 101-03). However, as
noted supra, this is not the case, and the Petition submitted by Appellees and others
cannot serve to seek a referendum on the PTP. See supra at Part B. As a result,
because Appellees cannot challenge the enactment of the Ordinance via their
submitted Petition, their declaratory judgment claims fail to state a claim within the
City’s limited waiver of immunity and, as a result, the trial court erred by not
dismissing these claims for lack of subject matter jurisdiction.
Issue Three: Whether the trial court erred by denying the City and City Council’s Plea to the Jurisdiction due to the fact that Appellees’ only ripe claim is their mandamus claim against the City Secretary?
D. THE TRIAL COURT ERRED BY DENYING THE CITY AND THE
CITY COUNCIL’S PLEA TO THE JURISDICTION IN THAT THE ONLY RIPE CLAIM PLEADED BY APPELLANTS IS THEIR MANDAMUS CLAIM AGAINST THE CITY SECRETARY
In addition to the foregoing, the trial court further erred by denying the City
and City Council’s Plea to the Jurisdiction due to the fact that the only ripe claim
BRIEF OF APPELLANT CITY OF PLANO PAGE 52
pleaded by Appellees is their claim for mandamus relief against the City Secretary.
Ripeness is a threshold issue that implicates subject-matter jurisdiction. Robinson v.
Parker, 353 S.W.3d 753, 755 (Tex. 2011). While standing focuses on who may
bring an action, ripeness examines when an action may be brought. Patterson v.
Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998).
The ripeness inquiry focuses on whether the case involves uncertain or contingent
future events that may not occur as anticipated, or may not occur at all. Robinson,
353 S.W.3d at 756; Lazarides v. Farris, 367 S.W.3d 788, 801-02 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). “Although a claim is not required to be
ripe at the time of filing, if a party cannot demonstrate a reasonable likelihood that
the claim will soon ripen, the case must be dismissed.” Id. "[T]he essence of the
ripeness doctrine is to avoid premature adjudication . . . [and] to hold otherwise
would be the essence of an advisory opinion, advising what the law would be on a
hypothetical set of facts." Robinson, 353 S.W.3d at 756. In this regard, “[a]
declaratory judgment action does not vest a court with the power to pass upon
hypothetical or contingent situations, or to determine questions not then essential to
the decision of an actual controversy, although such questions may in the future
require adjudication.” Harris County Mun. Util. Dist. No. 156 v. United Somerset
Corp., 274 S.W.3d 133, 139-40 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
BRIEF OF APPELLANT CITY OF PLANO PAGE 53
Appellees have specifically pleaded that “a petition addressed, prepared,
signed, and verified as required by the Charter and containing over 4,000 signatures
was submitted to the City Secretary” and that the City Secretary “was obligated to
immediately present the Petition to the City Council[,]” which she did not do, nor did
she even count the signatures thereon. (C.R. 99 (¶¶ 31-32)) (emphasis in original).
Appellees further concede that the City’s Charter provides that it is only after the
“person performing the duties of city secretary” presents such a petition to the City
Council that the City Council “shall immediately reconsider such ordinance or
resolution” and either repeal same or submit it to a popular vote. (C.R. 98-99 (¶ 29))
(quoting City of Plano City Charter § 7.03), (C.R. 99 (¶ 30)) (“The City Council then
has an obligation . . . .”) (emphasis added). While Appellees’ claim that that City
Secretary has not presented the Petition to the City’s City Council is ripe, the
balance of their mandamus claims which seek to compel the allegedly ministerial
duties of the City Council are based solely upon contingent or hypothetical facts.
Robinson, 353 S.W.3d at 756.
Put simply, as no duty of the City Council has ever been triggered by the
presentment of a Petition, Appellees’ claims seeking to compel action by the City
Council are not ripe because those duties may never arise, and the City Council’s
alleged failure to consider or present the Ordinance to a popular vote, if not repealed,
is entirely hypothetical. (C.R. 102-03 (¶ 45)); Robinson, 353 S.W.3d at 756; United
BRIEF OF APPELLANT CITY OF PLANO PAGE 54
Somerset Corp., 274 S.W.3d at 139-40. First, Appellees presume that sufficient
valid signatures have been collected by Plaintiffs prior to their being counted by the
City Secretary. (C.R. 99 (¶¶ 31-32)). Next, even more obviously, Appellees’
mandamus claims against the City Council are not ripe as each and every one of
these (identical) claims is contingent upon the City Council making a legislative
decision not to “entirely repeal” the Ordinance and instead submitting same to the
voters. (C.R. 98-99 (¶ 29)) (reproducing Charter § 7.03). Appellees have pleaded no
facts which in any way establish that there is a reasonable likelihood as to what the
outcome of presentment of the Petition to the City Council would be. See generally
(C.R. 92-105). Indeed, Appellees have simply asserted that under the Charter, the
City Council has duties which may, but have not yet, arisen, and, as to the City, they
ask this Court to issue a declaratory judgment interpreting the legal result of these
supposed actions which the City Council may, but is not obligated to, take. (C.R.
104-05). Such claims for relief are blatantly premised upon contingent and
hypothetical facts and, as a result, Appellees’ claims are clearly not yet ripe for
presentment. Robinson, 353 S.W.3d at 756.
Because, outside of Appellees’ claim seeking to compel presentment of the
Petition by the City Secretary, each and every one of Appellees’ claims is contingent
and based upon hypothetical events which may or may not come to pass, each of
their remaining claims is unripe, subject matter jurisdiction is lacking, and the trial
BRIEF OF APPELLANT CITY OF PLANO PAGE 55
court erred by failing to dismiss those claims. Id. at 755.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellants City of Plano,
Texas; Lisa Henderson, in her official capacity as City Secretary; Harry LaRosiliere,
in his official capacity as Mayor; Angela Miner, in her official capacity as member
of the City Council; Ben Harris, in his official capacity as member of the City
Council; Rick Grady, in his official capacity as member of the City Council; Lissa
Smith, in her official capacity as member of the City Council; Ron Kelley, in his
official capacity as member of the City Council; Tom Harrison, in his official
capacity as member of the City Council; and David Downs, in his official capacity
as member of the City Council pray that this Honorable Court reverse the trial
court’s order denying their Plea to the Jurisdiction that was signed on May 16, 2016;
that it grant their Plea to the Jurisdiction; and that it dismiss Appellees’ claims
against them for lack of subject matter jurisdiction.
BRIEF OF APPELLANT CITY OF PLANO PAGE 56
Respectfully submitted,
By: ANDY TAYLOR
State Bar No. 19727600 ANDY TAYLOR & ASSOCIATES, P.C. 2668 Highway 36S, #288 Brenham, Texas 77833 713-222-1817 (telephone) 713-222-1855 (facsimile) [email protected] /s/ Robert J. Davis
ROBERT J. DAVIS State Bar No. 05543500
MATTHEWS, SHIELS, KNOTT, EDEN, DAVIS & BEANLAND, L.L.P. 8131 LBJ Freeway, Suite 700 Dallas, Texas 75251 972/234-3400 (office) 972/234-1750 (telecopier) [email protected] /s/ Timothy A. Dunn
TIMOTHY A. DUNN Assistant City Attorney State Bar No. 24050542 CITY OF PLANO, TEXAS P.O. Box 860358 Plano, Texas 75086-0358 Telephone: (972) 941-7125 Facsimile: (972) 424-0099 Email: [email protected]
ATTORNEYS FOR APPELLANTS
BRIEF OF APPELLANT CITY OF PLANO PAGE 57
CERTIFICATE OF SERVICE This is to certify that, pursuant to TEX. R. APP. P. 9.5, on this the 5th day of July, 2016, a true and correct copy of the above and foregoing instrument was served upon Jack Ternan, Ternan Law Firm, PLLC, 1400 Preston Road, Suite 400, Plano, Texas 75093, counsel for Appellees, by electronic service.
/s/ Timothy A. Dunn TIMOTHY A. DUNN
BRIEF OF APPELLANT CITY OF PLANO PAGE 58
CERTIFICATE OF COMPLIANCE Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned certifies this brief complies with the type-volume limitations of Tex. R. App. P.9(i)(2). 1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN Tex. R. App. P. 9(i),
THE BRIEF CONTAINS:
A. (Entire Brief) 13,039 words, OR
B. N/A lines of text in monospaced typefaces 2. THE BRIEF HAS BEEN PREPARED:
A. in proportionally spaced typeface using: Software Name and Version: Microsoft Word, Version 14.0.7166.5000 in Times New Roman, 14 Points, OR
B. in monospaced (nonproportionally spaced) typeface using: Typeface name and number of characters per inch: N/A
/s/ Timothy A. Dunn TIMOTHY A. DUNN
APPENDIX TO BRIEF OF APPELLANTS PAGE 1
No. 05-16-00573-CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS __________________________________________________________________ CITY OF PLANO, TEXAS; LISA HENDERSON, IN HER OFFICIAL CAPACITY AS CITY SECRETARY; HARRY LAROSILIERE, IN HIS OFFICIAL CAPACITY AS MAYOR; ANGELA MINER, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; BEN HARRIS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RICK GRADY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; LISSA SMITH, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RON KELLEY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; TOM HARRISON, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; AND DAVID DOWNS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL
Appellants vs. ELIZABETH CARRUTH; MATTHEW TIETZ; JANIS NASSERI; JUDITH
KENDLER AND STEPHEN PALMA
Appellees __________________________________________________________________
APPENDIX TO BRIEF OF APPELLANTS __________________________________________________________________ TO THE HONORABLE FIFTH COURT OF APPEALS:
APPENDIX TO BRIEF OF APPELLANTS PAGE 2
COME NOW the City of Plano, Texas (“City”); Lisa Henderson, in her
official capacity as City Secretary (the “City Secretary”); Harry LaRosiliere, in his
official capacity as Mayor; Angela Miner, in her official capacity as member of the
City Council; Ben Harris, in his official capacity as member of the City Council;
Rick Grady, in his official capacity as member of the City Council; Lissa Smith, in
her official capacity as member of the City Council; Ron Kelley, in his official
capacity as member of the City Council; Tom Harrison, in his official capacity as
member of the City Council; and David Downs, in his official capacity as member of
the City Council (all members collectively the “City Council”) (all Appellants
collectively “Appellants”), the Appellants herein and pursuant to Tex. R. App. P.
38.1(k) submits this their Appendix to Brief of Appellants:
Appendix Exhibit Description 1 Order Denying Appellants’ Plea to the
Jurisdiction 2 Texas Local Government Code chapter 211 3 Texas Local Government Code chapter 213
EXHIBIT 1
EXHIBIT 2
EXHIBIT 3