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City of Plano v. Carruth

Court of Appeals of Texas, Fifth District, Dallas

February 23, 2017

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
v.
ELIZABETH CARRUTH, MATTHEW TIETZ, JANIS NASSERI, JUDITH KENDLER, AND STEPHEN PALMA, Appellees

         On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-00469-2016

          Before Justices Lang-Miers, Stoddart, and O'Neill [1]

          MEMORANDUM OPINION

          CRAIG STODDART JUSTICE

         This is an interlocutory appeal from the denial of a plea to the jurisdiction. Appellees Elizabeth Carruth, Matthew Tietz, Janis Nasseri, Judith Kendler, and Stephen Palma sued the ity of Piano, the City Secretary, the Mayor, and the members of the City Council in their official capacities[2] seeking writs of mandamus and a declaratory judgment regarding the City Secretary's failure to submit their petition for a referendum on a city ordinance to the City Council and the Council's failure to reconsider the ordinance and call an election. Appellants filed a plea to the jurisdiction asserting that an ordinance adopting a municipal comprehensive plan[3] is not subject to the referendum process and, other than the mandamus claim against the City Secretary, the claims are not ripe. The trial court denied the plea.

         The City[4] argues the trial court erred by denying the plea to the jurisdiction because the City is immune from suit and the claims, other than the mandamus claim against the City Secretary, are not ripe.[5] As discussed below, we affirm the denial of the plea as to the mandamus claim against the City Secretary, reverse the denial as to the mandamus claim against the City Council and the declaratory judgment claim and dismiss those claims for lack of subject matter jurisdiction.

         Background

         The governing body of a municipality may adopt a comprehensive plan for the long-range development of the city, including provisions on land use, transportation, and public facilities. Tex. Loc. Gov't Code Ann. § 213.002. Such a plan or coordinated set of plans may be used to coordinate and guide the establishment of development regulations. Id. A comprehensive plan may be adopted or amended by ordinance after a public hearing allowing testimony and written evidence and review by the city's planning commission or department, if one exists. Id. § 213.003. A city may establish in its charter or by ordinance the procedures for adopting and amending a comprehensive plan. Id. Zoning regulations must be adopted in accordance with a comprehensive plan. Id. § 211.004. Maps of a comprehensive plan must contain the statement that a "comprehensive plan shall not constitute zoning regulations or establish zoning district boundaries." Id. § 213.005.

         The Plano City Charter permits qualified voters to submit a referendum petition seeking reconsideration of and a public vote on any ordinance, other than taxation ordinances. Plano, Tex., Home Rule Charter § 7.03 [hereinafter Charter]. The referendum petition must be filed with the City Secretary within thirty days of passage or publication of the ordinance and be signed and verified as required by section 7.02. Id. Section 7.02 provides that a petition must be signed by at least twenty percent of the qualified voters at the last regular municipal election, or one hundred fifty, whichever is greater. Id. § 7.02. "Immediately upon the filing of such petition, the person performing the duties of city secretary shall present said petition to the city council." Id. § 7.03.

         After presentation of a referendum petition by the City Secretary, 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." Id. If the City Council submits the ordinance to popular vote, "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." Id.

         On October 12, 2015, following public hearings and review by the city planning department, the City Council adopted ordinance 2015-10-9 establishing a new comprehensive plan (the Plan) and repealing the previous comprehensive plan.[6] After adoption of the Plan, several citizens began collecting signatures on a petition requesting a referendum under the provisions of the city charter. On November 10, 2015, the petition was presented to the City Secretary.

         The City Secretary did not act on the referendum petition. On November 23, 2015, the City Council met to discuss the petition and was advised by outside counsel that zoning regulations are not subject to a referendum vote. On January 20, 2016, counsel for appellees sent a letter to the city attorney requesting that the City Secretary present the referendum petition to the City Council as required by the charter and that the City Council perform its duties under the charter when presented with the petition. No one with the City responded to the letter or complied with appellees' requests.

         Appellees then filed this suit seeking a writ of mandamus directing the City Secretary to present the petition to the City Council and directing the City Council to reconsider the Plan and submit it to popular vote if the council did not entirely repeal the Plan. In addition, appellees sought a declaratory judgment that pending approval by the voters in a referendum the Plan is suspended and invalid, is not the current comprehensive plan, and the repealed comprehensive plan is the current comprehensive plan.

         The City filed a plea to the jurisdiction asserting governmental immunity and ripeness by challenging the jurisdictional allegations in appellees' petition. After hearing the arguments of counsel, the trial court denied the plea to the jurisdiction. The City then filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.0014(a)(8).

          Standard of Review

         A plea to the jurisdiction is a dilatory plea that challenges the trial court's subject matter jurisdiction without regard to the merits of the claims asserted. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review the trial court's ruling on a plea to the jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts affirmatively showing the court's jurisdiction. Id. We construe the pleadings liberally in favor of the plaintiffs and look to the pleader's intent. Id. In this case, the City did not challenge the existence of jurisdictional facts and the parties did not submit evidence; therefore, we consider only the jurisdictional allegations in the pleadings.

         A plea to the jurisdiction presents only the question of the court's jurisdiction to hear the case; it does not present the merits of the case for determination. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012); Consumer Serv. All. of Texas, Inc. v. City of Dallas, 433 S.W.3d 796, 802 (Tex. App.-Dallas 2014, no pet.). Therefore, we consider only the jurisdictional issue, not the merits of the underlying case. City of Dallas v. Brown, 373 S.W.3d 204, 209 (Tex. App.-Dallas 2012, pet. denied).

         Jurisdiction

         Governmental immunity from suit defeats a trial court's subject matter jurisdiction unless immunity has been expressly waived. Rusk State Hosp. v. Black, 392 S.W.3d 88, 91 (Tex. 2012); Miranda, 133 S.W.3d at 224. Additionally, the law has long recognized that a writ of mandamus will issue to compel a public official to perform a ministerial act. See Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). Thus, governmental immunity does not bar a suit seeking to compel public officials to comply with statutory or constitutional provisions or to perform a ministerial act. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) ("[I]t is clear that suits to require state officials to comply with statutory or constitutional provisions are not prohibited by sovereign immunity . . . ."). The plaintiff "must allege, and ultimately ...


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