Opinion
NO. 14-19-00959-CV
10-12-2021
Bruce R. HOTZE, Appellant v. Sylvester TURNER, Mayor, and the City of Houston, Appellees
William A. Taylor, Brenham, for Appellant. Collyn Ann Peddie, Houston, for Appellee.
William A. Taylor, Brenham, for Appellant.
Collyn Ann Peddie, Houston, for Appellee.
Panel consists of Justices Jewell, Zimmerer, and Hassan
Meagan Hassan, Justice
This dispute stems from two amendments to the Houston City Charter, both of which prescribed certain limitations on the City's revenue collection. In 2014, Appellant Bruce R. Hotze sued Sylvester Turner in his official capacity as Mayor of the City of Houston and the City of Houston (together, "Appellees") to enforce one of those amendments.
The parties filed cross-motions for summary judgment; the trial court granted in part and denied in part Appellees’ summary judgment motion and denied Hotze's motion. The case proceeded to a bench trial and the trial court signed a judgment for Appellees. Hotze appealed and challenges the trial court's summary judgment order. Appellees filed a cross-appeal contingent on this court sustaining any of the issues raised in Hotze's appeal. For the reasons below, we affirm the trial court's summary judgment.
BACKGROUND
Propositions 1 and 2
In 2004, two potential amendments to the Houston City Charter were proposed to limit increases in sources of City revenue: Propositions 1 and 2. The text of both Propositions was included in full in "City of Houston Ordinance No. 2004-887" (the "Election Ordinance"). The Election Ordinance ordered a special election to be held on November 2, 2004, to submit Propositions 1 and 2 to a vote.
Proposition 1 was placed on the ballot pursuant to the City's own motion. Addressing "Limits on Annual Increases in City Property Taxes and Utility Rates", Proposition 1 imposed a limit on property taxes and water and sewer rates by requiring that the Houston City Council obtain voter approval before increasing (1) property tax revenues above a limit measured by the lesser of 4.5% or the cumulative combined rates of inflation and population growth, or (2) water and sewer rates above the cumulative combined rates of inflation and population growth. Aside from these restrictions, Proposition 1 permitted the City to retain "full authority to assess and collect any and all revenues of the city without limitation."
Following the quoted text of Proposition 1, the Election Ordinance included a primacy clause stating:
If another proposition for a Charter amendment relating to limitations on increases in City revenues is approved at the same election at which this proposition is also approved, and if this proposition receives the higher number of favorable votes, then this proposition shall prevail and the other shall not become effective.
In contrast to Proposition 1, Proposition 2 resulted from a citizen-initiated referendum petition. Addressing "Limits on all Combined City Revenues", Proposition 2 required the City to obtain voter approval before it could increase total revenues from all sources by more than the combined rates of inflation and population.
In the November 2004 election, Propositions 1 and 2 each passed with a majority of the votes cast on the particular proposition. Proposition 1 received more favorable votes than Proposition 2.
The results of the election were declared in "City of Houston Ordinance No. 2005-568 (the "Adoption Ordinance"). The Adoption Ordinance stated that Propositions 1 and 2 "were approved by a majority of the qualified voters voting in the Election and are adopted, with Proposition 1 receiving a higher number of votes than Proposition 2." The Adoption Ordinance further stated that Proposition 1 was legally binding and that Proposition 2 would not be enforced. This conclusion rested on two bases: (1) Proposition 1's primacy clause, and (2) article IX, section 19 of the Houston City Charter which states, in relevant part:
at any election for the adoption of amendments if the provisions of two or more proposed amendments approved at said election are inconsistent the amendment receiving the highest number of votes shall prevail.
The Underlying Proceeding
In April 2014, Hotze filed an original petition asserting claims against Appellees. In Hotze's second amended petition, he requested the following declaratory judgments regarding the interplay between Propositions 1 and 2:
Hotze was one of three plaintiffs that filed the original petition. The other two plaintiffs are not parties to this appeal.
• Both Propositions 1 and 2 are valid as a matter of law.
• Proposition 1's primacy clause "was never included in the actual text of Proposition 1 and was never voted on or passed by the electorate."
• Alternatively, if the trial court concludes that the primacy clause is a valid part of Proposition 1, then "Proposition 1 is unconstitutional because it violates Tex. Const. art. XI § 5 and is illegal because it violates Section 9.005(a) of the Local Government Code."
• Propositions 1 and 2 are not inconsistent.
• Alternatively, if the trial court concludes Propositions 1 and 2 are inconsistent, that either Proposition 1 or article IX, section 19 of the Houston City Charter is unconstitutional.
• Alternatively, if the trial court concludes that neither Proposition 1 nor article IX, section 19 of the Houston City Charter is unconstitutional, the trial court "should reconcile the Propositions so that at the very least, the portions of both Propositions that the Court finds are not inconsistent can stand."
Hotze's second amended petition also alleged that Appellees have "passed annual budgets ... which exceed the permissible caps contained in either Proposition 1 or Proposition 2 or both." Hotze requested declaratory and injunctive relief with respect to these alleged budgetary violations.
Appellees filed a combined plea to the jurisdiction and a motion for summary judgment, which the trial court denied. Appellees filed an interlocutory appeal from the denial of their plea to the jurisdiction. See Turner v. Robinson , 534 S.W.3d 115, 118 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). In that appeal, we concluded that (1) Hotze, as a taxpayer, had standing to seek injunctive and declaratory relief, (2) Hotze pleaded a valid ultra vires claim against the Mayor, and (3) the City's sovereign immunity with respect to Hotze's declaratory judgment action was waived under the Uniform Declaratory Judgment Act. See id. at 124, 126, 127. We affirmed the trial court's denial of Appellees’ plea to the jurisdiction. Id. at 127.
In Turner , this court also provided a detailed overview of other litigation relating to Propositions 1 and 2. See Turner , 534 S.W.3d at 120-22.
Back in the trial court, Appellees filed a "Supplemental Plea to the Jurisdiction/Motion for Summary Judgment and Motion for Reconsideration of this Court's May 2, 2016 Order Denying Defendants’ Plea to the Jurisdiction and Motion for Summary Judgment." Hotze filed a traditional motion for summary judgment. See Tex. R. Civ. P. 166a(c).
On September 16, 2019, the trial court signed an order that (1) granted in part and denied in part the City's "Supplemental Plea to the Jurisdiction/Motion for Summary Judgment and Motion for Reconsideration", and (2) denied Hotze's traditional motion for summary judgment. The trial court's order also contains the following conclusions of law:
1. [Hotze] has taxpayer standing;
2. [Hotze] does not have standing under Proposition 2;
3. Governmental immunity does not bar [Hotze's] suit;
4. Proposition 2 is not effective because of Proposition 1's primacy clause; and
5. Propositions 1 and 2 are not irreconcilably or substantively inconsistent and do not trigger Art. IX, § 19 of the City Charter.
The parties proceeded to a bench trial in October 2019; the only issue remaining for the trial court's determination was whether Appellees had complied with Proposition 1. The trial court signed a final judgment on October 29, 2019, concluding that (1) Appellees fully complied with Proposition 1 throughout the relevant time period, and (2) Hotze was not entitled to an award of attorney's fees. Hotze appealed and Appellees filed a cross-appeal.
ANALYSIS
Asserting error in the trial court's September 16, 2019 summary judgment order, Hotze raises three issues challenging the trial court's conclusion that "Proposition 2 is not effective because of Proposition 1's primacy clause[.]" Specifically, Hotze asserts:
1. The primacy clause "was never included in Proposition 1."
2. Proposition 2 does not trigger Proposition 1's primacy clause.
3. Proposition 1's primacy clause conflicts with the Texas Constitution and state law.
Hotze also requests that we remand the case to permit the trial court to determine whether he is entitled to a recovery of attorney's fees.
In their cross-appeal, Appellees assert that the issues they raise merit consideration only if this court reverses the trial court's conclusion that Proposition 1's primacy clause renders Proposition 2 unenforceable.
For the reasons below, we overrule the issues Hotze raises on appeal. Because we do not revisit the trial court's conclusion of law regarding Proposition 1's primacy clause, we need not address the issues Appellees raise in their cross-appeal.
I. Standard of Review
The parties’ cross-motions for summary judgment presented a question of law regarding the effect of Proposition 1's primacy clause on Proposition 2. We review the trial court's conclusion of law on this point de novo. Cook v. Nissimov , 580 S.W.3d 745, 751 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).
"When we review cross-motions for summary judgment, we consider both motions and render the judgment that the trial court should have rendered." Coastal Liquids Transp., L.P. v. Harris Cty. Appraisal Dist. , 46 S.W.3d 880, 884 (Tex. 2001). Each party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News , 22 S.W.3d 351, 356 (Tex. 2000).
II. Application
A. The Primacy Clause Was Included in Proposition 1.
Referring to the Election Ordinance, Hotze points out that the primacy clause was "not combined within the quoted portion" of Proposition 1 but instead was listed afterwards in a separate paragraph. This structure, Hotze argues, "means that the [primacy clause] was not intended and indeed was not part of the text of Proposition 1."
Hotze does not cite, and our research did not find, any case law or other authority to support his contention that quoted versus unquoted portions of a proposition as shown in the Election Ordinance determine those provisions’ enforceability. Without any authority to support this construction, we will not adopt it here.
Moreover, the ultimate determination regarding Propositions 1 and 2 was reserved to the voters. See Tex. Const. art. XI, § 5 ("Cities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters."). When they cast their votes, "voters are presumed to be familiar with every measure on the ballot." Dacus v. Parker , 466 S.W.3d 820, 825 (Tex. 2015) ; see also Dacus v. Parker , 383 S.W.3d 557, 565 (Tex. App.—Houston [14th Dist.] 2012), rev'd on other grounds , 466 S.W.3d 820 (Tex. 2015) ("We instead presume that by the time voters have entered the polling place, they already are familiar with the measure [on the ballot]."). This presumption is justified "because publication of the measures as required by law constitutes notice to the voters of its contents." Dacus , 383 S.W.3d at 565.
Included in their response to Hotze's summary judgment motion, Appellees filed an exhibit containing four Houston Chronicle newspaper articles published in the three months preceding the November 2004 election on Propositions 1 and 2. These articles consistently described Propositions 1 and 2 as "competing charter amendments". The August 26, 2004 article specifically stated that the Proposition "with the most votes will become law because they propose conflicting policies." The October 30, 2004 article informed readers that "Houston residents will vote Tuesday on the two competing charter amendments that would limit city revenues by different means."
See Ron Nissimov, Survey Weighs Propositions; Both Limit Revenues , Houston Chronicle, Oct. 30, 2004, https://www.chron.com/news/politics/article/Survey-weighs-propositions-both-limit-revenues-1516633.php; Revenue Caps: Vote FOR Prop. No. 1, AGAINST Prop. No. 2 , Houston Chronicle, Oct. 6, 2004, https://www.chron.com/opinion/editorials/article/Revenue-caps-Vote-FOR-Prop-No-1-AGAINST-Prop-1961490.php; Ron Nissimov, City's Revenue Fight Going to the Nov. 2 Ballot , Houston Chronicle, Aug. 26, 2004, https://www.chron.com/news/politics/article/City-s-revenue-fight-going-to-the-Nov-2-ballot-1969054.php; Kristen Mack & Ron Nissimov, Debate on City Revenue Caps Kicks Off , Houston Chronicle, Aug. 24, 2004, https://www.chron.com/news/houston-texas/article/Debate-on-city-revenue-caps-kicks-off-1493833.php.
Ron Nissimov, City's Revenue Fight Going to the Nov. 2 Ballot , Houston Chronicle, Aug. 26, 2004, https://www.chron.com/news/politics/article/City-s-revenue-fight-going-to-the-Nov-2-ballot-1969054.php.
Ron Nissimov, Survey Weighs Propositions; Both Limit Revenues , Houston Chronicle, Oct. 30, 2004, https://www.chron.com/news/politics/article/Survey-weighs-propositions-both-limit-revenues-1516633.php
As this evidence shows, newspaper articles published before the election stated that Propositions 1 and 2 were alternative proposals to limit city revenues. This representation aligns with the primacy clause which states that, if two propositions "relating to limitations on increases in City revenues" were approved at the same election, Proposition 1 alone would prevail if it received more votes than the competing proposition. We presume the voters were familiar with this procedural posture when they voted on Propositions 1 and 2 and cast their votes accordingly. See Dacus , 466 S.W.3d at 825. We will not forgo this presumption and its application to the issue here merely because the primacy clause was not included within the quoted portion of Proposition 1 in the Election Ordinance.
We overrule Hotze's first issue.
B. Proposition 2 Triggers Proposition 1's Primacy Clause.
In his second issue, Hotze asserts that Proposition 2 does not trigger Proposition 1's primacy clause because "Proposition 1 and Proposition 2 impact different phases of the budgeting process." Specifically, Hotze contends that Proposition 1 "solely relates to limitations on the assessment and collection of property tax revenues" whereas Proposition 2 "relates to the necessity for prior voter approval before total spending in any given budget year may exceed a particular mathematical formula." We reject this contention.
The rules governing the construction of state statutes also govern our construction of municipal ordinances. See City of Pearland v. Reliant Energy Entex , 62 S.W.3d 253, 256 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). The proper construction of an ordinance is a question of law we review de novo. Id.
In construing a municipal ordinance, we seek to determine and give effect to the intent of the governing body of the municipality. MHI P'ship, Ltd. v. City of League City , 525 S.W.3d 370, 378 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We ascertain that intent from the language the governing body used in the ordinance — if the meaning of the ordinance's language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision's words. Id. "We must not engage in forced or strained construction; instead, we must yield to the plain sense of the words the governing body chose." Id. at 378-79.
Here, a plain reading of Propositions 1 and 2 shows that Proposition 2 falls within the primacy clause's ambit. The primacy clause states:
If another proposition for a Charter amendment relating to limitations on increases in City revenues is approved at the same election at which this proposition is also approved, and if this proposition receives the higher number of favorable votes, then this proposition shall prevail and the other shall not become effective.
(emphasis added). As shown in the Election Ordinance, the text of Proposition 2 advances an amendment "relating to limitations on increases in City revenues":
• Proposition 2 is described as an amendment "Relating to Limits on All Combined City Revenues."
• Subsection 1 of Proposition 2 is entitled "Limitation on Growth in Revenues."
• Pursuant to Subsection 1, the Houston City Council may not, without the prior approval of 60% of those voting at a regular election, increase the City's "combined revenues" in an amount greater than the combined rates of inflation and population. Proposition 2 defines "combined revenues" as "the combined revenues of the City's General Fund, Enterprise Funds and Special Revenue Funds" and excludes "grant monies and other revenues received from other governmental entities" and "IntraCity (in other words, InterFund) revenues."
As these excerpts show, Proposition 2 advances an amendment that limits increases in City revenue past certain thresholds. Therefore, it falls within the primacy clause's purview.
We overrule Hotze's second issue.
C. Proposition 1's Primacy Clause Does Not Conflict With the Texas Constitution and State Law.
In his third issue, Hotze asserts Proposition 1's primacy clause "conflicts with the Texas Constitution and state law and is therefore void and unenforceable." Hotze bases this argument on article XI, section 5 of the Texas Constitution and Texas Local Government Code sections 9.004(e) and 9.005(a).
Article XI, section 5 of the Texas Constitution provides as follows with respect to the amendment of city charters for cities of 5,000 or more population:
The adoption or amendment of charters is subject to such limitations as may be
prescribed by the Legislature, and no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State or of the general laws enacted by the Legislature of this State.
Tex. Const. art XI, § 5 (emphasis added). Hotze contends the primacy clause runs afoul of this constitutional provision by violating sections 9.004(e) and 9.005(a). We examine these arguments below.
1. Texas Local Government Code Section 9.004(e)
Texas Local Government Code section 9.004(e) states:
The ballot shall be prepared so that a voter may approve or disapprove any one or more amendments without having to approve or disapprove all of the amendments.
Tex. Loc. Gov't Code Ann. § 9.004(e). Hotze asserts that, because the primacy clause required voters approving of Proposition 1 to also disapprove of Proposition 2, the primacy clause violated section 9.004(e). This argument essentially raises a ballot-preparation challenge; as such, it was required to be raised in an election contest. Because the underlying proceeding is not an election contest, we conclude that this argument is waived.
An election contest is a special proceeding created by the Legislature to provide a remedy for elections tainted by fraud, illegality, or other irregularity. See Tex. Elec. Code Ann. §§ 233.001 - 233.014 ; Blum v. Lanier , 997 S.W.2d 259, 262 (Tex. 1999). "[A]n election contest includes any type of suit in which the validity of an election or any part of the elective process is made the subject matter of the litigation." Rossano v. Townsend , 9 S.W.3d 357, 362 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Under the Election Code, an election contest is subject to a strict timetable: it may not be brought earlier than the day after election day and must be filed within 30 days after the return date of the election. Tex. Elec. Code Ann. § 233.006(a) - (b) ; see also Hotze v. White , No. 01-08-00016-CV, 2010 WL 1493115, at *4 (Tex. App.—Houston [1st Dist.] Apr. 15, 2010, pet. denied) (mem. op.).
A challenge similar to the issue Hotze raises here was addressed in Arredondo v. City of Dallas , 79 S.W.3d 657 (Tex. App.—Dallas 2002, pet. denied). There, the City argued an ordinance's inclusion on the January 1979 election ballot violated Article 1269q, which provided that "no other issue could be joined on the same ballot as a proposition to increase the salaries of the fire department and police department." Id. at 669. Holding that this type of challenge only could be raised in an election contest, the court stated that the City's attempt to "challeng[e] the validity of placing [the ordinance] on the 1979 election ballot" was "nothing more than a back-door attempt to contest the election more than twenty years after it was held." Id. at 670. Accordingly, because this issue was not raised in a timely-filed election contest, the court concluded that it was waived. Id.
Similarly here, Hotze's section 9.004(e) argument challenges the propriety of placing Proposition 1 and its primacy clause on the 2004 ballot. This ballot-preparation challenge was required to be raised in an election contest; because Hotze failed to do so, this argument is waived. See id. at 669-70 ; see also Hotze , 2010 WL 1493115, at *4 (stating that an election contest is the "only statutory mechanism" to "challenge the process by which the City presented the propositions to the electorate").
We overrule Hotze's challenge premised on Texas Local Government Code section 9.004(e). 2. Texas Local Government Code section 9.005(a)
Texas Local Government Code section 9.005(a) states:
A proposed charter for a municipality or a proposed amendment to a municipality's charter is adopted if it is approved by a majority of the qualified voters of the municipality who vote at an election held for that purpose.
Tex. Loc. Gov't Code Ann. § 9.005(a). Asserting the primacy clause violates this provision, Hotze argues that, because "Propositions 1 and 2 were both adopted by a majority of the voters of the City of Houston on November 2, 2004[,] ... both Propositions must be enacted." We reject this contention.
Section 9.005(a) states that a proposed amendment is "adopted if it is approved by a majority of the qualified voters". Id. Here, as discussed above, both Propositions 1 and 2 were approved by a majority of the qualified voters at the November 2004 election. The results of this election were declared in the Adoption Ordinance, which states that Propositions 1 and 2 "were approved by a majority of the qualified voters voting in the Election and are adopted , with Proposition 1 receiving a higher number of votes than Proposition 2." (emphasis added). Accordingly, because the primacy clause did not prevent adoption of Proposition 2 as part of the city charter, the primacy clause does not violate section 9.005(a).
We overrule Hotze's challenge premised on Texas Local Government Code section 9.005(a).
III. Attorney's Fees
In his final issue, Hotze requests that this case be remanded to the trial court so that he may seek recovery of his attorney's fees from Appellees. Because we do not sustain any of Hotze's issues challenging the trial court's summary judgment order, we reject his request regarding attorney's fees. We overrule Hotze's final issue.
RESPONSE TO THE DISSENT
Both Hotze and our dissenting colleague appear to presume the statute's use of the term "adopted" means that an ordinance must be given "effectiveness" upon adoption. Without this presumption, the question cannot be "may a home-rule municipality nevertheless deny effectiveness." Dissenting Op. at 518. We share no such presumption, particularly given the absence of any statutory language, cited precedent, or known precedent instructing otherwise.
The dissent further appears to imply that if two municipal ordinances were inconsistent without municipal interference or primacy clauses, this court should force compliance with both. Again, we are aware of no such precedent. While we recognize the equitable argument that this particular primacy clause is potentially unfair to the supporters of Proposition 2, that equitable argument was not briefed and not addressed by the dissent.
Finally, our dissenting colleague repeatedly cites Texas Local Government Code section 9.005(a) for the proposition that Proposition 2 became effective upon adoption. Clearly established rules of statutory construction dictate that, "We must give effect to each provision of a statute so that none is rendered meaningless or mere surplusage." TIC Energy & Chem., Inc. v. Martin , 498 S.W.3d 68, 74 (Tex. 2016). If section 9.005(a) meant that a charter amendment was effective upon adoption, then section 9.005(b) (identifying when a charter amendment becomes effective) would be surplusage. See Surplusage , Black's Law Dictionary (11th ed. 2019) (defining "surplusage" as "[r]edundant words in a statute or legal instrument; language that does not add meaning"). We cannot presume that the Legislature drafted 9.005(b) to identify the date an amendment becomes effective despite already identifying when an amendment becomes effective. See State v. Shumake , 199 S.W.3d 279, 287 (Tex. 2006) ("In construing a statute, we give effect to all its words and, if possible, do not treat any statutory language as mere surplusage."). We also cannot presume the Legislature intended for section 9.005(a) to control effectiveness when it used the word "adopted" in (a) and "effect" in (b). Fitzgerald v. Advanced Spine Fixation Sys., Inc. , 996 S.W.2d 864, 865 (Tex. 1999) ("[I]t is cardinal law in Texas that a court construes a statute, ‘first, by looking to the plain and common meaning of the statute's words.’ If the meaning of the statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by the plain meaning of the provision's words and terms."); Geters v. Eagle Ins. Co. , 834 S.W.2d 49, 50 (Tex. 1992) (per curiam) (courts must apply ordinary meanings). We cannot enlarge the meaning and scope of section 9.005(a) given the reasonable interpretation of the law as it is written. See Monsanto Co. v. Cornerstones Mun. Util. Dist. , 865 S.W.2d 937, 939 (Tex. 1993) ("When applying the ordinary meaning, courts ‘may not by implication enlarge the meaning of any word in the statute beyond its ordinary meaning, and implications from any statutory passage or word are forbidden when the legislative intent may be gathered from a reasonable interpretation of the statute as it is written. ’ ") (quoting Sexton v. Mount Olivet Cemetery Ass'n , 720 S.W.2d 129, 138 (Tex. App.—Austin 1986, writ ref'd n.r.e.) (emphasis in original)); see also Jasek v. Tex. Dep't of Family & Protective Servs. , 348 S.W.3d 523, 535 (Tex. App.—Austin 2011, no pet.) ("A court may not judicially amend a statute and add words that are not implicitly contained in the language of the statute.") (citing Lee v. City of Houston , 807 S.W.2d 290, 295 (Tex. 1991) ). Therefore, we reject the dissent's interpretation of Texas Local Government Code section 9.005(a) to mean Proposition 2 became effective upon adoption.
CONCLUSION
We affirm the trial court's September 16, 2019 summary judgment order.
( Jewell, J., dissenting).
DISSENTING OPINION
Kevin Jewell, Justice
Appellant's lawsuit raises an important question regarding voter-initiated amendments to a home-rule municipality's charter. Under the Local Government Code, a charter amendment approved by a majority of the municipality's qualified voters is "adopted," and the amendment takes effect when declared adopted by the municipality. When a voter-initiated charter amendment has been so approved and so adopted—and declared as such—may a home-rule municipality nevertheless deny effectiveness to that amendment if it did not meet an additional city-imposed vote threshold not otherwise required by statute? Houston voters approved the charter amendments at issue in 2004, and this dispute's meandering but well-documented path through the court system, having so far taken seventeen years, has now yielded an appellate court answer. But I disagree with the answer.
I refer the reader to In re Robinson , 175 S.W.3d 824 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding [mand. granted]) ; White v. Robinson , 260 S.W.3d 463 (Tex. App.—Houston [14th Dist.] 2008), vacated sub. nom. Robinson v. Parker , 353 S.W.3d 753 (Tex. 2011) ; In re Hotze , No. 14-08-00421-CV, 2008 WL 4380228 (Tex. App.—Houston [14th Dist.] July 10, 2008, orig. proceeding) (mem. op.) ; Hotze v. White , No. 01-08-00016-CV, 2010 WL 1493115 (Tex. App.—Houston [1st Dist.] Apr. 15, 2010, pet. denied) (mem. op.); and Turner v. Robinson , 534 S.W.3d 115 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
A. Charter Amendment Process and the Provisions at Issue
The Texas Constitution authorizes cities of a certain population to adopt city charters, subject to such limitations as the Legislature may prescribe. Tex. Const. art. XI, § 5. One such prescription applicable to these "home-rule" cities, which include the City of Houston, relates to amending an existing charter. Under the Local Government Code, a home-rule city charter may be amended either on the city's motion or by citizen-voter initiative. See Tex. Loc. Gov't Code § 9.004(a). When citizens exercise their power to seek amendment, they do so by submitting a petition signed by the requisite number of qualified municipal voters. See id. When presented with a conforming petition, the city's governing body "shall" submit the proposed charter amendment to the voters for their approval at an election. Id. ; see Houston, Tex., City Charter art. VII-b (effective 1913) (amended 1991). The proposed charter amendment is "adopted" if it is approved by majority vote. See Tex. Loc. Gov't Code § 9.005(a). "This form of direct democracy through ‘the power of initiative and referendum, as provided for in the city's charter, is the exercise by the people of a power reserved to them, and not the exercise of a right granted.’ " Turner , 534 S.W.3d at 130 (Busby, J., concurring) (quoting Taxpayers’ Ass'n of Harris Cty. v. City of Houston , 129 Tex. 627, 105 S.W.2d 655, 657 (1937) ).
Before us is the validity and effectiveness of a city charter amendment first proposed by voter-initiated petition, placed on the ballot for approval in November 2004, and approved by a majority of those total voters who cast a vote either for or against that particular amendment. Appellant Bruce R. Hotze, a Houston citizen, participated in the effort to place the proposed charter amendment on the ballot. Robinson , 353 S.W.3d at 754. He signed the petition and voted in favor of the amendment. Id.
The proposed charter amendment was included in a 2004 City of Houston election ordinance under the heading, "Proposition No. 2." It related to "Limits on All Combined City Revenues." It is known by the litigants (and by our appellate courts in Houston) simply as "Proposition 2." Proposition 2 proposed a measure to amend the city charter by adding "a new Section 7 to Article VI-a." The ordinance set forth the proposed amendment's full text. A recitation of its complete language is unnecessary, but the following summary was included on the ballot:
The City Charter of the City of Houston shall be amended to require voter approval before the City may increase total revenues from all sources by more than the combined rates of inflation and population, without requiring any limit of any specific revenue source, including water and sewer revenues, property taxes, sales taxes, fees paid by utilities and developers, user fees, or any other sources of revenues.
Also included in the 2004 election ordinance was a charter amendment proposed on the City's motion. The City's proposed amendment related to "Limits on Annual Increases in City Property Taxes and Utility Rates." The amendment's full text was included in the election ordinance under the heading, "Proposition No. 1." If adopted, the City's proposed amendment would amend the city charter by "amending the first paragraph of Section 1 of Article III and adding a new Section 20 to Article IX." The City's proposed amendment would have granted the City "full authority to assess and collect any and all revenues of the city without limitation, except as to ad valorem taxes and water and sewer rates." The City included the following summary of its proposed charter amendment on the ballot:
The Charter of the City of Houston shall be amended to require voter approval before property tax revenues may be increased in any future fiscal year above a limit measured by the lesser of 4.5% or the cumulative combined rates of inflation and population growth. Water and sewer rates would not increase more than the cumulative combined rates of inflation and population growth without prior voter approval. The Charter Amendment also requires minimum annual increases of 10% in the senior and disabled homestead property tax exemptions through the 2008 tax year.
The election ordinance also contained what this court has referred to as a "poison pill" provision, which the City contends is part of Proposition 1's text. See Turner , 534 S.W.3d at 119. The poison pill provision stated:
If another proposition for a Charter amendment relating to limitations on increases in City revenues is approved at the same election at which this proposition [Proposition 1] is also approved, and if this proposition [Proposition 1] receives the higher number of favorable votes, then this proposition [Proposition 1] shall prevail and the other shall not become effective.
Given its language, the poison pill provision appears designed to allow the City to enforce only its proposed charter amendment contained in Proposition 1 so long as Proposition 1 received more votes than Proposition 2, even if the amendments contained in both Proposition 1 and Proposition 2 were adopted by majority vote.
I will presume the poison pill provision was included in the election ordinance as part of Proposition 1. Interestingly, no similar poison pill provision appeared at the end of Proposition 2's text in the election ordinance.
Viewing the election ordinance as a whole, I construe "Proposition 1" as consisting of two discrete parts: (1) the City's proposed charter amendments to Articles III and IX; and (2) the poison pill provision. I construe "Proposition 2" as consisting solely of the voter-initiated charter amendment to Article VI-a.
Proposition 1 and Proposition 2 passed with a majority of votes cast on each proposition. The charter amendments contained in each proposition, therefore, were "adopted" on November 2, 2004. See Tex. Loc. Gov't Code § 9.004(a) ; In re Robinson , 175 S.W.3d at 829.
Although both Proposition 1 and Proposition 2 passed, Proposition 1 received more favorable votes than Proposition 2. This fact brings us to the disagreement at hand. After the election, the City determined that Proposition 2 is not valid and therefore not enforceable. See Robinson , 353 S.W.3d at 754 ; Turner , 534 S.W.3d at 127. The City based its position on the poison pill provision and on a separate section of the city charter applicable to "inconsistent" charter amendments. According to the City, the respective charter amendments in Proposition 1 and Proposition 2 are "alternatives" to limiting city revenues. The November 2004 ballot, the City urges, presented to voters the opportunity to choose between the City's "single unified plan" on the one hand, and the voter-initiated "single unified plan" on the other. The City insists that the charter amendments in both propositions are incapable of simultaneous administration and are irreconcilably inconsistent. The City has, however, enacted an ordinance declaring that the charter amendments reflected in both propositions "are adopted" (the "Adoption Ordinance.") See Tex. Local Gov't Code § 9.005(b) ("A charter or an amendment does not take effect until the governing body of the municipality enters an order in the records of the municipality declaring that the charter or amendment is adopted."). After the City's passage of the Adoption Ordinance, each charter amendment "became part of the Houston City Charter." Robinson , 353 S.W.3d at 755 ; Turner , 534 S.W.3d at 121 ; Tex. Loc. Gov't Code § 9.005(b). In fact, today, the City's amendments to Articles III and IX proposed in Proposition 1, and the voter-initiated amendments to Article VI-a proposed in Proposition 2, are included in the city charter.
See City Charter, art. IX, § 19. I comment on this part of the City's argument below.
The public was made aware of its opportunity to consider each "plan" as alternatives, the City asserts, by being so informed through the election ordinance and other means. Presumably, part of that educational effort included the language of the poison pill provision itself.
The City and its Mayor resisted even this ministerial act until compelled by mandamus. See In re Robinson , 175 S.W.3d at 830, 832.
The City invites us to take judicial notice of the city charter, and I accept that invitation. See City Charter, available at https://library.municode.com/tx/houston/codes/code_of_ordinances?nodeId=CH.
B. The Arguments
Hotze is one of three plaintiffs who sued the City requesting declaratory and injunctive relief regarding the validity of, and the City's prospective compliance with, the charter amendments included in both propositions. Among other contentions, Hotze claimed that the charter amendment in Proposition 2 is valid notwithstanding the poison pill provision because the poison pill provision is itself invalid. Hotze's argument rests largely, though not exclusively, on article XI, section 5 of the Texas Constitution and Local Government Code section 9.005(a), both applicable to home-rule cities. As our state constitution makes clear, the amendment of home-rule city charters is subject to such limitations the Legislature prescribes, and "no ... ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." Tex. Const. art. XI, § 5.
Local Government Code section 9.005 provides that a proposed amendment to a municipality's charter is adopted if it is approved by a majority vote. See Tex. Loc. Gov't Code § 9.005(a). Hotze contends that the poison pill provision is constitutionally infirm because it conflicts with section 9.005(a). See Tex. Const. art. XI, § 5. For that reason, Hotze argues that the City may not rely on the poison pill provision to deny Proposition 2 the force of law to which it is entitled by virtue of its adoption.
For its part, the City has maintained that only the charter amendments in Proposition 1 shall be effective and that those in Proposition 2 are invalid. Ruling on competing summary judgment motions, the trial court agreed with the City and declared the charter amendments in Proposition 2 ineffective because of the poison pill provision. Principally, it is this ruling that concerns us today and on which I part ways with the majority.
Contrary to the majority's assertion, the "Adoption Ordinance" does not state that "Proposition 1 was legally binding and that Proposition 2 would not be enforced." Maj. Op. at 511. That is a fair summary of the City's practical position; but the Adoption Ordinance itself declares adoption of the charter amendments proposed in both propositions without reference to whether the City intended to treat those in Proposition 2 as a dead letter.
C. Discussion
In part of his third issue, Hotze challenges the trial court's ruling that the charter amendment in Proposition 2 is ineffective because of the poison pill provision. The question is whether the poison pill provision is inconsistent with section 9.005(a). I would hold that it is. My colleagues in the majority conclude otherwise, stating, "because the primacy clause did not prevent adoption of Proposition 2 as part of the city charter, the primacy clause does not violate section 9.005(a)." In my view, the majority misconstrues or misapprehends section 9.005(a) ’s directives by overlooking the legal force attaching to a validly adopted charter amendment. As a result, the majority erroneously permits the City to impose requirements in addition to those in the Local Government Code before a voter-initiated charter amendment can become law.
I pause briefly to comment on a waiver argument the City advances. The City says Hotze abandoned his constitutional challenge to the poison pill provision in the trial court. By not explicitly addressing the argument, I presume the majority has rejected it. I agree, as Hotze raised the issue in, among other places, his motion for summary judgment.
The City of Houston is a home-rule city, deriving its power from article XI, section 5 of the Texas Constitution. Tex. Const. art. XI, § 5 ; S. Crushed Concrete, LLC v. City of Houston , 398 S.W.3d 676, 678 (Tex. 2013). Home-rule cities possess the full power of self-government and look to the Legislature not for grants of power, but only for limitations on their powers. Lower Colo. River Auth. v. City of San Marcos , 523 S.W.2d 641, 643 (Tex. 1975) (citing Forwood v. City of Taylor , 147 Tex. 161, 214 S.W.2d 282 (1948) ). The present dispute turns on one such limitation: a home-rule city cannot enact an ordinance containing a provision inconsistent with Texas's constitution or general laws. See Tex. Const. art. XI, § 5 (a); see also BCCA Appeal Grp., Inc. v. City of Houston , 496 S.W.3d 1, 7 (Tex. 2016). A home-rule city ordinance is thus unenforceable to the extent that it irreconcilably conflicts with a state statute. See BCCA Appeal Grp. , 496 S.W.3d at 7 ; Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas , 852 S.W.2d 489, 491 (Tex. 1993). A general law and a city ordinance, however, "will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached." City of Beaumont v. Fall , 116 Tex. 314, 291 S.W. 202, 206 (Tex. 1927).
Though article XI, section 5 is plain enough, other constitutional provisions similarly circumscribe the "power of suspending laws in this State" to the Legislature alone. Tex. Const. art. I, § 28 ; City of Baytown v. Angel , 469 S.W.2d 923, 925 (Tex. App.—Houston [14th Dist.] 1971, writ ref'd n.r.e.). As this court observed in City of Baytown , the supreme court has interpreted article I, section 28 as "applicable to municipal ordinances conflicting with state statutes." Angel , 469 S.W.2d at 925 (citing Brown Cracker & Candy Co. v. City of Dallas , 104 Tex. 290, 137 S.W. 342, 343 (1911) ).
Local Government Code section 9.005 states:
(a) A proposed charter for a municipality or a proposed amendment to a municipality's charter is adopted if it is approved by a majority of the qualified voters of the municipality who vote at an election held for that purpose.
Tex. Loc. Gov't Code § 9.005(a). The parties do not appear to contest this section's meaning. Whether a charter amendment has been "adopted" is determined by examining the votes cast for or against it, irrespective of the total number of votes that may have been cast in the election. In re Robinson , 175 S.W.3d at 827 n.1 ; Ladd v. Yett , 273 S.W. 1006, 1011 (Tex. App.—Austin 1925, writ dism'd w.o.j.).
The respective charter amendments proposed in Proposition 1 and Proposition 2 were adopted on November 2, 2004, and became "effective" May 4, 2005, when the City declared by ordinance both propositions adopted. See Tex. Loc. Gov't Code § 9.005(a), (b). Consequently, both charter amendments became part of the city charter and thus carry the force of law. See Tex. Elec. Code § 1.005(10) (" ‘Law’ means a constitution, statute, city charter , or city ordinance.") (emphasis added); In re Petricek , 629 S.W.3d 913, 918 (Tex. Sept. 1, 2021) (orig. proceeding). Any part of any municipal ordinance purporting to deny effectiveness to a charter amendment that has been approved by a majority of the municipality's qualified voters, and hence adopted, is unenforceable. Tex. Const. art. XI, § 5 ; see Minella v. City of San Antonio , 437 F.3d 438, 440 (5th Cir. 2005) (citing Dallas Merchant's , 852 S.W.2d at 491 ).
The poison pill provision is contained in a municipal ordinance. It purports to deny effectiveness to charter amendments reflected in Proposition 2, adopted by a majority of qualified Houston voters, and now effective as part of the city charter. If the poison pill provision were allowed to stand, the result would make ineffective that which the Legislature has declared effective by operation of Local Government Code section 9.005(a). Because the poison pill provision denies effectiveness to a home-rule city charter amendment that has been adopted and has become "law," it cannot be read in harmony with section 9.005(a). Thus, the poison pill provision is unenforceable and must yield. See Tex. Const. art. XI, § 5 ("no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State"); City of Wink v. Griffith Amusement Co. , 129 Tex. 40, 100 S.W.2d 695, 698 (1936) ("The rule is definitely established ... that ordinances in conflict with the general or state law are void."); City of Cleveland v. Keep Cleveland Safe , 500 S.W.3d 438, 448 (Tex. App.—Beaumont 2016, no pet.) (city charter "cannot be inconsistent with the Constitution of the State and general laws of the State"); City of Anahuac v. Morris , 484 S.W.3d 176, 181 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) ; City of Wichita Falls v. Abell , 566 S.W.3d 336, 339 (Tex. App.—Fort Worth 1978, writ ref'd n.r.e.) ; see also Tex. Att'y Gen. Op. GA-0433 (2006) ("[m]unicipal laws inconsistent with state law are void ab initio"). I would hold that the poison pill provision contained in the election ordinance conflicts irreconcilably with section 9.005 and therefore is unconstitutional and void.
I reach this conclusion properly viewing Local Government Code chapter 9 as a limiting statute. Home-rule cities possess the full power of self-government and look to the Legislature only for limitations on their powers. Lower Colo. River Auth. , 523 S.W.2d at 643. Chapter 9 applies to the "amendment of a municipal charter by a municipality authorized to do so by Article XI, Section 5, of the Texas Constitution." Tex. Loc. Gov't Code § 9.001. In the home-rule context, the power of qualified voters to seek a charter amendment independent from the city's governing body enjoys express approbation. Id. § 9.004(a) ("The governing body shall submit a proposed charter amendment to the voters for their approval at an election if the submission is supported by a petition signed by a number of qualified voters of the municipality ....") (emphasis added). As the Legislature's use of the word "shall" denotes a "duty," section 9.004(a) clearly limits a municipality's power to interfere with voter-initiated charter amendments. According to the City, the poison pill provision precludes enforcement of the voter-adopted amendments to Article VI-a. Its understanding of the provision, however, is inconsistent with the Local Government Code.
The inconsistency between the poison pill provision and section 9.005(a) is even more apparent considering the Legislature's presumptive intent behind the Local Government Code. Tex. Gov't Code §§ 311.001, 311.021 (Code Construction Act). We presume, for example, a statute is effective in its entirety. Id. § 311.021(2). The poison pill provision, the City says, forecloses enforcement of the voter-initiated charter amendments in Proposition 2, despite their approval, adoption, and effectiveness under Local Government Code section 9.005(a) and the Adoption Ordinance. As the City would have it, the voters’ adoption of the charter amendments contained in Proposition 2 under section 9.005(a) is meaningless. Thus, the poison pill provision, if applied, would deny completely section 9.005(a) ’s intended effect and object. See id. § 311.023(1), (5).
Together with a presumption of effectiveness, we presume the Legislature's intended result is just, reasonable, and feasible of execution. Id. § 311.021(3), (4). The City's position, and the majority's holding, frustrate these goals. Section 9.004(a) reflects a special emphasis on voter-initiated charter amendments. Whether such a proposed amendment (or any proposed amendment) becomes law turns on—and only on—whether it receives a majority vote by those qualified municipal voters who vote either for or against the amendment. See Tex. Loc. Gov't Code § 9.005(a) ; Ladd , 273 S.W. at 1011. A municipality's unilateral requirement that the proposed amendment, even if approved by majority vote, must also garner more votes than a "competing" or "alternative" charter amendment preferred by the city's governing body imposes an additional "approval" threshold extrinsic to, and inconsistent with, the Legislature's design. Suppose the proposed charter amendments in Proposition 1 and Proposition 2 passed with 90% approval, but Proposition 1 received 1,000,001 votes and Proposition 2 received only 1,000,000. According to the City's argument, the voter-initiated amendments in Proposition 2 would never become law despite the Legislature's contrary intent as exemplified in section 9.005 and despite overwhelming voter approval. The power of home-rule city voters to amend their charters is supposed to be feasible of execution; but, under the City's blueprint, a home-rule city's governing body could attempt to substantially diminish that power, and ultimately defeat it through effective veto, by attaching "poison pills," "primacy clauses," or like provisions to its "alternative" proposed amendments, including ones that, like these, are not "irreconcilably or substantively inconsistent" with voter-proposed amendments. See Minella , 437 F.3d at 441 (applying similar rationale to section 9.005(b) ). When a city inserts such provisions into an election ordinance, the voter-initiated charter amendment election process potentially becomes a "vain proceeding" because any voter-proposed amendment approved by majority vote and adopted by the City would, contrary to section 9.005, never become law if it did not also receive more votes than some other measure proposed by the City and approved. See In re Robinson , 175 S.W.3d at 828 (citing City of Dallas v. Dallas Consol. Elec. St. Ry. Co. , 105 Tex. 337, 148 S.W. 292, 294 (1912) ). A home-rule city's governing body is not required to like every voter-initiated charter amendment, but it is required to present any such proposed amendment to the voters, and to implement the measure in accordance with valid election results, consistent with due process and state law. I would not interpret section 9.005(a) as affording the Houston City Council the opportunity to frustrate the voters’ will by imposing other requirements designed to control whether a charter amendment that has been adopted by majority vote is denied the force of law. See In re Robinson , 175 S.W.3d at 831 (applying similar reasoning to section 9.005(b) ). The majority errs by interpreting section 9.005(a) otherwise.
While an adopted charter amendment does not "take effect" until the city passes an ordinance declaring the amendment is adopted, see Tex. Loc. Gov't Code § 9.005(b), that action—which occurred here—is ministerial and may be compelled by mandamus. In re Robinson , 175 S.W.3d at 828.
I agree with the trial court that the proposed amendments in Proposition 1 and Proposition 2 are not inconsistent, and thus Article IX, Section 19, of the city charter is not invoked. For that reason, I would not address the City's issue raised in its cross-appeal.
To be clear, my view of the poison pill provision's inconsistency with section 9.005(a) would be the same even if the voter-initiated amendments in Proposition 2 received more votes than the City amendments in Proposition 1, so long as both propositions passed by majority vote. By its terms, the poison pill provision does not apply unless both proposed charter amendments receive a majority of votes at the election.
I conclude with a final observation. The poison pill provision, though included in the election ordinance and approved by a majority of the voters, was not itself part of the City's proposed "charter amendment" and was, the City concedes, "never intended to be included in the Charter permanently." Unlike the charter amendments approved as proposed in Proposition 1 and Proposition 2, the poison pill provision does not appear in the city charter. As the poison pill provision was never a "proposed amendment" to the charter, sections 9.004 and 9.005 do not apply to that provision as they apply to the charter amendments. This is true even if the poison pill provision was assumed by voters to have been submitted to them as part of the proposed "charter amendment." See Zane-Cetti v. City of Fort Worth , 269 S.W. 130, 133 (Tex. App.—Austin 1924), aff'd , 278 S.W. 183 (Tex. Comm'n App. 1925) (stating tax increase proposition was not "charter amendment" as contemplated by article XI, section 5, even though presented to voters as such).
The charter amendment contained in Proposition 2 either is effective or it is not. Applying the Local Government Code, it must be effective as law because it was adopted by majority vote and declared adopted by the City. There can be no other legal conclusion without violating state law. Once adopted, a charter amendment, having force of law under the Local Government Code, cannot be denied effectiveness by the type of municipal action attempted here. As the poison pill provision supporting the municipal act in question conflicts with state law, it cannot stand. I would therefore hold the poison pill provision violates section 9.005(a) because it purports to deny effectiveness to a charter amendment that was approved by a majority of voters and was adopted as law. For that reason, the poison pill provision runs afoul of article XI, section 5 of the Texas Constitution.
My colleagues in the majority construe my opinion as presuming that the charter amendments "must be given effectiveness" upon "adoption", and they commit extended discussion to that point. Maj. Op. at 517–18. A plain reading of my opinion reveals I engage no such presumption. To the extent my position was not clear, I direct the reader to the preceding paragraphs, supra , where I stated, "[t]he respective charter amendments proposed in Proposition 1 and Proposition 2 were adopted on November 2, 2004, and became ‘effective’ May 4, 2005, when the City declared by ordinance both propositions adopted", and where I stated that the charter amendment in Proposition 2 "must be effective as law because it was adopted by majority vote and declared adopted by the City." I recognize the statutory distinction between when a charter amendment is adopted (section 9.005(a) ) and when it takes "effect" (section 9.005(b) ). That distinction, however, has little bearing on this particular case because all agree that the charter amendments in both propositions were adopted and were declared adopted by the City. The City has thus attempted to deny effectiveness to a charter amendment that was adopted consistent with section 9.005(a) and declared adopted consistent with section 9.005(b). The charter amendment is therefore law, and the City may not rely on the poison pill provision to deny effectiveness to such an amendment.
As it is unnecessary to do so in the context of this dissent, I express no opinion at this time on Hotze's arguments in his fourth issue that the City's budget ordinances for fiscal years 2011 through 2019 violate as a matter of law Article VI-a, Section 7 of the city charter.