                                              OPINION
                                         No. 04-10-00293-CV

                                       Michael R. MORTON,
                                             Appellant

                                                   v.

 CITY OF BOERNE, Texas and Dan Heckler, Jacques DuBose, Jeff Haberstroh, Rob Ziegler,
            Ron Warden, and Bob Manning, in their Official Capacities,
                                  Appellees

                    From the 216th Judicial District Court, Kendall County, Texas
                                      Trial Court No. 10-102
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Catherine Stone, Chief Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: February 2, 2011

AFFIRMED

           Michael R. Morton appeals the trial court’s judgment dismissing his suit against the City

of Boerne, its mayor, and council members (jointly referred to as “the City”) for want of

jurisdiction. We affirm.

                                              BACKGROUND

           The City of Boerne was established as a home-rule municipality in 1995, and its home-

rule charter was approved by voters. The charter provides for five council members to be elected
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at large, by place, and by a plurality vote for two-year terms. The charter also requires that

amendments to the charter be adopted in accordance with State law. Article XI, section 5 of the

Texas Constitution and sections 9.004 and 9.005 of the Texas Government Code provide that the

charter may be amended only after a majority vote of the qualified voters in the city.

       In August 1996, the League of United Latin American Citizens (“LULAC”) sued the City

in federal district court, alleging that the method of electing council members unlawfully diluted

the voting strength of minority voters. The complaint alleged violations of the Fourteenth and

Fifteenth Amendments to the United States Constitution and of the federal Voting Rights Act.

The parties settled, and the City agreed to modify its system for electing council members to

provide for at-large cumulative voting, not by place. On December 26, 1996, the federal district

court ordered the provisions of the settlement agreement “be implemented as the order and

judgment of” the court and dismissed the case with prejudice.            The Justice Department

precleared the election change and the City implemented cumulative voting in 1997. The city

charter was not amended to reflect the change in voting method. The cumulative voting method

for electing Boerne city council members continued in effect until 2010.

       On December 2, 2009, the Boerne city council held a special meeting to consider

(1) eliminating cumulative voting and creating five single-member districts for electing council

members; (2) authorizing a joint motion to reopen the federal voting rights case; (3) authorizing

a modified settlement agreement in the voting rights case; and (4) passing, on a one-time

reading, a city ordinance establishing and approving single-member voting districts for election

of council members. A public hearing was held on the first issue, during which appellant

Michael Morton argued the matter should be put for a vote on a charter amendment. The city

council voted to authorize a joint motion to reopen the federal case and modify the compromise



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settlement agreement. The council also voted to pass, on a one-time reading, a city ordinance

establishing single-member districts.

       On December 9, 2009, the City and LULAC filed a joint motion to reopen the federal

case and to modify the compromise settlement agreement. The motion alleged that when the

1996 complaint was filed, LULAC believed “that either a single member electoral district system

or a cumulative voting system would ensure a city council of members whose election would not

cancel out, minimize or dilute the voting strength of minority voters.” It further alleged that

“[t]he cumulative voting system has failed to produce the results desired by either LULAC or the

CITY.” The modified compromise settlement agreement set forth in detail a plan for elections of

city council members using single-member districts, and required the City to seek preclearance

from the Department of Justice. It further provided that all city elections are to “be conducted in

compliance with the relevant provisions of the City of Boerne City Charter, except where those

provisions are in conflict with this agreement and subsequent Court Order approving same.”

       On December 10, 2009, the federal judge signed an order reopening the original federal

case, ordering that the provisions of the modified compromise settlement agreement be

implemented, and ordering the parties to submit a joint motion to dismiss “upon completion of

all steps necessary to implement the single member district electoral process for election of

members to the Boerne City Council.” After the plan was precleared by the Department of

Justice, the City and LULAC filed a joint motion to dismiss the federal case. On April 19, 2010,

the federal court signed an order dismissing the cause with prejudice and ordering “that the

provisions of the Modified Compromise Settlement Agreement pertaining to the elective process

in the City of Boerne … be implemented as the order and judgment of this Court in this case.”

Morton, who had unsuccessfully sought to intervene in the federal case, appealed both the denial



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of his motion to intervene and the final order to the Fifth Circuit. The appeals have been

consolidated and are pending on that court’s docket.

       Morton filed this suit in state district court on February 25, 2010. The petition alleged

that by passing the ordinance and authorizing the motion to reopen the federal case, the City

effectively amended the city charter without voter approval, in violation of the Texas

Constitution and the Texas Local Government Code. Morton alleged that as a citizen and

resident of the City of Boerne, he was illegally denied his right to participate in the democratic

process and his right to determine how city council members will be elected. Morton sought a

declaration that the defendants violated article XI, section 5 of the Texas Constitution and

sections 9.004 and 9.005 of the Texas Local Government Code “by refusing to present the

proposed effective amendment of Boerne’s charter to the qualified voters of Boerne.” He further

sought an injunction requiring the City to conduct city council elections on an at-large basis and

ordering the City to withdraw its then-pending request to the Department of Justice for

preclearance of the single-member district plan. The City argued, among other things, that the

suit was an impermissible collateral attack on a federal court judgment, any declaratory judgment

would be advisory, and the state court lacked subject matter jurisdiction over the case. The trial

court denied Morton’s application for a temporary injunction, and the court subsequently signed

an order dismissing the suit for want of jurisdiction. Morton appealed.

                                          DISCUSSION

       A federal court judgment that determines a right under a federal statute is “‘final until

reversed in an appellate court, or modified or set aside in the court of its rendition.’” Stoll v.

Gottlieb, 305 U.S. 165, 170 (1938) (quoting Deposit Bank v. Frankfort, 191 U.S. 499, 520

(1903)). “The full faith and credit clause of the United States Constitution requires that federal



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court orders be enforced by Texas courts,” and a party “may not use the state courts for a

collateral attack on [a federal court] judgment.” Bexar Metro. Water Dist. v. City of San

Antonio, 228 S.W.3d 887, 895 (Tex. App.—Austin 2007, no pet.); see Nat’l R.R. Passenger

Corp. v. Penn. Pub. Util. Comm’n, 342 F.3d 242, 259-60 (3d Cir. 2003) (state court may not

issue order that nullifies federal consent decree).

       The 2010 federal judgment requires the City to elect its council members through single-

member districts. Morton’s complaints concerning the manner in which the federal case was

reopened and the judgment was obtained, and the lack of any allegations or findings in that case

regarding Voting Rights Act violations are all issues that directly attack the federal judgment and

must be addressed in the federal court. As long as the 2010 federal judgment has not been

reversed by an appellate court or modified or set aside in the court of its rendition, a state court

may not grant relief that requires the City to obtain voter approval as a prerequisite to electing

council members using single-member districts. See Bexar Met., 228 S.W.3d at 895.

       Morton argues he does not seek an order that nullifies or has any effect on the federal

court decree. Rather, he contends his “suit challenges the validity, under state law of Boerne’s

ordinance, which has force and effect entirely independent of the federal court’s judgment”

because (1) the City was not under a federal court order to implement single-member districts

when it passed the ordinance and (2) the ordinance will remain in place even if the 2010 federal

judgment is vacated. Morton seeks a declaration that “the city’s actions were void ab initio and

that he has the legal right, under state law, to vote on a change to Boerne’s voting structure.”

       Morton correctly asserts that a state district court has subject matter jurisdiction over a

declaratory judgment action to determine the validity of a city ordinance. See TEX. CIV. PRAC. &

REM. CODE ANN. § 37.001 et seq. (West 2008). However, for the district court to have “the



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power, authority and jurisdiction” under the Texas Constitution to entertain the action, there

must be “‘a real controversy between the parties, which . . . will be actually determined by the

judicial declaration sought.’” United Servs. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 860 (Tex.

1965) (quoting Bd. of Water Eng’rs v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722, 724

(1955)). The separation of powers article in the Texas Constitution prohibits the judiciary from

rendering advisory opinions. Patterson v. Planned Parenthood of Houston and Se. Tex., Inc.,

971 S.W.2d 439, 442-43 (Tex. 1998). A court may not issue an opinion on a matter that is moot

or one that is not yet ripe. Id. “A case is not ripe when its resolution depends on contingent or

hypothetical facts, or upon events that have not yet come to pass.” Id. at 443.

       Morton’s complaint that the ordinance was passed without voter approval at a time when

no federal court order required a change in the voting method became moot when the case was

reopened, the federal court ordered the City to implement single-member districts, and the

Department of Justice precleared the plan. See City of Shoreacres v. Tex. Comm’n on Envtl.

Quality, 166 S.W.3d 825, 838 (Tex. App.—Austin 2005, no pet.) (holding suit for declaration

state agency violated statutes when issuing certification that federal permit would comply with

Texas water quality standards became moot when federal permit issued because requested relief

would have no practical legal effect on controversy between parties); Pantera Energy Co. v. R.R.

Comm’n of Tex., 150 S.W.3d 466, 471 (Tex. App.—Austin 2004, no pet.) (a live controversy

must exist between parties at every stage of legal proceedings; when one seeks judgment on

matter which, when rendered, cannot have practical legal effect on a then-existing controversy,

case is moot and court lacks jurisdiction). Morton’s argument that the allegedly unconstitutional

ordinance will remain in effect should the 2010 federal judgment be vacated is not ripe. As long

as the 2010 federal judgment is in effect, the state district court could not render an enforceable



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judgment requiring that the issue of single-member districts be submitted to the voters of the

City of Boerne or prohibiting the election of city council members by use of single-member

districts. Any declaration by the state district court that the ordinance is void or that Morton’s

right to vote was violated by its enactment would not result in any change in the manner in which

Boerne city council members are elected, nor would it result in a vote on a charter amendment.

Any such declaration would therefore be advisory and would not resolve or actually determine

the dispute. Accordingly, the trial court correctly dismissed the case for want of jurisdiction.

See Patterson, 971 S.W.2d at 444; City of Shoreacres, 166 S.W.3d at 838; Delaney, 396 S.W.2d

at 864. 1

         The judgment of the trial court is therefore affirmed.



                                                          Steven C. Hilbig, Justice




         1
          The City argues, alternatively, that the trial court properly dismissed Morton’s suit because Morton lacked
standing to challenge the ordinance. Because of our disposition of the appeal, we do not decide whether Morton
would have standing to pursue this action in the event it were to become ripe.

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