                                                                                            ACCEPTED
                                                                                        01-15-00687-CV
                                                                             FIRST COURT OF APPEALS
                                                                                     HOUSTON, TEXAS
                                                                                   9/1/2015 11:37:43 AM
                                                                                  CHRISTOPHER PRINE
                                                                                                 CLERK



                         No. 01-15-00687-CV
                 _________________________________       FILED IN
                                                   1st COURT OF APPEALS
                  IN THE COURT OF APPEALS FOR          HOUSTON, TEXAS
          THE FIRST SUPREME JUDICIAL DISTRICT OF 9/1/2015
                                                   TEXAS11:37:43 AM
                 _________________________________ CHRISTOPHER A. PRINE
                                                                     Clerk

            Annise D. Parker, Mayor, Anna Russell, City Secretary,
                              and City of Houston
                                      vs.
                                David B. Wilson
                   _________________________________

                      Trial Court Number 2015-39706
                 270th District Court of Harris County, Texas
                 ____________________________________
                    REPLY TO RESPONSE TO NOTICE
             TO SHOW COURT’S APPELLATE JURISDICTION
               ________________________________________



James D. Pierce
SBN 15994500
1 Sugar Creek Center 1080
Sugar Land, TX 77478
713-650-0150
jim@jamespierce.com
Attorney for Realtor
David B. Wilson




                                   Page -1-
                   IDENTITY OF PARTIES AND COUNSEL

      For the sake of simplicity the parties are sometimes referred by their name.
The following is a complete list of all the parties and their attorneys.

Appellee                                Appellants

David B. Wilson                         Annise D. Parker, Mayor, Anna Russell,
                                        City Secretary, and City of Houston

Attorney:                               Attorneys
                                        Donna Edmundson City Attorney
Mr. James D. Pierce                     Judith L. Ramsey Chief, General
SBN: 06702350                           Litigation Section
Attorney At Law                         Kathleen Hopkins
1 Sugar Creek Center 1080               Alsina Senior Assistant City Attorney
Sugar Land, TX 77478                    State Bar No. 09977050
713-650-0150                             Patricia L. Casey Senior Assistant City
713-650-0146 Fax                        Attorney
                                        State Bar No. 03959075 CITY OF
                                        HOUSTON LEGAL DEPARTMENT 900
                                        Bagby, Fourth Floor Houston, Texas
                                        77002 832.393.6491 (Telephone)
                                        832.393.6259 (Facsimile)
                                        kate.alsina@houstontx.gov
                                        pat.casey@houstontx.gov




                                      Page -2-
                          STATEMENT OF THE CASE

        This is an appeal of an interlocutory order granting a writ of mandamus

compelling one of the Appellee’s Anna Russell, City Secretary, to comply with

ministerial duties to count and certify the petitions presented by over 22,000 voters

for a proposed amendment to Houston's City Charter. See Notice of Interlocutory

Appeal filed on or about August 12, 2015. On August 19, 2015, this Court

questioned its jurisdiction and required a written response from Appellants within 10

days.




                                      Page -3-
                         ARGUMENT & AUTHORITIES

      Does a Texas Court of Appeals have appellate jurisdiction of an interlocutory

order of mandamus issued by a trial court? The order of the trial court (attached to

the notice of appeal) was not an temporary injunction, it was an order granting a writ

of mandamus. As stated by this Court in its August 19, 2015 order:

             This Court generally has jurisdiction only over appeals
             from final judgments unless a statute authorizes an
             interlocutory appeal.

citing, See CMH Homes v. Perez, 340 S.W.3d 444, 447–48 (Tex. 2011); Paulsen v.

Yarrell, 455 S.W.3d 192, 195 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing

Rusk State Hosp. v. Black, 392 S.W.3d 88, 92 (Tex. 2012)); see also, e.g., Tex. Civ.

Prac. & Rem. Code Ann. § 51.014 (West 2015) (authorizing appeals from certain

interlocutory orders). (Appendix 2). No statutory basis exists for reviewing an

interlocutory mandamus order by appeal.

      A writ of mandamus will issue to compel a public official to perform a

ministerial act. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).

A writ of injunction is governed by Chapter 65 of the Texas Civil Practice &

Remedies Code and requires balancing equities. The Texas Legislature permits

interlocutory appeals of temporary injunctions, but makes no allowance for

interlocutory appeals of mandamus orders. Tex. Civ. Pract. & Rem. Code Ann. §

                                       Page -4-
51.014 (4) (West 2015). The historic difference between the two writs is well

documented. See generally, Howard W. Brill, The Citizen's Relief Against Inactive

Federal Officials: Case Studies in Mandamus, Actions "In the Nature of Mandamus,"

and Mandatory Injunctions, 16 Akron Law Review 339 (1983).1 The courts strictly

construe statutes that allow interlocutory appeals. Bally Total Fitness Corp. v.

Jackson, 53 S.W.3d 352 (Tex. 2001). The Appellants place reliance upon Qwest

Communications Corp. v. AT&T Corp., 24 S.W.3d 334, 338 (Tex. 2000). Quest was

a temporary injunction case in which the court entered an order based upon agreement

that purported to settle an application for temporary injunction. Id., at 335. In fact,

the trial court in that Quest stated “[w]ith respect to the plaintiff’s application for

termporary injunction, judgment is rendered.” Id. The Texas Supreme Court

concluded that in character and function of the order was a temporary injunction.

However, no alternative writ or remedy, such as a writ of mandamus, could describe

the Quest trial court’s order. Quest does not support this Court’s exercise of

interlocutory jurisdiction.    This Court was correct in questioning its jurisdiction as

appellate jurisdiction is lacking. The appeal should be dismissed.




1. Available at: https://www.uakron.edu/dotAsset/24c1be43-1c6a-49f2-899f-d03fac60cd30.pdf).

                                         Page -5-
                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellee prays that the Appeal

be Dismissed, and for such other and further relief as is just.

                                        Respectfully submitted,

                                        ___/S/James D. Pierce________
                                         James D. Pierce(15994500)

                                        1 Sugar Creek Center Suite 1080
                                        Sugar Land, TX 77478
                                        (713) 650-0150
                                        jim@jamespierce.com

                                        Attorney for Appellee
                                        David B. Wilson




                                        Page -6-
                          CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing brief has been
served on the below listed counsel of record this 1st day of September, 2015 through
the Court’s Electronic Filing System.

Respondents
Annise D. Parker, Mayor, Anna Russell, City Secretary, and City of Houston

Attorneys
Donna Edmundson City Attorney
Judith L. Ramsey Chief, General Litigation Section
Kathleen Hopkins
Alsina Senior Assistant City Attorney State Bar No. 09977050
 Patricia L. Casey Senior Assistant City Attorney
State Bar No. 03959075 CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby,
Fourth Floor Houston, Texas 77002 832.393.6491 (Telephone) 832.393.6259
(Facsimile) kate.alsina@houstontx.gov pat.casey@houstontx.gov


                                       ___/S/James D. Pierce________
                                       James D. Pierce




                                      Page -7-
