                                                                                 ACCEPTED
                                                                             01-15-00687-CV
                                                                  FIRST COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                        8/28/2015 5:15:06 PM
                                                                       CHRISTOPHER PRINE
                                                                                      CLERK


                      No. 01-15-00687-CV
          _______________________________________________
                                                            FILED IN
                                                     1st COURT OF APPEALS
                   In the Court of Appeals for the       HOUSTON, TEXAS
                  First District of Texas at Houston 8/28/2015 5:15:06 PM
          _______________________________________________
                                                     CHRISTOPHER A. PRINE
                                                             Clerk

              ANNISE D. PARKER, MAYOR, ANNA RUSSELL,
               CITY SECRETARY, AND CITY OF HOUSTON,
                                                  Appellants,
                                 V.


                            DAVID B. WILSON,
                                                      Appellee.
          _______________________________________________

          On Appeal from the 270th Judicial District Court
                        Harris County, Texas
                  Trial Court Case No. 2015-39706
  ______________________________________________________________

        Response to Notice to Show Court’s Jurisdiction
  ______________________________________________________________

DONNA L. EDMUNDSON                Kathleen Hopkins Alsina
City Attorney                     Senior Assistant City Attorney
                                  State Bar No. 09977050
JUDITH L. RAMSEY                  Patricia L. Casey
Chief, General Litigation         Senior Assistant City Attorney
Section                           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

                       Attorneys for Appellants
                                       Table of Contents

                                                                                                   Page

Index of Authorities..................................................................................iii

Background................................................................................................ 1

Argument and Authority........................................................................... 5

I.      The July 28 Order is a mandatory temporary injunction. .............. 5

II.     A suit for a writ of mandamus, alone, does not entitle a
        plaintiff to an immediate mandatory injunction. ............................ 9

III.    This appeal is controlled by Qwest. ............................................... 12

Certificate of Compliance ........................................................................ 16

Certificate of Service ............................................................................... 16




                                                     ii
                                      Index of Authorities

                                                                                                  Page(s)

Cases

Anderson v. City of Seven Points,
  806 S.W.2d 791 (Tex. 1991) .................................................................. 9

Bd. of Prison Comm’rs v. Binford,
  259 S.W. 169 (Tex. Civ. App.—Galveston 1924, no writ) .................. 11

Brines v. McIlhaney,
  596 S.W.2d 519 (Tex.1980) ................................................................... 7

City of Houston v. Downstream Envtl., L.L.C.,
   No. 01-13-01015-CV, 2014 WL 5500486 (Tex. App.—Houston
   [1st Dist.] Oct. 30, 2014, pet. abated) ............................................. 8, 14

CMH Homes v. Perez,
  340 S.W.3d 444 (Tex. 2011) .................................................................. 6

Del Valle Indep. Sch. Dist. v. Lopez,
  845 S.W.2d 808 (Tex.1992) ................................................................... 7

Griffin v. Wakelee,
  42 Tex. 513 (1874) ........................................................................... 9, 10

Helix Energy Solutions Grp. v. Howard,
  452 S.W.3d 40 (Tex. App.—Houston [14th Dist.] 2014,
  no pet.)................................................................................. 8, 11, 12, 14

In re Hardwick,
   426 S.W.3d 151 (Tex. App.—Houston [1st Dist.] 2012,
   no pet.)......................................................................................... 6, 7, 11

In Re Woodfill,
   --- S.W.3d ---, 2015 WL 4498229 (Tex. July 24, 2015) (per
   curiam) .................................................................................................. 2


                                                      iii
Peeples v. Nagel, 137 S.W.2d 1064 (Tex. Civ. App.—Galveston
  1940, writ dism’d judgm’t cor.) ........................................................... 11

Plant Process Equip., Inc. v. Harris,
  579 S.W.2d 53 (Tex. Civ. App.—Houston [14th Dist.] 1979,
  no writ) .............................................................................................. 8, 9

Qwest Commc’ns Corp. v. AT&T Corp.,
  24 S.W.3d 334 (Tex. 2000) .................................................... 6, 7, 13, 14

Rusk State Hosp. v. Black,
  392 S.W.3d 88 (Tex. 2012) .................................................................... 5

Tobin v. Serna,
  277 S.W. 2d 176 (Tex. App.—San Antonio 1955, writ ref’d) .............. 11

Wyly v. Pres. Dallas,
  165 S.W.3d 460 (Tex. App.—Dallas 2005, no pet.) ...................... 11, 13


Statutes

Tex. Civ. Prac. & Rem. Code § 6.002 ........................................................ 5

Tex. Civ. Prac. & Rem. Code § 51.014 ............................................ 5, 6, 12


Other Authorities

City of Houston Charter, Chapter VII-a § 2 ............................................. 3

City of Houston Charter, Chapter VII-a § 3 ............................................. 3

City of Houston Charter, Chapter VII-b § 2(a) ......................................... 3

Tex. R. App. P. 29.2 ................................................................................... 5

Tex. R. Civ. P. 680 ................................................................................... 11

Tex. R. Civ. P. 687 ............................................................................... 6, 13

Tex. R. Civ. P. 694 ..................................................................................... 9

                                                     iv
      The Appellants, Annise D. Parker, Mayor, Anna Russell, City

Secretary, and City of Houston (together “the City”) respectfully file this

response to the Court’s Notice of August 19, 2015 requesting briefing on

the question of the court’s jurisdiction over the interlocutory order of

July 28, 2015.


                               Background

      On May 28, 2014, the Houston City Council voted to pass

Ordinance No. 2014-530, known as the Houston Equal Rights

Ordinance, also referred to as “HERO.” The equal rights ordinance

prohibits discrimination based on an individual’s sex, race, color,

ethnicity, national origin, age, familial status, marital status, religion,

disability, sexual orientation, genetic information, gender identity, or

pregnancy in city contracts, public accommodations, private employment

(excluding religious organizations), city services, city employment and

housing. R.0114-31.1 The Texas Supreme Court has ordered that the

equal rights ordinance be submitted to the voters of the City of Houston


1 The Clerk’s Record in this appeal has not yet been filed. However, in their
Response to Wilson’s Motion to Dismiss Appeal filed August 14, 2015, Appellants
attached bates-stamped certified copies of the documents referenced in their
Response and cite to them as R.__ [bates number]. Those bates-stamped documents
can be found in the Appendix to Appellants’ August 14, 2015 Response.
in the November 2015 election. In Re Woodfill, --- S.W.3d ---, 2015 WL

4498229 (Tex. July 24, 2015) (per curiam).

         The equal rights ordinance was officially published on June 3,

2014. The only place in the City Code of Ordinances where “gender

identity” is defined is in the equal rights ordinance. There is no

definition of or reference to “gender identity” in the Houston City

Charter.

         The equal rights ordinance was the subject of a timely-filed

petition for a referendum to repeal the ordinance, which eventually was

the subject of a jury trial2 and a petition for writ of mandamus to the

Texas Supreme Court.3 During the same time period, Wilson was

circulating his own separate petitions for a definition of “gender

identity” that was contrary to the definition in the equal rights

ordinance. R.0028. Wilson’s goal was obvious—to repeal the part of the

equal rights ordinance that defines “gender identity.”

         On July 9, 2015, over a year after the equal rights ordinance was

adopted, Wilson finally presented his petition to the City Secretary.

2Woodfill, et al. v. Anna Russell, City Secretary, et al., No. 2014-44974, in the 152nd
District Court, Harris County, Texas.
3   In re Woodfill, --- S.W.3d ---, 2015 WL 4498229 (Tex. July 24, 2015).


                                            2
R.0157. Under the City Charter, a referendum on an ordinance must be

filed within 30 days of the day the ordinance was published and must

conform to specific “form and manner” requirements, including a

requirement that there must be a specified circulator’s affidavit on

every page.4 Wilson’s petition did not conform to those requirements

and therefore the City Secretary did not have a ministerial duty to

count the signatures. The City Secretary rejected the petition as

untimely and not in compliance with the City Charter’s requirements

for a referendum petition. R.0157.

         Wilson alleged his petition was a “charter amendment” instead of

a referendum petition. The next day he filed in the district court his

“Original Petition for Mandamus.” R.0001. Wilson originally pled for

“mandatory injunctive relief to require each of the Respondents to fulfill

their ministerial duties” and in his prayer sought “all other and further

declaratory and injunctive relief to which Petitioners may show

themselves        to    be   justly    entitled.”    R.0010     (emphasis   added).

Immediately, even before the City was served with the Petition, it was

served with a “Notice of Hearing” setting a “Motion to Mandamus” for


4   City of Houston Charter, Chapter VII-a §§ 2, 3; VII-b § 2(a).


                                             3
hearing on Monday, July 13, 2015 at 9:00 a.m., three days after the

petition had been filed. R.0012.6.

      At the July 13 hearing, the Court sustained the City’s objection to

proceeding with the action with insufficient notice. Wilson amended his

lawsuit and immediately reset the mandamus to July 24, 2015. R.0053.

In the amended petition, Wilson dropped his claims against the City

and the Mayor, and asserted a claim for declaratory relief.5 R.0038.

Significantly, he also removed the request for mandatory injunctive

relief. R.0042.

      Twelve days after the original petition was filed, the trial judge

heard Wilson’s “mandamus” petition. Wilson offered no evidence at the

hearing, but asked the court to grant immediate emergency relief.

R.0094. On July 28, 2015, the trial court entered an order that

      Anna Russell in her capacity as City Secretary for the City of
      Houston shall count and certify to Houston City Council the
      number of valid signatures contained in the petition
      submitted by Plaintiff on or before 30 (thirty) days from the
      date the same were filed, namely July 9, 2015.

R.0180.



5
 They were still named as parties but the only claims in the body of the petition
were against the City Secretary.


                                       4
     The City unsuccessfully sought clarification of the Order and an

extension of time to comply, based on Ms. Russell’s affidavit that she

did not believe that she and her staff would be able to timely comply.

R.0187.

     The City timely filed a notice of interlocutory appeal and

superseded the order. Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(4) and

6.002; Tex. R. App. P. 29.2.

     After this Court denied Wilson’s motion to dismiss the City’s

appeal, the Court ordered the City to demonstrate the basis of the

Court’s jurisdiction over the interlocutory appeal.


                       Argument and Authority

I.   The July 28 Order is a mandatory temporary injunction.

     The basis for this Court’s jurisdiction is that the July 28, 2015

order is a temporary injunction, appealable as an interlocutory order

under Texas Civil Practice and Remedies Code section 51.014(a)(4).

     Ordinarily, Texas appellate courts have jurisdiction only over final

judgments. Rusk State Hosp. v. Black, 392 S.W.3d 88, 92 (Tex. 2012). An

exception to this general rule exists when a statute authorizes an

interlocutory appeal. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex.

                                    5
2011). The Civil Practice and Remedies Code provides for an

interlocutory appeal from an order that “grants or refuses a temporary

injunction or grants or overrules a motion to dissolve a temporary

injunction as provided by Chapter 65.” Tex. Civ. Prac. & Rem. Code

§ 51.014(a)(4). A temporary injunction is not identified by its label, but

by the nature of its “character and function.” Qwest Commc’ns Corp. v.

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

     Under Rule 687, a temporary injunction may be either prohibitive

or mandatory—it may order a party to “desist and refrain from the

commission or continuance of the act enjoined,” or to “obey and execute

such order as the judge has seen proper to make.” Tex. R. Civ. P. 687; In

re Hardwick, 426 S.W.3d 151, 159 (Tex. App.—Houston [1st Dist.] 2012,

no pet.) (“An injunction may be either prohibitive, forbidding particular

conduct, or mandatory, requiring particular conduct.”). The trial court’s

order here was mandatory. It ordered that the City Secretary “shall

count and certify to the Houston City Council the number of valid

signatures.” R.0180. Although the order does not acknowledge it is a

mandatory temporary injunction, the Texas Supreme Court has long ago

“rejected the notion that ‘matters of form control the nature of the order


                                    6
itself.’” Qwest, 24 S.W.3d at 336 (quoting Del Valle Indep. Sch. Dist. v.

Lopez, 845 S.W.2d 808, 809 (Tex.1992)); see also, e.g., In re Hardwick,

426 S.W.3d at 159 (citing Lopez, 845 S.W.2d at 809) (“Matters of form do

not control whether an order is an injunction; rather ‘it is the character

and function of an order that determine its classification.’”).

     In Qwest, the Supreme Court held that a trial court’s interlocutory

order that compelled Qwest to undertake certain monitoring and notice

provisions when conducting its operations was a temporary injunction.

The Court explained:

     In Del Valle Independent School District v. Lopez, we
     rejected the notion that “matters of form control the nature
     of the order itself—it is the character and function of an
     order that determine its classification.” 845 S.W.2d 808, 809
     (Tex. 1992). We reasoned that if errors in the form of the
     order determined the order’s status, then those errors would
     deny review of the very defects that render the order void.
     See Del Valle, 845 S.W.2d at 809–10; Brines v. McIlhaney,
     596 S.W.2d 519, 523 (Tex.1980).

Qwest, 24 S.W.3d at 336.

     The Fourteenth Court of Appeals’ recent decision in Helix

similarly found that an interlocutory order requiring a maritime

employer to make payments to a seaman was a temporary injunction,

even though it was styled as an order granting a motion to compel.


                                     7
Helix Energy Solutions Grp. v. Howard, 452 S.W.3d 40, 44 (Tex. App.—

Houston [14th Dist.] 2014, no pet.). Justice Christopher’s comment in

that case applies equally here: “[Plaintiff] has not cited, and we have

not found, any provision of Texas procedural law authorizing a litigant

to obtain an interlocutory order on the merits from a state court while

avoiding both the rules governing summary judgments and those

governing injunctive relief.” Id.

      This Court similarly has held that an order that was labeled an

agreed order, but that “functions as a temporary injunction” was

appealable as a temporary injunction for purposes of the Court’s

interlocutory appellate jurisdiction. City of Houston v. Downstream

Envtl., L.L.C., No. 01-13-01015-CV, 2014 WL 5500486, at *5 (Tex.

App.—Houston [1st Dist.] Oct. 30, 2014, pet. abated). See also Plant

Process Equip., Inc. v. Harris, 579 S.W.2d 53, 54-55 (Tex. Civ. App.—

Houston [14th Dist.] 1979, no writ) (holding that the order labeled

“temporary restraining order,” which would not have been appealable,

was in fact a temporary injunction because its “force and effect … [were]




                                    8
indistinguishable from that of a temporary injunction, [and] the order is

appealable.”).6


II.   A suit for a writ of mandamus, alone, does not entitle a
      plaintiff to an immediate mandatory injunction.

      A trial court writ of mandamus is a civil action subject to the rules

of procedure just as any other civil suit. See Anderson v. City of Seven

Points, 806 S.W.2d 791, 792 (Tex. 1991). The only rule in the Texas

Rules of Civil Procedure that explicitly addresses a mandamus

differently from any other suit says only that it may not be granted on ex

parte hearing. Tex. R. Civ. P. 694. There are no provisions in the rules of

civil procedure for immediate, emergency relief in a suit seeking a trial

court mandamus.

      In Anderson, the Texas Supreme Court cited to Griffin v. Wakelee,

an 1874 Texas Supreme Court decision that clearly explains that the

writ of mandamus a district court may award in Texas is not a common

law mandamus that allows immediate relief. Griffin v. Wakelee, 42 Tex.

513 (1874) (cited in Anderson, 806 S.W.2d at 792 n.1). It is “different in

6 This order is not a temporary restraining order because the relief granted “does
more than preserve the status quo during the ten day span of a temporary
restraining order.” Harris, 579 S.W.2d at 54. In effect, it grants all relief Wilson
sought.


                                         9
almost every respect” from a common law mandamus proceeding, which

“did not partake of the nature of a suit between parties, but the relief

sought was granted immediately by and through means of the writ

itself.” Id. at 516. The Court explained the procedure that must be

followed in a district court mandamus, and its holding, cited by

Anderson, is worth quoting in full:

      The relief sought to be effected through its aid is asked, as in
      any other case, by a petition alleging the facts by virtue of
      which it is claimed, with a prayer for such judgment as the
      facts warrant. The defendant is served and required to
      answer as in any other suit, and the case proceeds to trial
      and judgment as any of other action, and there is no
      distinguishable difference in principle in the course of
      proceeding and result attained in it and any other suit in the
      district court. When the judgment is rendered by the court,
      unless superseded or suspended by writ of error or appeal, it
      is carried into effect by the appropriate writ for this purpose,
      termed in the statute a writ of mandamus, from analogy, no
      doubt, drawn from the nature of the matters complained of
      in the petition, to cases in which relief is granted by this writ
      at common law. Plainly, then, unless we discard principles,
      and are controlled merely by names, it must be treated and
      regarded as a judicial writ, based upon and issuing by virtue
      of, and to carry into effect, a judgment of the district court.

Id.

      A party who files a petition for writ of mandamus in a district

court and wants immediate temporary relief has the same burden and

must follow the same procedures as in any other suit. He must seek

                                      10
temporary injunctive relief under Rules 680-693 of the Texas Rules of

Civil Procedure. See Tobin v. Serna, 277 S.W. 2d 176, 177 (Tex. App.—

San Antonio 1955, writ ref’d); Tex. R. Civ. P. 680 et seq.7 Just as

mandatory venue provisions may not be evaded merely by artful

pleading, so the requirements for obtaining a temporary injunction may

not be evaded by calling it something else. See, e.g., Helix, 452 S.W.3d at

44 (holding order “to compel” payments was in reality a mandatory

temporary injunction); In re Hardwick, 426 S.W.3d at 161 (holding

venue determined by dominant purpose of suit, not by how parties

describe cause of action).

      In his Original Petition for Writ of Mandamus, Wilson pled for

injunctive relief. R.0001-10. Although he dropped the words “injunction”

from his later pleadings, the relief he requested remained the same.

R.0038-44. The specific action the trial court ordered—that the City

7 See also, e.g., Wyly v. Pres. Dallas, 165 S.W.3d 460, 462 (Tex. App.—Dallas 2005,
no pet.) (interlocutory appeal in suit seeking temporary injunction and writ of
mandamus); Peeples v. Nagel, 137 S.W.2d 1064, 1066, 1067 (Tex. Civ. App.—
Galveston 1940, writ dism’d judgm’t cor.) (in suit seeking temporary injunction,
mandatory injunction, and mandamus, trial court abused its discretion in not
having preserved subject matter of suit by issuing temporary injunction); Bd. of
Prison Comm’rs v. Binford, 259 S.W. 169 (Tex. Civ. App.—Galveston 1924, no writ)
(“[W]e are of the opinion that the trial court had authority or jurisdiction to hear
and determine the suit for mandamus, and pending such hearing, had authority to
issue a temporary injunction for the purpose before stated [to preserve the status
quo].”).


                                        11
Secretary “count and certify” on a short deadline—is a classic example of

a mandatory temporary injunction. See Helix, 452 S.W.3d at 44.

     Wilson’s live petition on the date of the hearing was entitled “First

Amended Petition for Writ of Mandamus.” The order purports to be an

order granting “Plaintiff’s Application for Writ of Mandamus.” R.0180.

But the Order was not the result of a summary judgment proceeding, a

trial on the merits, or even an evidentiary hearing. There are still

pending the claims for a declaratory judgment and for writ of

mandamus against the Mayor and the City Council members. R.0207-

14. It was clearly an interlocutory order, and in form and effect is a

temporary injunction, appealable under Texas Civil Practice and

Remedies Code § 51.014(a)(4).


III. This appeal is controlled by Qwest.

     The City recognizes that an order of mandamus is not listed in the

Civil Practice and Remedies Code as an appealable interlocutory order.

Tex. Civ. Prac. & Rem. Code § 51.014. In cases where parties have

sought a district court writ of mandamus along with a temporary

injunction, the appellate courts have found they do not have

interlocutory jurisdiction over an order on the writ of mandamus. See,

                                   12
e.g., Wyly, 165 S.W.3d at 462. Here, however, Wilson obtained an

interlocutory order on short notice and without a trial on the merits,

summary judgment proceeding, or even evidentiary hearing. If Wilson is

allowed to escape interlocutory review of this order by simply calling it

an order on a writ of mandamus rather than what it is in form and

effect—a temporary injunction—then he will have obtained all of the

relief he has asked for without due process of law. As the Supreme Court

held in Qwest, “if errors in the form of the order determined the order’s

status, then those errors would deny review of the very defects that

render the order void.” Qwest, 24 S.W.3d at 336.

     The trial court’s order states that City Secretary Anna Russell

“shall count and certify to Houston City Council the number of valid

signatures contained in the petition submitted by Plaintiff on or before

30 (thirty) days from the date the same were filed, namely July 9, 2015.”

R.0180. Its character and function is to command the City Secretary to

obey and execute an order. Tex. R. Civ. P. 687(d). Just as in Qwest, the

order requires the City Secretary to perform certain activities, was

entered upon the plaintiff’s request, was effective immediately, and




                                   13
operated during the pendency of the suit. Qwest, 24 S.W.3d at 338. See

discussion in Downstream, 2014 WL 5500486, at *5.

     Just like the orders in Qwest, Helix, and Downstream, the order

compelling the City Secretary to “count and certify” is a temporary

injunction   appealable   as   an   interlocutory   order   under   section

51.014(a)(4) of the Texas Civil Practice and Remedies Code. Qwest, 24

S.W.3d at 336; Helix, 452 S.W.3d at 44; Downstream, 2014 WL 5500486,

at *5. The trial court abused its discretion in entering that order without

pleadings or proof to support it and without complying with the

requirements of the Texas Rules of Civil Procedure for injunctive relief.

     The City respectfully prays that this Court assert jurisdiction over

this interlocutory appeal, and after full briefing vacate the July 28, 2015

order and remand this case to the district court for further proceedings.




                                    14
Respectfully submitted,

DONNA L. EDMUNDSON
City Attorney
JUDITH L. RAMSEY
Chief, General Litigation Section


By:     /s/ Judith L. Ramsey
      Judith L. Ramsey
      State Bar No.: 16519550
      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, 4th Floor
      Houston, Texas 77002
      832.393.6491 (Telephone)
      832.393.6259 (Facsimile)
      kate.alsina@houstontx.gov
      pat.casey@houstontx.gov
      judith.ramsey@houstontx.gov


Attorneys for Respondents




15
                        Certificate of Compliance

     I certify that this brief was prepared in MS Word 2010; the word-
count function shows that, excluding those sections exempted under
TRAP 9.4(i)(1), the response contains 2,979 words.

                                      /s/ Judith L. Ramsey
                                     Judith L. Ramsey




                          Certificate of Service

      I hereby certify that on this 28th day of August, 2015, a true and
correct copy of the foregoing has been served on counsel below via e-
service:

James D. Pierce
1 Sugar Creek Center 1080
Sugar Land, TX 77478
jim@jamespierce.com

Attorney for Appellee


                                      /s/ Judith L. Ramsey
                                     Judith L. Ramsey




                                    16
