
NO. 07-03-0305-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

DECEMBER 8, 2003
______________________________


CITY OF CANYON and LOIS RICE, 

									Appellants

v.

KEVIN FEHR and BRIAN GOSS, 

									Appellees

_________________________________

FROM THE 47th DISTRICT COURT OF RANDALL COUNTY;

NO. 53,045-A; HON. DAVID GLEASON, PRESIDING
_______________________________

Opinion
_______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
	The City of Canyon and Lois Rice (collectively referred to as Canyon) appeal from
an order denying a plea to the jurisdiction of the court and granting Kevin Fehr (Fehr) and
Brian Goss (Goss) a temporary injunction.  Four issues are presented for our
consideration.  The first and second concern the doctrines of sovereign immunity and
standing, respectively.  Through the third and fourth issues, Canyon effectively argues that
the trial court abused its discretion in granting the preliminary injunction because there
does not exist a substantial likelihood that Fehr and Goss will ultimately succeed on the
merits.  They will not do so, according to Canyon, because re-zoning is not subject to
initiative and referendum.  We affirm in part and reverse in part.  
Background
	Canyon is a home rule municipality. Article XIV of its charter contains procedures
for initiative (§14.01) and referendum (§14.02).  
	Under provisions of the city's zoning ordinance, proposals were drafted to re-zone
two tracts of land within Canyon's boundaries from single family residential use to
commercial use. The local zoning commission recommended that the proposals be denied.
However, on April 7, 2003, Canyon's city commissioners approved the change by adopting
amendments to the local zoning ordinance ("the amendments").
	Upon adoption of the amendments, Fehr and Goss (two individuals alleging
themselves to be citizens, residents and qualified voters of the city of Canyon) sued
Canyon for injunctive or mandamus relief.  That is, they sought a decree from the trial court
ordering Canyon to abide by various provisions of its local charter.  The charter provisions
allegedly obligated the Canyon city commissioners to address a petition tendered by Fehr
and Goss to the city clerk.  Those signing the petition (who included Goss, Fehr and others
representing themselves to be residents and qualified voters of Canyon) demanded either
the 1) adoption of a resolution negating the re-zoning ordinances, 2) repeal of the
amendments, or 3) submission of the re-zoning issue to a referendum election.  The
injunctive relief contemplated by Fehr and Goss would compel the city commission to
undertake one of the three actions mentioned. 
	Canyon filed an answer wherein it invoked sovereign immunity and averred that
neither Fehr nor Goss had standing to assert the claims mentioned in their pleading.  The
trial court rejected these contentions.  So too did it issue a temporary injunction 1)
suspending the effectiveness of the amendments and 2) directing the city clerk to present
the initiative and referendum petition to the city commission.  Canyon appealed the
interlocutory decree.
Issue One -- Sovereign Immunity
	Canyon initially argues that the doctrine of sovereign immunity barred the suit.  We
disagree and overrule the point.
	As acknowledged by the Texas Supreme Court, judicial decrees have been "issued
and affirmed . . . to compel municipal authorities to perform their ministerial duties with
respect to initiatory elections."  Blum v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999).  And,
while neither Blum nor any other case authority cited to us by the parties explain why
sovereign immunity has not barred execution of those decrees, we conclude that the
answer lies in the nature of initiative and referendum and the status of those pursuing it.
	It is beyond dispute that initiative and referendum entails the exercise of a power
reserved to the people.  Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 648-49 (1951);
quoting, Taxpayers' Assn. of Harris County v. City of Houston, 129 Tex. 627, 105 S.W.2d
655, 657 (1937).  It is not simply a right granted to them.  Id.  Moreover, in exercising that
power, the citizenry become the legislative branch of the governmental unit involved.  Blum
v. Lanier, 997 S.W.2d at 262; Glass v. Smith, 244 S.W.2d at 648-49.  And, therein lies the
answer to the dispute before us for the doctrine of sovereign immunity cannot be used by
a municipality against itself.
	That is, sovereign immunity exists as a means of protecting the independent
sovereignty of the governmental unit.  Tex. Workers' Comp Comm'n v. City of Eagle Pass,
14 S.W.3d 801, 803 (Tex. App.--Austin 2000, pet. denied) (holding that the doctrine did not
bar suit initiated by state regulatory agencies).  Serving that purpose, it operates to bar
suits initiated by private third parties, not by entities in relation to which the governmental
unit has no independent sovereignty.  Id.  And, logic compels that a governmental unit,
such as a municipality, has no independent sovereignty from itself.  So, because a person
seeking to compel initiative and referendum acts not as a private third party but as the
legislative branch of the governmental unit, see Blum v. Lanier, supra, Glass v. Smith,
supra, sovereign immunity does not bar Fehr and Goss from suing a governmental unit (i.e.
Canyon) as a means of enforcing the initiative and referendum provisions contained in its
city charter.
Issue Two -- Standing
	Next, Canyon asserts that neither Fehr nor Goss had standing to pursue the claims
involved.  We again disagree and overrule the issue.
	As stated by the Supreme Court, individuals qualified to vote and who sign the
petition for initiative and referendum "have a justiciable interest in the valid execution of the
charter amendment election."  Blum v. Lanier, 997 S.W.2d at 262.  Thus, their interests are
distinct from those of the general public, and they have standing to prosecute their claim. 
Id.  Here, Fehr and Goss alleged in their live pleading that they signed the petition tendered
to the city clerk.  Furthermore, this allegation is supported by the evidence admitted at the
hearing upon the motion for temporary injunction.  Thus, Fehr and Goss have standing to
prosecute the action. 
Issues Three and Four -- Initiative and Referendum and Zoning
	In their third and fourth issues, Canyon alleges that the trial court erred in issuing
the temporary injunction because the zoning changes were not subject to initiative and
referendum.  They rely on case law and commentary to support their contention.  In
response, Fehr and Goss argue that recently enacted sections of the Texas Local
Government Code authorized the trial court to order compliance with Canyon's ordinances
regarding popular vote.  We disagree with Goss and Fehr and sustain the points of error.
	As mentioned in the opening of this opinion, Canyon appeals from, among other
things, the trial court's execution of a temporary injunction.  To obtain the latter, the movant
(Fehr and Goss) had to establish 1) a probable right of recovery, 2) imminent, irreparable
harm if the request is denied, and 3) the existence of no adequate remedy at law.  EOG
Resources, Inc. v. Gutierrez, 75 S.W.3d 50, 52 (Tex. App.--San Antonio 2002, no pet.). 
In assessing whether they did so and the propriety of the trial court's decision, we must
remember that a trial court enjoys broad discretion in granting and denying such
injunctions.  Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978); EOG Resources, Inc. v.
Gutierrez, 75 S.W.3d at 52.  However, it can abuse that discretion and subject its decision
to reversal by misapplying the law.  EOG Resources, Inc. v. Gutierrez, 75 S.W.3d at 52. 
According to Canyon, the trial court did just that by concluding that Fehr and Goss had a
probable right of recovery when the cause is finally tried.  We agree. 
 As previously said, initiative and referendum is not a right granted the citizenry. 
Rather, it represents a power reserved from the government and retained by the people. 
Because of this, provisions dealing with it should be liberally construed in favor of the
reservation.  Quick v. City of Austin, 7 S.W.3d 109, 124 (Tex. 1998); Glass v. Smith, 244
S.W.2d at 648-49.  However, it may be limited.  That can occur through either express
directive or by implication.  Quick v. City of Austin, 7 S.W.3d at 124.  And, before it can
arise through implication, the provisions must evince a clear and compelling intent to limit
the power.  Id. 
 Authority also holds that though the power may be recognized at the local level it
may nonetheless be restricted by the State's general laws.  Glass v. Smith, 244 S.W.2d
at 649.  Indeed, our Texas Constitution provides that neither a city charter nor an ordinance
may contain any provision inconsistent with the Constitution or the general laws enacted
by the state legislature.   Tex. Const. art. XI, §5; Glass v. Smith, 244 S.W.2d at 649.  Yet,
logically, that the charter provisions and ordinances are subject to the general laws of this
state also means that this state's general laws may permit what a charter prohibits.  Along
that line, we note Texas case authority that historically prohibited the use of initiative and
referendum in the arena of zoning.  E.g., San Pedro North, Ltd. v. City of San Antonio, 562
S.W.2d 260 (Tex. Civ. App.--San Antonio 1978, writ ref'd n.r.e.); Hancock v. Rouse, 437
S.W.2d 1 (Tex. Civ. App.--Houston [1st Dist.] 1969, writ ref'd n.r.e.).  However, when those
opinions were issued, Texas had no statute touching upon the subject.  Indeed, the San
Pedro court so acknowledged.  San Pedro North, Ltd. v. City of San Antonio, 562 S.W.2d
at 262 (stating that the Zoning Enabling Act contained no provisions relating to initiative
and referendum).  That situation changed in 1993 when our legislature added §211.015
to the Texas Local Government Code.  
	Upon enactment of §211.015, referendum was interjected into the fray.  The
problem before us concerns the extent to which referendum is available as a means of
repealing a municipality's attempt to re-zone an area.  If we conclude that the statute
enables Fehr and Goss to prosecute their petition, the Canyon City Charter must give way
to it, as must the decisions in San Pedro and Hancock.  
 Section 211.015(a) states:      
	a)	Notwithstanding other requirements of this subchapter, the voters of
a home-rule municipality may repeal the municipality's zoning
regulations adopted under this subchapter by either:

 		(1) 	a charter election conducted under law; or

		(2) 	on the initial adoption of zoning regulations by a municipality,
the use of any referendum process that is authorized under the charter of the
municipality for public protest of the adoption of an ordinance.  [Emphasis
added].

*     *     *


Tex. Local Gov. Code Ann. §211.015(a) (Vernon 1999).  In turn, subsection (e) of the
same section provides that:
	e) The provisions of this section may only be utilized for the repeal of a
municipality's zoning regulations in their entirety or for determinations of
whether a municipality should initially adopt zoning regulations, except the
governing body of a municipality may amend, modify, or repeal a zoning
ordinance adopted, approved, or ratified at an election conducted pursuant 
	to this section. [Emphasis added].

Id.  at §211.015(e). 
 As can be seen, §211.015(a) authorizes the repeal of zoning regulations adopted
by a municipality.  Furthermore, the repeal may occur in one of two ways.  That is, it may
be through a general charter election or by popular referendum (assuming the city charter
allows for referendum as a means of protesting the adoption of an ordinance).  No one
contends that the procedure invoked by Goss and Fehr is a charter election.  So, we need
not consider that avenue.  Instead, the dispute implicates the second means of protesting
zoning ordinances.  And, to the extent that the means utilized is referendum under
§211.015(a)(2), the avenue is available with regard only to the initial adoption of the
regulations.  
	Now, the question arises as to what is meant by the "initial adoption" of the
"regulations."  Goss and Fehr posit that it refers to the time when any particular zoning rule
is enacted or amended irrespective of whether zoning regulations previously existed.  On
the other hand, Canyon argues that the statute allows for popular vote only when the local
governing body adopts zoning regulations for the first time, i.e. when it adopts a body of
regulations when none previously existed.  To decide who is correct, we rely on various
directives regarding statutory construction.
	According to the Supreme Court, our goal is to give effect to the legislature's intent. 
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999).  In
garnering that intent, we first look to the plain and common meaning of the words
incorporated in the statute.  Id.  So too are we to read the particular provision in context;
that is, we must read the statute as a whole.  Marcus Cable Associates, L.P. v. Krohn, 90
S.W.3d 697, 706 (Tex. 2002).  With that said, we address the statute at hand.
	As mentioned above, §211.015(a)(2) contains the phrase "on the initial adoption." 
Yet, that is not the only time the word "initial" or a derivative thereof is used in the statute. 
The legislature mentions it in subsection (c) when again speaking of the "initial adoption
of zoning regulations."  It also alludes to it in subsection (e).  The latter tells us when the
avenues created by §211.015 may be sojourned and one such time is when the
municipality is determining if it should "initially adopt zoning regulations."  Given that the
plain or common meaning of the word "initial" encompasses the idea of the first or the
beginning, it is clear that the legislature intends for §211.015 to be utilized only when the
municipality attempts to create and impose, for the first time, upon its citizenry a body of
zoning ordinances when or where none previously existed.  And, the context of the statute
bears out this interpretation.  For instance, in subsection (b) of §211.015, we are told that
the municipality may opt to submit the zoning regulations for repeal by popular vote, but
the ordinances must be submitted in their "entirety."  Tex. Local Gov. Code Ann.
§211.015(b) (Vernon 1999).  Virtually identical language appears in subsection (e) through
which we are told that the avenues created in §211.015 can be used only to repeal the
regulations "in their entirety."  Plainly, the word "entirety" means "all."  Thus, the focus of
the legislation is not on the piecemeal repeal of particular zoning ordinances but rather on
the repeal of all zoning laws.  
	So, the procedure developed by the legislature through §211.0015(a) and (e) can
be best characterized by allusion to a phrase oft uttered by Deputy Barney Fife.  To the
extent a dispute about zoning arises, the legislature intended to "nip it . . . nip it in the bud." 
The proverbial "bud," for purposes of zoning, is represented by the first ordinances enacted
by the city.  And, to successfully "nip" the dispute surrounding their imposition on the local
populace, they had to be proffered for rejection in toto; "all or nothing," according to the
legislature.  And, in so constructing the statute, the legislature effectively did two things. 
First, it modified Hancock and San Pedro to the extent they indicated that initiative and
referendum could not be used to repeal zoning ordinances.  Second, it restricted the use
of initiative and referendum to the time and to the regulations described in the statute. 
Referendum, initiated by the voters, could not be used to vitiate such ordinances
piecemeal. (1)  Nor could it be used after the first ordinances survived with or without attack. 
	Fehr and Goss, however, posit otherwise and do so by relying upon §211.002 of the
same Local Government Code.  According to that provision, the phrase "adoption of a
zoning regulation" also includes the "amendment, repeal, or other change of a regulation
. . . ."  Tex. Local Gov. Code Ann. §211.002 (Vernon 1999).  And, their argument goes,
if the adoption of zoning regulations also includes amendments thereto, then logically
§211.015(a)(2) must also encompass the amendment to previously existing ordinances. 
We disagree for the definition contained in §211.002 does not encompass that provided
for in §211.015(a)(2).  This is so because in §211.015(a)(2) the legislature modified the
phrase "adoption of zoning regulations" by placing the word "initial" before it.  In other
words, by including the word "initial" in front of the phrase "adoption of zoning regulations,"
it was talking about a particular set of zoning regulations, not about zoning regulations in
general as contemplated in §211.002.  And, as explained above, the particular set of
regulations to which it referred are the ones enacted when none previously existed or the
first ones enacted by cities as part of their initial zoning efforts.  So, the definition in
§211.002 does not encompass the words in §211.015(a)(2); nor can it be used to expand
the power of referendum beyond the reach intended by the legislature in §211.015.  
	Nor do we accept the proposition that the Supreme Court in Quick v. City of Austin,
7 S.W.3d 109 (Tex. 1998) implicitly overruled San Pedro and Hancock in a way that now
allows the public to vote on whether any zoning ordinance should be repealed.  Simply put,
Quick did not deal with §211.015(a)(2) of the Local Government Code but rather the
powers reserved to Austinites under the local city charter.  Here, we deal with
§211.015(a)(2) and its directive as to when and how zoning regulations can be repealed
through referendum.  And, since the legislature clearly restricted the power of referendum
to situations wherein a municipality is trying to zone for the first time, Canyon's city charter
must give way to it, Glass v. Smith, 244 S.W.2d at 649, as must San Pedro, Hancock and
Quick.
	Finally, turning to the facts before us, Goss and Fehr seek a public vote, via initiative
and referendum, on whether an amendment to a prior zoning ordinance should be allowed
to stand.  They are not attempting to nullify Canyon's first attempt at zoning.  Nor are they
trying to nullify all the zoning regulations which Canyon has enacted.  Thus, the relief
sought exceeds that permitted by §211.015(a)(2) and (e).  The legislature has exercised
its prerogative in the area, and we must abide by its directive especially when no one
questions the authority of the legislature to act.  Consequently, the trial court abused its
discretion when it 1) concluded that Goss and Fehr have a probable right of recovery and
2) issued its temporary injunction.
	Accordingly, the order of the trial court denying Canyon's plea to the jurisdiction of
the trial court is affirmed.  The order granting Fehr and Goss a temporary injunction is
reversed.  We remand the cause to the trial court.          

							Brian Quinn
						   	   Justice                         





1. We say "initiated by the voters" because we do not address whether subsection (b) of §211.015
permits the governing body of a municipality to present, through referendum called at some date after their
initial adoption, the question of whether all the zoning laws should be repealed.

