                                   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

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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

                                            3
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


                                               4
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.



                                              5
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


                                              6
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


                                             7
       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;

                                               8
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.”

                                                9
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



        1
           W e say “initiated by the voters” because we do not address whether su bs ec tion (b) of §211.015
perm its th e governing body of a m unicipality to pre sent, through referendum called at som e date after their
initial adoption, the question of whether all the zoning laws should be repealed.

                                                      10
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



                                                11
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




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