                                                                                             ACCEPTED
                                                                                        14-14-00899-CV
                                                                          FOURTEENTH COURT OF APPEALS
                                                                                      HOUSTON, TEXAS
                                                                                   3/10/2015 3:54:40 PM
                                                                                    CHRISTOPHER PRINE
                                                                                                 CLERK

                              No. 14-14-00899-CV

                                                                      FILED IN
                                                               14th COURT OF APPEALS
                         In the Court of Appeals for the          HOUSTON, TEXAS
                     Fourteenth District of Texas at Houston   3/10/2015 3:54:40 PM
                                                               CHRISTOPHER A. PRINE
                                                                        Clerk

         MAYOR ANNISE PARKER AND CITY OF HOUSTON,

                                                               Appellant
                                       V.

                     JACK PIDGEON AND LARRY HICKS

                                                               Appellee


                On Appeal from the 310th Judicial District Court
                             Harris County, Texas
                      Trial Court Case No. 2014-61812


  Appellants’ Response to Appellees’ Motion to Supplement the Appellate
                                 Record


To the Honorable Fourteenth Court of Appeals:

      Appellant the City of Houston objects to the supplementation of the

appellate record with documents from other cases that were not offered into

evidence at the hearing or otherwise presented to the trial court, and in support

states as follows:
                                       Introduction

       Texas Rule of Appellate Procedure 34.5(c) authorizes appellate courts to

supplement the record; however, it does not allow the creation of a new trial

court record. Richards v. Comm’n for Lawyer Discipline, 35 S.W.3d 243, 251 (Tex.

App.—Houston [14th Dist.] 2000, no pet.). That is what the Appellees are

attempting to do here. They wish to add to the trial court record all pleadings

filed in three separate proceedings, none of which were filed in this case or

presented to the trial court at the hearing. The motion to supplement the

record should be denied.


                                       Background

       On November 19, 2013, Mayor Anise Parker issued a directive allowing

spousal benefits to same-sex spouses of City of Houston employees who have

been legally married in another state.1 Three lawsuits resulted.

       The first was filed by these same plaintiffs on December 17, 2013,

removed to federal court, and eventually remanded.2 Prior to remand, the state



1
 The directive was issued following the decisions in United States v. Windsor, 133 S. Ct. 2675
(2013). See also De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014), appeal docketed,
No. 14-50196 (5th Cir. March 1, 2014).
2
  See CR 61, Pidgeon v. Parker, No. 2013-75301, in the 310th Judicial District Court of Harris
County, Texas. On January 26, 2014, Judge Lisa Millard entered a TRO without notice.
(Id.). The City removed to federal court. The Hon. Lee H. Rosenthal did not grant
injunctive relief, but on August 28, 2014, remanded the case to state court, holding no


                                              2
trial court gave notice that a motion to retain was required to keep the case on

the state court docket. When a motion was not filed, the case was dismissed

for want of prosecution on May 9, 2014. (CR 146). The plaintiffs filed no

motion for new trial or appeal. After remand, plaintiffs did not seek to reopen

the case.

      The second lawsuit was filed on December 26, 2013 by three City of

Houston employees, seeking enforcement of the November 19, 2013 directive.3

On August 29, 2014, the federal district court, the Honorable Sim Lake,

entered an order enjoining the City from discontinuing the employee benefits

and staying the case pending the decision of the Fifth Circuit Court of Appeals

in De Leon. (CR 134).

      The third lawsuit, from which this appeal arises, was filed in October

2014. In their original petition in this suit, Appellees allege the Mayor’s

directive to provide same-sex spousal benefits is a violation of the Texas

Family Code § 6.204(c)(2) (the Texas “Defense of Marriage Act” or

“DOMA”), the Texas Constitution art. I, § 32, and the City of Houston




federal law issue was raised. See Pidgeon v. Parker, No. H-13-3768, 2014 WL 4319041 (S.D.
Tex. Aug. 28, 2014).
3
 See CR 40, original complaint in Freeman v. Parker, No. 4:13-cv-3755, in the United States
District Court for the Southern District of Texas.



                                            3
Charter, art. II, § 22. (CR 6-8). They seek injunctive relief, unspecified actual

damages, and attorneys’ fees. (CR 4).

      The City and Mayor filed a plea to the jurisdiction and supplemental

plea, a motion to stay due to the federal court order enjoining the City from

discontinuing benefits, and subject to those motions, a response to the request

for temporary injunctive relief. (CR 20, 30, 82, 161). On November 5, 2014,

the trial court held a hearing on the plea, the motion to stay, and the temporary

injunction. (CR 20, 30, 82; RR 1-55). The Appellees offered no evidence on

any issue at the hearing. (RR 1-55).

      The trial court denied the pleas to the jurisdiction and motion for stay,

but granted a temporary injunction ordering the City to discontinue the

benefits. (CR 169, 170, 171).

      The City appealed both the denial of the plea (No. 14-14-00932-CV) and

the injunction (No. 14-14-00899-CV). The filing of a notice of interlocutory

appeal of the City’s plea stayed all further proceedings in the trial court

pending resolution of that appeal. Tex. Civ. Prac. & Rem. Code § 51.014(b).




                                        4
                           Argument and Authorities

I.    The appellate record may not be supplemented with documents that
      were never filed with the trial court.

      It has long been the law in Texas that an appellate court may not

examine a record from another case for the purpose of ascertaining a fact not

shown in the record of the case before it. Armendiaz v. De La Serna, 40 Tex. 291,

303, 1874 WL 7932, at *6 (1874) (emphasis added). See also Victory v. State, 158

S.W.2d 760, 763 (Tex. 1942) (same).

      To be properly included in the record on appeal, or later supplemented

into the record, a document must be filed with the trial court. See Tex. R. App.

P. 34.5(c)(1). Once an appeal is perfected, the trial court cannot change the

record that existed at the time the judgment was granted. Gerdes v. Marion State

Bank, 774 S.W.2d 63, 65 (Tex. App.—San Antonio 1989, writ denied).

Documents not part of the trial court record when the trial court made the

ruling appealed from may not be considered on appeal. Roventini v. Ocular Scis.,

Inc., 111 S.W.3d 719, 726 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

      Certainly a court may under some circumstances take judicial notice of

the records of another court, but the party must offer them as evidence for that

purpose at trial. Richards, 35 S.W.3d at 251. In Richards, this Court denied a

motion to supplement the appellate record with pleadings from related cases.

Id. The Court explained:

                                       5
      Appellant never offered these pleadings and documents into
      evidence at the trial on the merits. Appellant made no bills of
      exceptions, formal or informal. No offer of proof was made of the
      excluded evidence in any form. The excluded evidence is not in
      the record. Rule 34.5(c), Texas Rules of Appellate Procedure,
      authorizes appellate courts to supplement the record; however, it does
      not allow the creation of a new trial court record.

Id. (emphasis added). See also, e.g., Intermarque Auto. Prods., Inc. v. Feldman, 21

S.W.3d 544, 547 n.3 (Tex. App.—Texarkana, 2000 no pet.) (denying request

to supplement the record with orders from a related bankruptcy court

proceeding because “[t]he bankruptcy court’s order was not admitted as

evidence when the trial court made its ruling.”).

      Here the documents Appellees seek to make a part of the appellate

record were never filed with the trial court. They are documents included in

the records of three other cases. Each of these three cases has its own file

number, each has a separate docket sheet, and each constitutes a separate

record. The Appellees did not attach any of these pleadings to their filings in

the trial court, introduce them as evidence at the hearing or ask the trial court

to take judicial notice of them.

      The trial court based its ruling on the record that was before it at the

November 5, 2014 hearing. The issues on appeal were all raised before the trial

court. If the Appellees believed the trial court needed these documents to

properly resolve this case, it was up to them to make the documents part of the


                                        6
trial record. They did not do so, and their attempt to create a new record before

this Court is improper. The motion to supplement should be denied.


II.      The Appellees were not deprived of an opportunity to use records
         from the other proceedings.

         The Appellees suffered no “procedural slights.” They never sought to file

records from these other cases in the trial court. In arguing the state court

should extend comity to the federal court order staying the City from taking

any action to change the employee benefits pending the Fifth Circuit’s decision

in DeLeon, the City filed as an exhibit the Original Complaint in the parallel

federal court lawsuit, Freeman v. Parker.4 (CR 30, 40-55). The Appellees had

every opportunity to similarly bring forward any pleadings or other

information from either of the two federal court proceedings.

         With respect to the trial court’s dismissal of the first state court

proceeding, the Appellees took no action to keep the case on the court’s docket

or to reopen it following the remand. Instead they filed a new lawsuit. The

City had nothing to do with that decision, but it does not matter. Even in the

remanded case, the Appellees would have had to bring to the state court’s

attention any relevant pleadings and orders filed in the federal court before

remand. The only exception under Texas law is that a default judgment may

4
    No. 4:13-cv-3755, in the United States District Court for the Southern District of Texas.



                                                 7
not be entered if an answer has been filed in the federal court. Tex. R. Civ. P.

237a. If there was something from the federal court case before remand that

should have been considered by the trial court in this second state court case,

there was no impediment to the Appellees introducing it as evidence at the

hearing.

      There is nothing in the record to support the Appellees’ suggestion that

the trial court independently took “judicial notice” of the pleadings in these

other files. Nothing suggests the trial court considered them at the hearing.

Appellees cite to two cases where this Court presumed that a trial court had

knowledge of the records in the file of the same case. Marble Slab Creamery was

a challenge to a trial court’s finding that a party waived the right to seek

arbitration by substantially invoking the judicial process. Marble Slab Creamery,

Inc. v. Wesic, Inc., 823 S.W.2d 436, 439 (Tex. App.—Houston [14th Dist.]

1992, no writ). This Court presumed that in addition to the motion to compel

arbitration and the response, the trial court took judicial notice of the contents

of the record on file, including injunction pleadings, extensive discovery,

counterclaims, a third-party petition etc. Similarly, in a mandamus involving a

notice sent by the clerk of the court, this Court held that the trial court could

consult its docket to determine if the notice had been sent. In re Williams, 378

S.W.3d 503, 506 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding).


                                        8
       That is not the kind of judicial notice Appellees are seeking here. Instead

they ask this Court to take judicial notice of unspecified records of two federal

courts and a prior state court case, none of which was presented to the trial

court below. And even assuming the trial court had knowledge of the first state

court proceeding, there is no basis for making that presumption regarding the

case after removal to federal court. Nor is there any basis for the trial court to

have knowledge of pleadings in the unrelated Freeman v. Parker case.


III.   The other authorities Appellees cite do not support supplementation
       of the appellate record.

       The other authorities the Appellees cite do not change the rule that the

court of appeals will not consider evidence not first presented to the trial court.

To the contrary. The Texas Supreme Court case they cite, Gardner v. Martin,

holds that in a motion for summary judgment based on the theory of res

judicata, the movant must attach to the motion certified copies of pleadings in

the prior case, even though the prior case was between the same parties and

before the same court. Gardner v. Martin, 162 Tex. 156, 157, 345 S.W.2d 274,

275 (Tex. 1961). See also Paradigm Oil, Inc. v. Retamco, 161 S.W.3d 531, 539

(Tex. App.—San Antonio 2004, pet. denied) (holding trial court cannot take

judicial notice of testimony from a previous proceeding unless the testimony is

admitted into evidence at the subsequent proceeding).


                                        9
       The cases from other jurisdictions listed in bullet points on pages 6-8 are

on the issue of whether on remand, a state trial court must “give effect” to

pleadings and orders entered in the federal court. See, e.g., Laguna Vill., Inc. v.

Laborers Int’l Union of N. Am., 672 P.2d 882, 885-86 (Ca. 1983); Crawford v.

Morris Transp., Inc., 990 S.2d 162, 173 n.27 (Miss. 2008). Many of these cases

hold that a party cannot suffer a default judgment in state court once an

answer has been filed in federal court.5 In others a party called a relevant

federal court pleading or order to the state court’s attention after remand.6 In

some it is not clear how the federal court pleading or order was raised in the

state court.7 In others, the court recognized the general rule that the state court




5
 California: Laguna Village, 672 P.2d at 885–86; Louisiana: de Reyes v. Marine Mgmt. &
Consulting, Ltd., 544 So.2d 1259, 1260 (La. App. 1989); Rivet v. Regions Bank, 838 So.2d
1290, 1294 (La. 2003); Indiana: Citizens Natl. Bank v. First Natl. Bank, 331 N.E.2d 471, 476–
77 (Ind. App. 1975); Pennsylvania: Grone v. Northern Ins. Co. of N.Y., 130 A.2d 452, 453 (Pa.
1957); Rhode Island: Doe v. E. Greenwich School Dept., No. C.A. PC.2004-0697, 2004 WL
2821639, at *4 n.3 (R.I. Super. Dec. 3, 2004), aff’d on different grounds, 899 A.2d 1258 (R.I.
2006); Georgia: Teamsters Local 515 v. Roadbuilders, Inc., 291 S.E.2d 698, 701 (Ga. 1982);
Colorado: Crumpton v. Perryman, 956 P.2d 670, 672 (Colo. App. 1998).
6
 New Jersey: Edward Hansen, Inc. v. Kearny Post Office Assocs., 399 A.2d 319, 323 (N.J. Super.
1979); Ohio: Banks v. Allstate Indem. Co., 757 N.E.2d 776, 778 (Ohio App. 2001); Minnesota:
Doerr v. Warner, 76 N.W.2d 505, 510 (Minn. 1956).
7
 Minnesota: Hunter, Keith Indus., Inc. v. Piper Capital Mgmt., Inc., 575 N.W.2d 850, 853
(Minn. App. 1998); New Mexico: State ex rel. Village of Los Ranchos de Albuquerque v. City of
Albuquerque, 889 P.2d 204, 207 (N.M. App. 1993); Colorado: Crumpton v. Perryman, 956
P.2d at 672.


                                             10
determines what effect is given to proceedings in the federal court prior to

remand.8 See Ayres v. Wiswall, 112 U.S. 187, 190-91 (1884).

      These cases are not relevant to the issue here. In the first place, the

remanded first state court case is not the case on appeal before this Court. And

even if it were, under Texas law, on remand, the plaintiff is required only to

file a certified copy of the remand order with the clerk of the state court and

give written notice of the filing to the attorneys of record for all adverse parties.

Tex. R. Civ. P. 237a. All adverse parties are then given fifteen days to file an

answer. Id. Texas law provides that no default judgment may be rendered

against a party in an action remanded from federal court if that party filed an

answer in federal court during removal. Id. See McDonald & Carlson Tex. Civ.

Prac. § 3:152 (2d ed.). After remand, the federal court loses jurisdiction.

Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 228 (Tex. 1999). The

state trial court then determines what effect is given to proceedings in the

federal court prior to remand. Atl. Richfield Co. v. Long Trusts, 860 S.W.2d 439,

449 (Tex. App.—Texarkana 1993) writ denied) (citing Ayres, 112 U.S. at 190-

91). Of course, here, the trial court never made that determination because




8
 Missouri: Williams v. St. Joe Minerals Corp., 639 S.W.2d 192, 194–95 (Mo. App. 1982); New
Hampshire: State v. Hess Corp., 982 A.2d 388, 393 (N.H. 2009).



                                           11
Appellees allowed the remanded case to be dismissed and instead filed a new

lawsuit after the remand.

      Again, the Appellees did not seek to have the trial court in the second

state court suit take judicial notice of any pleadings filed in the federal court,

and they do not explain what, if any, order exists to which the trial court

should “give effect.” In fact, the City asked the trial judge to give effect to the

order entered in the Freeman case enjoining the City from discontinuing same-

sex spousal benefits and the court refused to do so. (CR 134).

      The only record the trial court considered in making its rulings is the

clerk’s record and reporter’s record filed in this Court. The Appellees’ attempt

to create a new appellate record before this Court should be denied.

                                      Respectfully submitted,

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

                                      By:    /s/ Kathleen Hopkins Alsina
                                             Judith L. Ramsey
                                             Senior Assistant City Attorney
                                             State Bar No.: 16519550
                                             Kathleen Hopkins Alsina
                                             Senior Assistant City Attorney
                                             State Bar No.: 09977050
                                             City of Houston Legal
                                              Department
                                             900 Bagby, 4th Floor
                                             Houston, Texas 77002

                                        12
                                            832.393.6459 – Telephone
                                            832.393.6259 – Facsimile
                                            kate.alsina@houstontx.gov
                                            judith.ramsey@houstontx.gov

                                     Attorneys for Appellants
                                     Mayor Annise Parker and
                                     City of Houston




                             Certificate of Service

      I hereby certify that on this 10th day of March, 2015, a true and correct
copy of the foregoing has been served on counsel below via e-service:

Jared R. Woodfill                        Jonathan M. Saenz
Robert Talton                            Texas Values
WOODFILL LAW FIRM, PC                    900 Congress Avenue, Suite 220
River Oaks Green                         Austin, Texas 78701
3131 Eastside Street, Suite 450          jsaenz@txvalues.org
Houston, Texas 77098
jwoodfill@woodfilllaw.com
rtalton@woodfilllaw.com

Leif A. Olson
THE OLSON FIRM, PLLC
4830 Wilson Road, Suite 300
Humble, Texas 77396
leif@olsonappeals.com

Attorneys for Appellees


                                         /s/ Kathleen Hopkins Alsina
                                        Kathleen Hopkins Alsina




                                       13
