ORAL ARGUMENT REQUESTED

No. 05-16-00573-CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS __________________________________________________________________ CITY OF PLANO, TEXAS; LISA HENDERSON, IN HER OFFICIAL CAPACITY AS CITY SECRETARY; HARRY LAROSILIERE, IN HIS OFFICIAL CAPACITY AS MAYOR; ANGELA MINER, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; BEN HARRIS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RICK GRADY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; LISSA SMITH, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RON KELLEY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; TOM HARRISON, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; AND DAVID DOWNS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL

Appellants vs. ELIZABETH CARRUTH; MATTHEW TIETZ; JANIS NASSERI; JUDITH

KENDLER AND STEPHEN PALMA

Appellees __________________________________________________________________

BRIEF OF APPELLANTS __________________________________________________________________

ORAL ARGUMENT REQUESTED

ANDY TAYLOR State Bar No. 19727600 ANDY TAYLOR & ASSOCIATES, P.C. 2668 Highway 36S, #288 Brenham, Texas 77833 713-222-1817 (telephone) 713-222-1855 (facsimile) ataylor@andytaylorlaw.com ROBERT J. DAVIS State Bar No. 05543500

MATTHEWS, SHIELS, KNOTT, EDEN, DAVIS & BEANLAND, L.L.P. 8131 LBJ Freeway, Suite 700 Dallas, Texas 75251 972/234-3400 (office) 972/234-1750 (telecopier) bdavis@mssattorneys.com TIMOTHY A. DUNN Assistant City Attorney State Bar No. 24050542 CITY OF PLANO, TEXAS P.O. Box 860358 Plano, Texas 75086-0358 Telephone: (972) 941-7125 Facsimile: (972) 424-0099 Email: timothyd@plano.gov

ATTORNEYS FOR APPELLANTS

BRIEF OF APPELLANT CITY OF PLANO PAGE i

IDENTITY OF PARTIES AND COUNSEL Pursuant to Tex. R. App. P. 38.1(a), the Appellants certify that the following

is a complete list of the interested parties in this matter, as well as their attorneys,

so that the members of this Court may determine disqualification or recusal:

CITY OF PLANO, TEXAS Appellant

LISA HENDERSON, IN HER OFFICIAL CAPACITY AS CITY SECRETARY

Appellant

HARRY LAROSILIERE, IN HIS OFFICIAL CAPACITY AS MAYOR

Appellant

ANGELA MINER, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL

Appellant

BEN HARRIS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL

Appellant

RICK GRADY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL

Appellant

LISSA SMITH, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL

Appellant

RON KELLEY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL

Appellant

TOM HARRISON, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL

Appellant

DAVID DOWNS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL

Appellant

ELIZABETH CARRUTH

Appellee

BRIEF OF APPELLANT CITY OF PLANO PAGE ii

MATTHEW TIETZ Appellee

JANIS NASSERI Appellee

JUDITH KENDLER Appellee

STEPHEN PALMA Appellee

ANDY TAYLOR State Bar No. 19727600 ANDY TAYLOR & ASSOCIATES, P.C. 2668 Highway 36S, #288 Brenham, Texas 77899 Telephone: (713) 222-1817 Facsimile: (713) 2221855 ataylor@andytaylorlaw.com

Counsel for Appellants

ROBERT J. DAVIS State Bar No. 05543500 MATTHEWS, SHIELS, KNOTT, EDEN, DAVIS & BEANLAND, L.L.P. 8131 LBJ Freeway, Suite 700 Dallas, Texas 75251 Telephone: (972) 234-3400 Facsimile: (972) 234-1750 bdavis@mssttorneys.com

Counsel for Appellants

TIMOTHY A. DUNN Assistant City Attorney State Bar No. 24050542 CITY OF PLANO, TEXAS P.O. Box 860358 Plano, Texas 75086-0358 Telephone: (972) 941-7125 Facsimile: (972) 424-0099 timothyd@plano.gov

Counsel for Appellants

BRIEF OF APPELLANT CITY OF PLANO PAGE iii

JACK TERNAN State Bar No. 24060707 TERNAN LAW FIRM, PLLC 1400 Preston Road, Suite 400 Plano, Texas 75093 Telephone: (972) 665-9939 Facsimile: (972) 476-1361 jt@ternanlawfirm.com

Counsel for Appellees

BRIEF OF APPELLANT CITY OF PLANO PAGE iv

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................... i

TABLE OF CONTENTS .................................................................................. iv

INDEX OF AUTHORITIES ............................................................................. viii

STATEMENT OF THE CASE ......................................................................... xiii

REQUESET FOR ORAL ARGUMENT .......................................................... xiv

STATEMENT OF THE ISSUES PRESENTED .............................................. xv

STATEMENT OF THE FACTS ...................................................................... 2

SUMMARY OF THE ARGUMENT ............................................................... 10

ARGUMENTS AND AUTHORITIES ............................................................ 12

A. Analysis of the City’s Plea to the Jurisdiction and De NovoStandard of Review ........................................................................... 12

Issue One................................................................................................. 14

B. Whether the Trial Court Erred in Not Granting the CitySecretary and City Council’s Plea to the JurisdictionBecause Their Immunity from Suit has NotBeen Waived for the Asserted Mandamus Claims............................ 14

1. Texas State Law has Long Imposed Limitations on theMunicipal Use of the Initiative and Referendum Process ............ 15

2. Zoning is Exempt from the Initiative and ReferendumProcess .......................................................................................... 20

a. Zoning Has Been Held to be Exempt fromInitiative and Referendum ....................................................... 20

BRIEF OF APPELLANT CITY OF PLANO PAGE v

b. The Legislature’s Amendment of Chapter 211 of the Local Government Code, Providing a Limited Statutory Right to Referendum, Did Not Alter the General Exclusion of Zoning from the Initiative and Referendum Process ......................................... 25

3. Initiative and Referendum Do No Apply to a

Long-Range Comprehensive Plan such as the PTP ..................... 26 a. Since the Inception of Zoning, Texas has Required

Zoning be in Accordance with a Comprehensive Plan ........... 26

b. Zoning Ordinance Not in Accordance with a Comprehensive Plan are Invalid ............................................. 29

c. The Adoption or Amendment of Both a Zoning

Ordinance and a Comprehensive Plan Requires Compliance with a Mandatory Procedural Process ................ 30

d. Because the City’s Comprehensive Plan is a

Part of, and Inextricable from, Zoning, It is Not Subject to Initiative and Referendum...................................... 31

e. Alternatively, Even if Technically Separate from

Zoning, the Adoption of a Comprehensive Plan Requires Preliminary Actions such as the Holding of Hearings and the Use of Experts and Technical Data, Similar to the Adoption of Zoning, and Therefore has Been “Withdrawn From the Field” of Initiative and Referendum .................................................. 34

BRIEF OF APPELLANT CITY OF PLANO PAGE vi

4. Because a Comprehensive Plan is Not Properly Subject to Referendum, the City Secretary and City Council are Immune from Appellees’ Mandamus Action Because Appellees Have Failed to Plead that the Violated a Ministerial Duty .................................................... 38

5. No Pleading Amendment Will Cure Appellees’ Jurisdictional Defects .......................................................................................... 44

Issue Two ................................................................................................ 45

C. The Trial Court Erred in Not Granting the City’s Plea to the Jurisdiction With Regard to the Appellees’ Declaratory Judgment Claims Asserted Against It ............................................... 45 1. The City is Immune From Plaintiffs’ Claims for Declaratory

Relief, Which Seek to Construe or Interpret a Statute ................. 45

2. Alternatively, Appellees Lack Standing to Seek Declaratory Relief From the City ..................................................................... 48

3. No Pleading Amendment Will Cure Appellees’ Jurisdictional

Defects .......................................................................................... 50

4. Alternatively, Appellees’ Declaatory Judgment Claims Against the City Necessarily Fail Because the PTP Is Not Subject to Referendum Petition.................................................... 51

Issue Three .............................................................................................. 51

D. The Trial Court Erred by Failing to Grant the City and the City Council’s Plea to the Jurisdiction in that the Only Ripe Claim Pleaded by Appellants is Their Mandamus Claim Against the City Secretary ................................................................. 51

PRAYER ........................................................................................................... 55

BRIEF OF APPELLANT CITY OF PLANO PAGE vii

CERTIFICATE OF SERVICE ......................................................................... 57

CERTIFICATE OF COMPLIANCE ................................................................ 58

BRIEF OF APPELLANT CITY OF PLANO PAGE viii

INDEX OF AUTHORITIES

Cases Pages Alejos v. State, 433 S.W.3d 112 (Tex. App.—Austin 2014, no pet.) ............... 49 Avery v. LPP Mortgage, Ltd, 01-14-01007-CV, 2015 WL 6550774 (Tex. App.—Houston [1st Dist.] Oct. 29, 2015, no pet.) ................................. 4, 32 Bernard v. City of Bedford, 593 S.W.2d 809 (Tex. Civ. App.—Fort Worth 1980, writ ref’d n.r.e.) ....................................... 27 Bland Independent School Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) ............. 13, 49 Bolton v. Sparks 362 S.W.2d 946 (Tex. 1962) ................................................. 22 Brennan v. City of Willow Park, 376 S.W.3d 910 (Tex. App.—Fort Worth 2012, pet. denied) ..................................................... 14 City of Canyon v. Fehr, 121 S.W.3d 899 (Tex. App.—Amarillo 2003, no pet.) ............................................................... 25 City of Dallas v. Texas Ezpawn, L.P., 05-12-01269-CV, 2013 WL 1320513 (Tex. App.—Dallas Apr. 1, 2013, no pet.) .................. 46, 48 City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ......................... 13, 39, 47 City of El Paso v. Hernandez, 16 S.W.3d 409 (Tex. App.—El Paso 2000, pet. denied) ........................................................... 13 City of McKinney v. Hank’s Rest. Group, L.P., 412 S.W.3d 102 (Tex. App.—Dallas 2013, no pet.) .................................................................... 46, 48 City of Paris v. Abbott, 360 S.W.3d 567 (Tex. App.—Texarkana 2011, pet. denied) ...................................................... 3 City of Pharr v. Tippitt, 616 S.W.2d 173 (Tex. 1981) ...................................... 28, 29

BRIEF OF APPELLANT CITY OF PLANO PAGE ix

City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003) ................. 17 City of San Antonio v. Hunt, 458 S.W.2d 952 (Tex. Civ. App.—San Antonio 1970) (Cadena, J., dissenting), rev’d 462 S.W.2d 536 (Tex. 1971) ........................................................................................................ 27 Coalson v. City Council of Victoria, 610 S.W.2d 744 (Tex. 1980) .................. 38, 40 Coffee City v. Thompson, 535 S.W.2d 758 (Tex. Civ. App.—Tyler 1976, writ ref’d n.r.e.) ........................................................................................... 29, 31, 33 Dallas Area Rapid Transit. v. Whitley, 104 S.W.3d 540 (Tex. 2003) .............. 13 Dallas Ry. Co. v. Geller, 271 S.W. 1106 (Tex. 1925) ...................................... 18 Denman v. Quin, 116 S.W.2d 783 (Tex. Civ. App.—San Antonio 1938, writ ref’d) .............................................................................. 18, 21, 25, 37, 40 Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566 (Tex. 2013) ..................... 49 Glass v. Smith, 244 S.W.2d 645 (Tex. 1951) .................................................. passim Hampton v. Univ. of Texas--M.D. Anderson Cancer Ctr., 6 S.W.3d 627 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ........................................ 13 Hancock v. Rouse, 437 S.W.2d 1 (Tex. Civ. App.—Houston [1st Dist.] 1969, writ ref'd n.r.e.) ...................................................................................... passim Harris County Mun. Util. Dist. No. 156 v. United Somerset Corp., 274 S.W.3d 133 (Tex. App.—Houston [1st Dist.] 2008, no pet.) .............. 52, 53-54 In re Arnold, 443 S.W.3d 269 (Tex. App.—Corpus Christi 2014, orig. proceeding) ............................................................................................. passim In re Griffith, 485 S.W.3d 529 (Tex. App.—Houston [14th Dist.] 2015, no pet.) .................................................................................................... 12 In re Roof, 130 S.W.3d 414 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ............................................................................................................... 39, 40

BRIEF OF APPELLANT CITY OF PLANO PAGE x

In re Ryan, 13-08-00179-CV, 2008 WL 1822442 (Tex. App.—Corpus Christi April 18, 2013, original proceeding) ..................................................... 41 Kessling v. Friendswood Indep. Sch. Dist., 302 S.W.3d 373 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) ...................................... 49 Lazarides v. Farris, 367 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012, no pet.) .................................................................................................... 52 Machete’s Chop Shop, Inc. v. Texas Film Commission, 483 S.W.3d 272 (Tex. App.—Austin 2016, no pet.) ............................................................ 12, 38 Mayhew v. Town of Sunnyvale, 774 S.W.2d 284 (Tex. App.—Dallas 1989, writ denied) .......................................................... passim McCutcheon v. Wozencraft, 116 Tex. 440, 294 S.W. 1105 (Tex. 1927) ........................................................................................................ 17 Miller v. South East Texas Regional Planning Com’n, 03-111-00817-CV, 2013 WL 3724716 (Tex. App.—Austin, July 11, 2013, no pet.) ..................... 13, 38 Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439 (Tex. 1998) .................................................................................... 52 Robinson v. Parker, 353 S.W.3d 753 (Tex. 2011) ..................................... 52, 53, 54 San Pedro N., Ltd. v. City of San Antonio, 562 S.W.2d 260 (Tex. Civ. App.—San Antonio 1978, writ ref'd n.r.e.) ................................... passim Southwestern Telegraph & Telephone Co. v. City of Dallas, 104 Tex. 114, 134 S.W. 321 (Tex. 1911) ......................................................... 17, 18 Taxpayers’ Ass’n of Harris County v. City of Houston, 129 Tex. 627 (1937) ................................................................................................................ 15 Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) .................................................................................................. 13, 48, 50

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Tex. Dept. Of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) .................................................................................................. 13, 44, 51 Tex. Music Library & Research Ctr. v. Tex. Dep’t of Transp., 13-13-00600-CV, 2014 WL 3802992 (Tex. App.—Corpus Christi Jul. 31, 2014, pet. denied) ................................................................................. 14, 43 Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) .................. 44, 50 Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993) .................................................................................................. 13, 48, 50 Texas Department of Transportation v. Jones, 8 S.W.3d 636 (Tex. 1999) ........................................................................................................ 13 Texas Dept. of Transportation v. Sefzik, 355 S.W.3d 618 (Tex. 2011) ........................................................................................................ 46 Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692 (Tex. 2003) ............. 14 Statutes and Constitutions Pages Acts of 1927, 40th Leg., R.S., ch. 283, § 3, Tex. Rev. Civ. Stat. Ann. Arts. 1011a—1011j ......................................................................... 26 City of Plano City Charter § 7.02 .............................................................. 3, 5, 6, 7 City of Plano City Charter § 7.03 ...................................................... 3, 6, 47, 53, 54 City of Plano Zoning Ordinance ....................................................................... 4, 32 Tex. Civ. Prac. & Rem. Code § 37.004 ............................................................ 46 Tex. Civ. Prac. & Rem. Code § 37.006 ............................................................ 46, 47 TEX. CONST. art. V, § 8 ..................................................................................... 14 Tex. Local Gov’t Code § 211.003 .................................................................... 27

BRIEF OF APPELLANT CITY OF PLANO PAGE xii

Tex. Local Gov’t Code § 211.004 ............................................................. 26, 34, 35 Tex. Local Gov’t Code § 211.006 .................................................................... 30, 31 Tex. Local Gov’t Code § 211.007 .................................................................... 31 Tex. Local Gov’t Code §211.015 ..................................................................... 25 Tex. Local Gov’t Code § 213.001 .................................................................... 4 Tex. Local Gov’t Code § 213.002 .............................................................. 4, 28, 35 Tex. Local Gov’t Code § 213.003 ....................................................... 30, 31, 35, 36 Tex. R. Evid. 204 .............................................................................................. 6, 7 Other Sources Pages Charles M. Haar, In Accordance with a Comprehensive Plan, 68 HARV. L. REV. 1154 (1955) ......................................................................... 27 JOHN MIXON ET AL., TEXAS MUNICIPAL ZONING LAW (3d ed. 2015) ............... 26, 27

BRIEF OF APPELLANT CITY OF PLANO PAGE xiii

STATEMENT OF THE CASE

Appellees’ suit seeks declaratory relief against the City of Plano and

mandamus relief against its City Secretary and the members of its City Council,

each sued only in their official capacities. (C.R. 92-105).1 After answering the

petition, Appellants filed a Plea to the Jurisdiction challenging the trial court’s

jurisdiction over the asserted claims. (C.R. 89, 246, 261). After hearing oral

arguments, the trial court orally denied the Appellants’ Plea to the Jurisdiction

from the bench and memorialized same by order dated May 16, 2016. (C.R. 8,

369). On that same day, Appellants perfected their accelerated interlocutory appeal

pursuant to Tex. Civ. Prac. & Rem. Code §51.014(8). (C.R. 370).

1 Citations to the Clerk’s Record will be denoted “C.R.”

BRIEF OF APPELLANT CITY OF PLANO PAGE xiv

REQUEST FOR ORAL ARGUMENT

Appellants request oral argument herein because they believe it would

materially aid in the disposition of this appeal.

BRIEF OF APPELLANT CITY OF PLANO PAGE xv

STATEMENT OF THE ISSUES PRESENTED

Issue One: Whether the trial court erred by denying the City Secretary and City Council’s Plea to the Jurisdiction as to Appellees’ claims seeking mandamus relief against them?

Issue Two: Whether the trial court erred by denying the City’s Plea to the

Jurisdiction as to Appellees’ claims which sought declaratory judgment against it?

Issue Three: Whether the trial court erred by denying the City and City

Council’s Plea to the Jurisdiction due to the fact that Appellees’ only ripe claim is their mandamus claim against the City Secretary?

BRIEF OF APPELLANT CITY OF PLANO PAGE 1

No. 05-16-00573-CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS __________________________________________________________________ CITY OF PLANO, TEXAS; LISA HENDERSON, IN HER OFFICIAL CAPACITY AS CITY SECRETARY; HARRY LAROSILIERE, IN HIS OFFICIAL CAPACITY AS MAYOR; ANGELA MINER, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; BEN HARRIS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RICK GRADY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; LISSA SMITH, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RON KELLEY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; TOM HARRISON, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; AND DAVID DOWNS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL

Appellants vs. ELIZABETH CARRUTH; MATTHEW TIETZ; JANIS NASSERI; JUDITH

KENDLER AND STEPHEN PALMA

Appellees __________________________________________________________________

BRIEF OF APPELLANTS __________________________________________________________________

BRIEF OF APPELLANT CITY OF PLANO PAGE 2

TO THE HONORABLE FIFTH COURT OF APPEALS:

COME NOW the City of Plano, Texas (“City”); Lisa Henderson, in her

official capacity as City Secretary (the “City Secretary”); Harry LaRosiliere, in his

official capacity as Mayor; Angela Miner, in her official capacity as member of the

City Council; Ben Harris, in his official capacity as member of the City Council;

Rick Grady, in his official capacity as member of the City Council; Lissa Smith, in

her official capacity as member of the City Council; Ron Kelley, in his official

capacity as member of the City Council; Tom Harrison, in his official capacity as

member of the City Council; and David Downs, in his official capacity as member of

the City Council (all members collectively the “City Council”) (all Appellants

collectively “Appellants”), the Appellants herein and the Defendants in the trial

court below, and file this their Brief, and in support thereof would show:

STATEMENT OF THE FACTS

Appellees have brought the instant lawsuit against the City and its City

Secretary and the members of its City Council, all in their official capacities, seeking

mandamus and declaratory relief relating to a citizen-petition (the “Petition”)

submitted by Appellees which sought to compel the City Council to reconsider its

enactment of an ordinance adopting a long-range comprehensive development plan

BRIEF OF APPELLANT CITY OF PLANO PAGE 3

(the “Ordinance”) and, if it did not repeal same, submit the Ordinance to popular

vote. See generally (C.R. 92-105).

Stated more thoroughly, Appellees concede that the City is a home-rule

municipal corporation organized under the laws of the State of Texas. (C.R. 95 (¶ 8),

98 (¶ 29)). The City’s home rule charter (“Charter”) contains provisions which

provide for the enactment or repeal of legislation via initiative and referendum by

the citizens of the City. (C.R. 98 (¶ 29)); see also City of Plano City Charter §§ 7.02,

7.03, available at

https://www2.municode.com/library/tx/plano/codes/code_of_ordinances.1

According to Appellees, in 1963 the City first adopted a formal

comprehensive plan for long-range development. (C.R. 97 (¶ 23)). In 1986 it

adopted its second comprehensive plan, which was subsequently amended but, as a

whole, constituted the Amended 1986 Comprehensive Plan. (C.R. 97 (¶ 23)).

Approximately thirty (30) years later, the City prepared a new comprehensive plan,

which was adopted by Ordinance 2015-10-9 (the “Ordinance”). (C.R. 97-98 (¶¶

26-27)), 108-167). The Ordinance repealed the Amended 1986 Comprehensive Plan

and adopted the “Plano Tomorrow Comprehensive Plan” (PTP). (C.R. 98 (¶ 27), 109

(§ IV)). Attached to the Ordinance were certain documents pertinent to the PTP, but 1 Courts have taken judicial notice of municipal codes published on the municode code repository website. See City of Paris v. Abbott, 360 S.W.3d 567, 573 n.6 (Tex. App.—Texarkana 2011, pet. denied).

BRIEF OF APPELLANT CITY OF PLANO PAGE 4

these were only “the strategic framework of the plan” consisting of “vision

statements, policies, action statements, and maps” rather than the PTP in its entirety.

(C.R. 109 (§ II)).

The PTP was passed pursuant to Texas Local Government Code § 213.001,

which governs the adoption by municipalities of long-range comprehensive plans.

(C.R. 108 (recital 3)). The PTP serves as a guideline that establishes a general plan

for the long-range development of the City. (C.R. 108 (recital 4)). It addresses

matters such as land use, transportation, housing, building efficiency, environmental

quality, and the City’s economic environment. (C.R. 110); see Tex. Local Gov’t

Code § 213.002(b)(1). The City’s Zoning Ordinance itself references in numerous

places the comprehensive plan and requires compliance with the comprehensive

plan in order to be in compliance under the Zoning Ordinance. See City of Plano

Zoning Ordinance, available at

https://www.plano.gov/DocumentCenter/View/12755 (last accessed July 3, 2016);2

(C.R. 274, 309-11). The PTP was adopted only after receiving over 20,000

comments and ideas from over 4,000 individuals and over 40 organizations, which

input was received via surveys, open houses, public workshops and public hearings

over a 26-month period. (C.R. 108 (recital 5), 304-07). Moreover, the City’s 2 Information from government websites is self-authenticating and the Court may take judicial notice of same. Avery v. LPP Mortgage, Ltd, 01-14-01007-CV, 2015 WL 6550774, at *3 (Tex. App.—Houston [1st Dist.] Oct. 29, 2015, no pet.).

BRIEF OF APPELLANT CITY OF PLANO PAGE 5

Planning and Zoning Commission served as the PTP advisory committee and

conducted twenty-two (22) work sessions with 50 hours of discussion, which

resulted in an initial plan followed by two additional draft plans, each of which was

revised based upon public comments. (C.R. 108 (recital 6), 304-07). The Planning

and Zoning Commission also held public hearings on the PTP on March 2, 2015,

April 20, 2015, and September 21, 2015. (C.R. 108 (recital 7), 304-07). In any event,

the City’s Planning and Zoning Commission ultimately recommended approval of

the PTP. (C.R. 108). On October 12, 2015, the City Council held a public hearing

regarding the PTP and subsequently adopted same by passing the Ordinance. (C.R.

108 (recitals 8, 9), 109). Further, as noted, the adoption of the Ordinance resulted in

the express repeal of the Amended 1986 Comprehensive Plan. (C.R. 109 (§ IV)).

After the adoption of the Ordinance, citizens began an effort to collect

signatures on a petition requesting a referendum on the Ordinance. (C.R. 99 (¶ 31)).

In this regard, the City’s Charter provides that

Qualified voters of the City of Plano may require that any ordinance or resolution, with the exception of ordinances or resolutions levying taxes, passed by the city council be submitted to the voters of the city for approval or disapproval by submitting a petition for this purpose within thirty (30) days after final passage of said ordinance or resolution, or within thirty (30) days after its publication. Said petition shall be addressed, prepared, signed and verified as required for petitions initiating legislation as provided in section 7.02 of this charter and shall be submitted to the person performing the duties of city secretary. Immediately upon the filing of such petition, the person performing the duties of city secretary shall present said petition to the

BRIEF OF APPELLANT CITY OF PLANO PAGE 6

city council. Thereupon the city council shall immediately reconsider such ordinance or resolution and if it does not entirely repeal the same, shall submit it to popular vote as provided in section 7.02 of this charter. Pending the holding of such election such ordinance or resolution shall be suspended from taking effect and shall not later take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof.

Charter § 7.03, available at

https://www2.municode.com/library/tx/plano/codes/code_of_ordinances; Tex. R.

Evid. 204; see also (C.R. 98 (¶ 29)) (quoting Charter). The referenced section 7.02

provides that

Qualified voters of the City of Plano may initiate legislation by submitting a petition addressed to the city council which requests the submission of a proposed ordinance or resolution to a vote of the qualified voters of the city. Said petition must be signed by qualified voters of the city equal in number to twenty (20) percent of the number of votes cast at the last regular municipal election of the city, or one hundred fifty (150), whichever is greater, and each copy of the petition shall have attached to it a copy of the proposed legislation. The petition shall be signed in the same manner as recall petitions are signed, as provided in section 6.02 of this charter, and shall be verified by oath in the manner and form provided for recall petitions in section 6.03 of this charter. The petition may consist of one (1) or more copies as permitted for recall petitions in section 6.04 of this charter. Such petition shall be filed with the person performing the duties of city secretary. Within five (5) days after the filing of such petition, the person performing the duties of city secretary shall present said petition and proposed ordinance or resolution to the city council. Upon presentation to it of the petition and draft of the proposed ordinance or resolution, it shall become the duty of the city council, within ten (10) days after receipt thereof, to pass and adopt such ordinance or resolution without alteration as to meaning or effect in the opinion of the persons filing the

BRIEF OF APPELLANT CITY OF PLANO PAGE 7

petition, or to call a Special Election in accordance with the Election Code.3

Charter § 7.02, available at

https://www2.municode.com/library/tx/plano/codes/code_of_ordinances; Tex. R.

Evid. 204.

Appellees assert that the number of petition signatures needed to compel

action by the City Council under the Charter was 1,860 and that a petition addressed,

prepared, signed, and verified as required by the Charter and containing over 4,000

signatures (the “Petition”) was submitted to the City Secretary on November 10,

2015. (C.R. 99 (¶ 31)). On November 23, 2015, the City Council met to discuss the

Petition. (C.R. 100 (¶ 33)). According to Appellees, upon the advice of counsel that

the Ordinance at issue was not subject to referendum power, no action was taken by

the City Council. (C.R. 100 (¶ 33)).

Appellees assert that the City Council’s failure to act was improper and that

the Charter requires the City Secretary to present the Petition to the City Council,

who then must reconsider the Ordinance and, in the absence of its being repealed,

3 The signing, form and submission of the Petition, governed by the referenced sections 6.02, 6.03 and 6.04 of the Charter, are not at issue herein.

BRIEF OF APPELLANT CITY OF PLANO PAGE 8

submit it to a popular vote. (C.R. 99 (¶ 30)). Based upon those assertions, Appellees,

in their Petition, seek the issuance of writs of mandamus compelling4

the City Secretary to present the Petition to the City Council within fourteen (14) days; and

the members of the City’s city council to (1) reconsider the Ordinance and (2) submit the Ordinance to a popular vote in the event that they do not vote to repeal it.

(C.R. 104-05) (Part VIII). Further, Appellees seek a declaratory judgment against

the City declaring that

unless and until a majority of the voters approve the Ordinance in a referendum, the Ordinance has been suspended from taking effect and is invalid;

unless and until a majority of the voters approve the Ordinance in a referendum, the comprehensive plan adopted by the ordinance is not the City’s long-range comprehensive plan; and

unless and until a majority of the voters approve the Ordinance in a

referendum, the City’s prior comprehensive plan, enacted in 1986, is its current long-range comprehensive plan.

(C.R. 105).

In any event, Appellees filed their Original Petition in the case at bar on

February 1, 2016. (C.R. 9). Appellants filed their Original Answer on March 4,

4 Appellees’ Original Petition was largely unclear with regard to what relief was being sought from which defendants, and Appellants’ Plea to the Jurisdiction dealt with many of these issues wherein relief was improperly sought from certain parties. However, Appellees’ First Amended Petition provides clarity that, in fact, they seek mandamus relief only from the City Secretary and the City Council, rather than from the City, and that they seek declaratory relief only from the City, rather than from the City Secretary or the City Council. (C.R. 104-05).

BRIEF OF APPELLANT CITY OF PLANO PAGE 9

2016. (C.R. 89). Appellees filed a First Amended Petition on Friday, April 29, 2016,

their live pleading, which clarified the parties from which certain relief was sought, a

matter which was ambiguous in Appellees’ Original Petition. (C.R. 9-23, 92-106).

On Monday, May 2, 2016, Appellants filed a First Amended Answer in which they

specifically asserted their entitlement to immunity from suit. (C.R. 246, 247). That

same day, they also filed their Plea to the Jurisdiction, an amended version of which

was filed on May 3, 2016 correcting certain non-substantive errors.5 (C.R. 261). In

pertinent part, Appellants asserted in their Plea to the Jurisdiction that

(1) Appellees had not stated a mandamus claim within the limited waiver of immunity of the City Secretary and the City Council, all in their official capacities, as no failure to perform a ministerial act had been pleaded by Appellees because a comprehensive plan is not subject to a referendum petition;

(2) Appellees had not stated a declaratory judgment claim within the City’s limited waiver of immunity; and

(3) Alternatively, the only claim asserted by Appellees which was ripe was their mandamus claim against the City Secretary.

(C.R. 261-302). Appellees filed their response to Appellants’ Plea to the Jurisdiction

on May 12, 2016. (C.R. 314). In turn, Appellants filed their Reply to Plaintiffs’

Response to their Plea to the Jurisdiction on May 13, 2016. (C.R. 348).

5 Appellants’ Plea to the Jurisdiction was filed based upon Appellees’ Original Petition and, as a result, while the substantive immunity arguments remain, many of the arguments asserted therein which related to the proper parties are not pertinent to this appeal. Much of this was clarified in Appellants’ Reply brief. See (C.R. 348-50).

BRIEF OF APPELLANT CITY OF PLANO PAGE 10

Appellants’ Plea to the Jurisdiction was set for hearing on May 16, 2016.

(C.R. 312). After listening to the arguments of the parties, the trial court orally

denied Appellants’ Plea to the Jurisdiction from the bench and memorialized same

by written order that same day. (C.R. 8, 369). Thereafter that same day, Appellants

filed their Notice of Interlocutory Appeal. (C.R. 370). The Clerk’s Record was filed

with this Court on May 26, 2016, and the Reporter’s Record on June 13, 2016.

SUMMARY OF THE ARGUMENT

The trial court erred by denying Appellants’ Plea to the Jurisdiction. With

regard to the Plea to the Jurisdiction filed by the City Secretary and the City Council,

all sued only in their individual capacities, Appellees have failed to plead and prove

that any of these officials failed to perform a ministerial duty which would subject

them to mandamus relief. Specifically, Appellees’ assertion that the submission of

the Petition triggered a duty for the City Secretary to present the Petition to the City

Council and for the City Council to take some action, as provided by the Charter, is

incorrect due to the fact that the Ordinance in question, which Appellees sought to

subject to referendum, adopted a comprehensive plan in accordance with Chapter

213 of the Local Government Code, which subject matter has been withdrawn from

the field of citizen initiative and referendum power. Because no ministerial duty was

BRIEF OF APPELLANT CITY OF PLANO PAGE 11

violated by the City Secretary or City Council, their immunity from suit has not been

waived and their Plea to the Jurisdiction should have been granted.

Further, the trial court erred by denying the City’s Plea to the Jurisdiction. In

this regard, Appellees’ claims for declaratory relief do not seek declaratory

judgment that the Ordinance is invalid but, rather, seek an interpretation of the

City’s ordinances in the event that the Petition falls within the scope of citizen

initiative and referendum power. Because the City’s immunity from suit has not

been waived from such claims its Plea to the Jurisdiction should have been granted.

Further, and in the alternative, Appellees lack standing to seek a declaratory

judgment against the City seeking a general interpretation of the application of the

City’s ordinances, and its Plea to the Jurisdiction should have similarly been granted

on this ground.

Finally, and further in the alternative, the only claim asserted by Appellees

which is even ripe for this Court’s review is Appellees’ claim for mandamus relief

against the City Secretary. All of Appellees’ other claims rely upon the occurrence

of future events which may, but may not, occur in the event the Petition is presented

to the City Council for review. Since the City Council, upon such presentation, could

make a legislative decision to repeal the Ordinance, Appellees claims presupposing

that they will not do so are not ripe.

BRIEF OF APPELLANT CITY OF PLANO PAGE 12

ARGUMENT AND AUTHORITIES

A. ANALYSIS OF THE CITY’S PLEA TO THE JURISDICTION AND DE NOVO STANDARD OF REVIEW

Appellants’ accelerated appeal of the trial court’s denial of its Plea to the

Jurisdiction is grounded upon statute. Specifically, Tex. Civ. Prac. & Rem. Code §

51.014(a)(8) expressly provides that such an appeal may be taken from an

interlocutory order which “denies a plea to the jurisdiction by a governmental

unit[.]” This statutory right to interlocutory appeal extends to suits against

government officials sued in their official capacities where the issue on appeal is

whether their actions were ultra vires or were, rather, actions for which the official

enjoys governmental immunity. 6 In re Griffith, 485 S.W.3d 529, 533 (Tex.

App.—Houston [14th Dist.] 2015, no pet.). A failure to plead that an existing

ministerial duty was violated deprives the court of jurisdiction over a purported ultra

vires claim. See Machete’s Chop Shop, Inc. v. Texas Film Commission, 483 S.W.3d

272, 284 (Tex. App.—Austin 2016, no pet.) (affirming grant of plea to the

jurisdiction where the “live petition does not allege acts . . . that were beyond its

statutory authority nor does it complain of a state official's failure to perform a

ministerial act”); Miller v. South East Texas Regional Planning Com’n,

6 To satisfy the ultra vires exception to governmental immunity, a plaintiff “must not complain of a government officer’s exercise of discretion, but rather must allege . . . that the officer acted without legal authority or failed to perform a purely ministerial act.” City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).

BRIEF OF APPELLANT CITY OF PLANO PAGE 13

03-111-00817-CV, 2013 WL 3724716, at *5 (Tex. App.—Austin, July 11, 2013, no

pet.) (affirming grant of jurisdictional plea where plaintiff failed to plead facts

supporting a finding that defendant failed to perform a ministerial duty). Further, the

trial court’s denial of the Appellants’ Plea to the Jurisdiction is reviewed by this

Court under a de novo standard of review. Tex. Dept. Of Parks and Wildlife v.

Miranda, 133 S.W.3d 217, 225 (Tex. 2004); Dallas Area Rapid Transit. v. Whitley,

104 S.W.3d 540, 542 (Tex. 2003).

In any event, it is well established that governmental immunity from suit

defeats a trial court’s subject matter jurisdiction. Texas Department of

Transportation v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999). The purpose of a plea

to the jurisdiction is to defeat a cause of action based on lack of jurisdiction, without

regard to whether the claim has merit. Bland Independent School Dist. v. Blue, 34

S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdiction is never presumed.

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993).

In fact, it is the Appellees’ burden to plead and prove a waiver of the Appellants’

immunity from suit. City of El Paso v. Hernandez, 16 S.W.3d 409, 414 (Tex.

App.—El Paso 2000, pet. denied); see also Hampton v. Univ. of Texas--M.D.

Anderson Cancer Ctr., 6 S.W.3d 627, 629 (Tex. App.—Houston [1st Dist.] 1999, no

pet.) (it is the plaintiff's burden to allege and prove facts affirmatively showing trial

court has subject matter jurisdiction). Further, when determining whether there has

BRIEF OF APPELLANT CITY OF PLANO PAGE 14

been a clear and unambiguous waiver of immunity from suit, the trial court is to

resolve any ambiguity in favor of retaining immunity. Wichita Falls State Hospital

v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003).

Issue One: Whether the trial court erred by denying the City Secretary and City Council’s Plea to the Jurisdiction as to Appellees’ claims seeking mandamus relief against them?

B. THE TRIAL COURT ERRED BY DENYING THE CITY

SECRETARY AND CITY COUNCIL’S PLEA TO THE JURISDICTION BECAUSE THEIR IMMUNITY FROM SUIT HAS NOT BEEN WAIVED FOR THE ASSERTED MANDAMUS CLAIMS

The trial court erred by not granting the City Secretary and the City Council’s

Plea to the Jurisdiction because their immunity from suit has not been waived for the

mandamus actions brought by Appellees.7 In this regard, the Texas Constitution

empowers the district courts of this state "to issue writs of mandamus to compel

public officials to perform ministerial acts." Brennan v. City of Willow Park, 376

S.W.3d 910, 926-27 (Tex. App.—Fort Worth 2012, pet. denied) (citing TEX.

CONST. art. V, § 8). However, where a viable claim for a writ of mandamus has not

been stated against a public official, the official retains his immunity from suit. Tex.

Music Library & Research Ctr. v. Tex. Dep’t of Transp., 13-13-00600-CV, 2014

WL 3802992, at *16 (Tex. App.—Corpus Christi Jul. 31, 2014, pet. denied).

7 As noted supra, Appellees now seek only mandamus relief against the City Secretary and City Council, all sued only in their official capacities. See supra at note 5; (C.R. 92, 104-05).

BRIEF OF APPELLANT CITY OF PLANO PAGE 15

Appellees claim that the City Secretary and City Council failed to present and

consider, respectively, the referendum Petition which was submitted by they and

other citizens of the City. (C.R. 103-05). However, while the City’s Charter does

provide for an initiative and referendum procedure, superseding State law precludes

the use of initiative and referendum petitions in circumstances such as the enactment

of a long-range comprehensive development plan. As a result, as detailed below,

because they did not fail to perform a ministerial duty, the trial court erred by

denying the City Secretary and City Council’s Plea to the Jurisdiction, and the

mandamus claims against them should be dismissed for lack of subject matter

jurisdiction.

1. Texas State Law Has Long Imposed Limitations on the Municipal Use of the Initiative and Referendum Process

Texas courts recognize the existence of referendum power when said power

has been reserved through a municipal charter’s provisions. This power has been

described as “a power reserved to [the people], and not the exercise of a right

granted.” Taxpayers’ Ass’n of Harris County v. City of Houston, 129 Tex. 627, 632

(1937). Accordingly, this power is liberally construed in favor of the power

reserved. Glass v. Smith, 244 S.W.2d 645, 649 (Tex. 1951); Taxpayers’ Ass’n of

Harris County, 129 Tex. at 632. However, in Glass the Texas Supreme Court made

it clear that the broad construction of the initiative and referendum power has its

BRIEF OF APPELLANT CITY OF PLANO PAGE 16

clear limits. Glass, 244 S.W.3d at 649. Indeed, even in Glass, where the Supreme

Court found the passage of a civil service classification ordinance was within the

permissible scope of electoral legislation, the court drew lines and emphasized that

the availability of the initiative and referendum processes “is not unlimited.” Id. at

649. This power “is first limited by the very nature of the proceeding.” Id. at 649.

Moreover, limits exist even where the municipal charter itself does not contain a

limit on the initiative or referendum power of the citizens, and these superseding

state limits have been read into municipal charters by the courts. Id. at 649.

The Glass court recognized two circumstances where limits exist which

preclude the citizens of a municipality from utilizing the initiative and referendum

process: (1) where the Texas Legislature has “expressly conferred [a delegated

legislative power] upon the municipal governing body exclusively,”8 and (2) where

“there was some preliminary duty such as the holding of hearings, etc., impossible of

performance by the people in an initiative proceeding, by statute or charter made a

prerequisite to the exercise of the legislative power.” Glass, 244 S.W.2d at 653. The

Glass court reached this conclusion by analyzing the existing law of this State,

which remains pertinent to the case at bar.

8 Glass further notes that where the “general law . . . confer[s] on the city council exclusively the authority to pass ordinances dealing with the subject matter of th[e] ordinance . . . it follows that by necessary implication the subject matter of the ordinances has been withdrawn from the field in which the initiatory process is operative.” Glass, 244 S.W.2d at 650.

BRIEF OF APPELLANT CITY OF PLANO PAGE 17

For example, in McCutcheon v. Wozencraft, 116 Tex. 440, 294 S.W. 1105

(Tex. 1927), a private bus company sought a referendum on a franchise for its use of

the streets. The court held that there was a specific statutory scheme that governed

the circumstances under which a franchise could be submitted to the citizenry for a

vote, and that this statutory mandate trumped any general municipal charter

provision permitting initiative and referendum. Id. at 443-45.

In Southwestern Telegraph & Telephone Co. v. City of Dallas, 104 Tex. 114,

134 S.W. 321 (Tex. 1911), the voters acted by initiative ordinance to limit the rates

for telephone service. The court invalidated that act by the electorate based on

municipal charter provisions that required public hearings to set rates for such

services. Id. at 119, 121. The Court observed:

In the exercise of the power to regulate and fix rates, etc., there must be a body who can hear evidence and decide upon the reasonableness or unreasonableness of the rate or regulation, and if that cannot be done by the initiative-the popular vote-then, the authority cannot be exercised in that manner. Can it be necessary to offer argument to show to any man that such hearing as the law provides could not be had in a campaign before the electorate of the city? It is too manifest for controversy. Can it be supposed that a Legislature 9 would require a board of commissioners to secure a fair hearing to the party to be affected, and yet would permit some unknown party to draft an ordinance, specifying rates and regulations, without the knowledge of any facts, and submit such ordinance to the popular vote where there can neither be an

9 Southwestern Telegraph & Telephone Co. dates from a time prior to the enactment of the Home Rule Amendment, which altered the longstanding practice of having special charters individually granted and amended by the Legislature for the State’s larger cities. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 26 n.5 (Tex. 2003).

BRIEF OF APPELLANT CITY OF PLANO PAGE 18

investigation nor any character of ascertainment of the facts? That would be to place upon the language of the charter an unreasonable construction. If the charter provided for the submission of such issues to the voters at large, its validity would, at least, be questionable.

* * * * *

Th[e] charter secured to the plaintiff in error ‘a fair hearing,’ and, as such hearing was not and could not be had in the adoption of this ordinance [by initiative], it was not enacted in accordance with the charter and is void.

Southwestern Telegraph & Telephone Co., 104 Tex. at 121.

In Dallas Ry. Co. v. Geller, 271 S.W. 1106 (Tex. 1925), the court applied the

rule from Southwestern Telephone again, finding that setting rates is incompatible

with an election because it was a subject which “is at least impracticable, if not

impossible, for the public at large, the voters, to pass on. They cannot have or digest

the information, data, and facts necessarily incident and essential to the forming of a

correct, accurate, and fair judgment upon the subject.” Id. at 1107.

This focus on data and information was again addressed in Denman v. Quin,

116 S.W.2d 783 (Tex. Civ. App.—San Antonio 1938, writ ref’d), where the court

addressed the right of the voters to set aside the city budget and tax rate by

referendum. The court rejected that right under charter provisions that were

otherwise unlimited. In pertinent part, the Court focused on the complexity of the

matter involved and observed—directly analogous to the complex comprehensive

plan that Appellees seek to cast aside—that

BRIEF OF APPELLANT CITY OF PLANO PAGE 19

It seems to be perfectly obvious, too, that ordinances which must rest upon minute investigation of facts and figures, or application of expert, skilled, or technical knowledge, or upon audits, or upon close and careful study or ascertainment or adjustment of masses of facts and figures, such as the elements entering into matters of rate making, cannot be efficiently initiated or passed upon by the public en masse, however intelligent and patriotic they may be. * * * * * It must now be presumed that the board correctly ascertained the city’s obligations and the cost of servicing them, and correctly estimated the expense of maintenance of the city’s government and affairs during the fiscal year in question. That being true, there remained only the administrative duty of calculating the approximate amount of money required to meet those burdens, and fixing a tax levy sufficient to raise that amount. That was the object and effect of the ordinance under attack here. That ordinance, which plaintiffs would have subjected to a referendum, and by that process passed upon by some 30,000 or more voters, consists of seventy-five paragraphs, each covering an item to be taken into consideration, in connection with all the others, in determining the rate of the tax to be levied, in order to raise the amount, previously ascertained, to support the government. Nearly every one of those items is an integral part of the whole of a complicated structure, every part of which must be consistent with and weighed against every other part. Obviously, the ordinance was not subject to the referendum invoked by plaintiffs in this case.

Id. at 786-87 (emphasis added). From Appellees’ live pleading it is clear that the

PTP is far more voluminous than the 75-paragraph 1938 Dallas City budget

ordinance. (C.R. 108-167).10

10 As noted supra, the document attached to the Ordinance was not the PTP in its entirety, but only its “strategic framework[.]” (C.R. 109 (§ II)).

BRIEF OF APPELLANT CITY OF PLANO PAGE 20

2. Zoning Is Exempt from the Initiative and Referendum Process a. Zoning Has Been Held to Be Exempt from Initiative and Referendum

In accordance with the aforementioned principles excluding certain subject

matters from the initiative and referendum power of citizens, Texas courts have

made clear that zoning may not be the subject of a referendum election but is, as

Glass termed it, a field where “the subject matter of the ordinance has been

withdrawn from the field in which the initiatory process is operative.” Glass, 244

S.W.2d at 650. The justifications for this holding have been both the procedural

prerequisites of notice and hearing required by statute for a zoning ordinance to be

enacted as well as the nature of the enactment of a zoning ordinance itself, which

requires large amounts of data and the analysis of experts.

Specifically, Texas courts have repeatedly held that zoning ordinances are not

subject to repeal by referendum vote. In Hancock v. Rouse, 437 S.W.2d 1 (Tex.

Civ. App.—Houston [1st Dist.] 1969, writ ref'd n.r.e.), the court was asked to review

the district court’s denial of a request for a writ of mandamus seeking the submission

of a zoning ordinance to initiative and referendum elections. Focusing both on the

existence of mandatory procedural prerequisites as well as the underlying study and

information required when addressing the topic of zoning, the appellate court held:

[t]hese general laws, which have been incorporated by reference into the Charter of the City of Bellaire, contemplate that comprehensive zoning ordinances, and ordinances having the purpose of changing,

BRIEF OF APPELLANT CITY OF PLANO PAGE 21

amending, or repealing such ordinances, will be enacted by the local legislative body, i.e., the City Council. This is clear from the requirement that this action must be preceded by a study made by the Zoning Commission after public hearings resulting in recommendations to the Council by the Commission, and by a public hearing before the City Council. While the City Council may authorize a joint public hearing, both the Zoning Commission and the City Council must give those interested the opportunity to attend a hearing. While the report of the Zoning Commission is advisory, the Council must await that report before taking final action. The preparation of a comprehensive Zoning Ordinance, which would meet the objectives set out in the statute, requires careful study, the accumulation of masses of detailed information concerning land use within the city, and is a matter concerning which the professional advice of one experienced in city planning would be most helpful. It would be very difficult to present the information necessary to evaluate a proposed Zoning Ordinance to the voters is an intelligible manner

Hancock 437 S.W.2d at 3-4 (emphasis added) (citing Denman, 116 S.W.2d 783).

The decision in Hancock cites and applies each of the cases set out in the Supreme

Court’s opinion in the Glass case and applies them correctly to reach its result. No

court of appeals case has subsequently held otherwise.

Nine years after Hancock, the same issue arose in San Pedro N., Ltd. v. City of

San Antonio, 562 S.W.2d 260 (Tex. Civ. App.—San Antonio 1978, writ ref'd n.r.e.).

The procedural context was a little different, as Hancock involved a mandamus suit

seeking to require an election but in San Pedro the San Antonio City Council had

already submitted the zoning ordinance amendment to the voters for a referendum,

and the vote was to repeal. Id. at 261. The San Pedro trial court had upheld the

council’s action by declaratory judgment, but the appellate court reversed and

BRIEF OF APPELLANT CITY OF PLANO PAGE 22

concluded that the property owner’s requested zoning change, previously approved

by the city council, could not be taken away by the voters via referendum. Id. at 261.

The court held that the election outcome was invalid because zoning ordinances

were not subject to the initiative and referendum provisions of the city's charter,

despite the fact that the city’s charter did not contain language excluding zoning

ordinances from its scope. Id. at 261-62. In so reasoning, the court first cited the

decision in Hancock and further relied upon Bolton v. Sparks 362 S.W.2d 946, 950

(Tex. 1962), which held that the statutory processes of notice and hearing for zoning

ordinances, which are intended for the protection of property owners, are

mandatory. San Pedro, 562 S.W.2d at 262. The San Pedro court noted that Bolton

held that compliance with the mandatory provisions of the statutes is essential to the

exercise of jurisdiction by municipal governing bodies and each act must be

performed, concluding that “[a] city can no more add a step to the procedures

required by state law than it can omit one.” Id. Moreover, the San Pedro court went

on to note additional rationales for its conclusion including, similar to the court in

Denman, the need for “continuity and expertise in zoning,” which rationales

justified the exclusion of zoning from referendum power separate and apart from the

statutory requirements of notice and hearing. Id.

The Hancock and San Pedro courts’ rationales that the need for expertise in

the area of zoning justified its withdrawal from the field of initiative and referendum

BRIEF OF APPELLANT CITY OF PLANO PAGE 23

was further discussed in In re Arnold, 443 S.W.3d 269, 277 (Tex. App.—Corpus

Christi 2014, orig. proceeding). In Arnold, the court discussed issues raised by the

relator therein which mirror those raised by Appellees in the case at bar:

Relators have also briefed and asserted significant policy reasons why the initiative and referenda process should apply and have invited us to depart from the determinations of the other courts that have considered this issue. For instance, relators contend that older law prohibiting referenda on zoning decisions was based on the reasoning that the notice and hearing provisions in statutes governing zoning determinations were inconsistent with referendum procedures, which typically did not provide for notice and hearing, so the Legislature had implicitly removed zoning decisions from the scope of initiative or referendum. See, e.g., San Pedro N., Ltd., 562 S.W.2d at 262; Hancock, 437 S.W.2d at 4. Relators thus contend that this argument has no application in this case because a referendum under the City Charter can only result after public notice and hearings. According to relators, “[r]eferendum would merely allow another layer of oversight and popular involvement in zoning changes, without eliminating any procedures, including procedures providing for citizen involvement [ ] that are required by zoning statutes.” We agree with relators that the instant case does not present concerns regarding the failure to provide notice and public hearing, however, the cases prohibiting the use of initiative and referenda are supported by other rationales. For instance, the court in San Pedro N., Ltd. also noted that its conclusion that zoning ordinances are not subject to the initiative and referendum process was based on the necessity for continuity and expertise in zoning, rather than on the statutory requirements for notice and hearing. See San Pedro N., Ltd., 562 S.W.2d at 262. Further, as stated by the Houston Court of Appeals:

The preparation of a comprehensive Zoning Ordinance, which would meet the objectives set out in the statute, requires careful study, the accumulation of masses of detailed information concerning land use within the city, and is a matter concerning which the professional advice

BRIEF OF APPELLANT CITY OF PLANO PAGE 24

of one experienced in city planning would be most helpful. It would be very difficult to present the information necessary to evaluate a proposed Zoning Ordinance to the voters in an intelligible manner.

Hancock, 437 S.W.2d at 4. In re Arnold, 443 S.W.3d at 277. As such, not only do statutory procedural requirements, which cannot be

satisfied in the initiative and referendum process, serve to remove a subject matter

from the scope of initiative and referendum, but the nature of the subject matter

requiring study, the accumulation and use of mass amounts of data, the need for

technical expertise, and the complex interconnectedness of the subject matter also

serve to withdraw a subject from the field of initiative and referendum. Glass, 244

S.W.2d at 653 (subject withdrawn from field where “there was some preliminary

duty such as the holding of hearings, etc., impossible of performance by the people

in an initiative proceeding, by statute or charter made a prerequisite to the exercise

of the legislative power”); In re Arnold, 443 S.W.3d at 277 (even where procedural

concerns are not present, necessity of continuity and expertise in zoning justifies

withdrawal of zoning ordinances from field of referendum); San Pedro, 562 S.W.2d

at 262 (complexity and mandatory statutory prerequisites supported statue’s

removal from referendum power); Hancock, 437 S.W.2d at 3-4 (zoning ordinance

not subject to referendum where it required complex study, masses of data, and

BRIEF OF APPELLANT CITY OF PLANO PAGE 25

professional advice, as well as statutory procedural prerequisites); Denman, 116

S.W.2d at 786-87 (ordinances resting on expert knowledge, requiring study or

ascertainment of masses of facts, and complexly interconnected are not subject to

referendum despite the good intentions of the public).

b. The Legislature’s Amendment of Chapter 211 of the Local Government Code, Providing a Limited Statutory Right to Referendum, Did Not Alter the General Exclusion of Zoning from the Initiative and Referendum Process

In 1993, the Legislature amended chapter 211 of the Texas Local Government

Code, adding § 211.015 thereto, which provides that voters of a home-rule

municipality may utilize a referendum process authorized by the municipality with

regard to the “initial adoption of zoning regulations by a municipality[.]” Tex. Local

Gov’t Code § 211.015(a)(2) (emphasis added). While this is a limited statutory

change from the Glass/Hancock/San Pedro rule which would ordinarily preclude

referendum of a zoning ordinance, the limited statutory exception permitting

referendum only applies to a municipality’s initial adoption of the zoning ordinance.

It is not otherwise applicable. Indeed, this limited change to the rule espoused by

Hancock and San Pedro has been confirmed by the courts. See In re Arnold, 443

S.W.3d 269, 274-78 (Tex. App.—Corpus Christi 2014, orig. proceeding); City of

Canyon v. Fehr, 121 S.W.3d 899 (Tex. App.—Amarillo 2003, no pet.). As the

Arnold court held,

BRIEF OF APPELLANT CITY OF PLANO PAGE 26

We agree with the Amarillo Court of Appeals [in Fehr] that the amendments to the local government code do not allow the initiative and referenda process to apply to individual zoning amendments; thus, we reject relators' invitation to conclude otherwise. The statute allows the use of the referendum process for voters to repeal a city's zoning regulations in their entirety or to determine whether the city should initially adopt zoning regulations, but does not allow it for the amendment of individual zoning determinations.

In re Arnold, 443 S.W.3d at 277.

3. Initiative and Referendum Do Not Apply to a Long-Range Comprehensive Plan Such as the PTP

a. Since the Inception of Zoning, Texas has Required Zoning be in

Accordance with a Comprehensive Plan Since the adoption of enabling legislation granting zoning authority to

municipalities, which in this State occurred in 1927, zoning regulations have been

required to be made “in accordance with a comprehensive plan[.]” Acts of 1927,

40th Leg., R.S., ch. 283, § 3, Tex. Rev. Civ. Stat. Ann. Arts. 1011a—1011j (current

version at Tex. Local Gov’t Code §211.004(a)); Mayhew v. Town of Sunnyvale, 774

S.W.2d 284, 294 (Tex. App.—Dallas 1989, writ denied); Hancock, 437 S.W.2d at 3.

The Texas Zoning Enabling Act was, as is the case with most states, modeled on the

Standard State Zoning Enabling Act (SZEA) developed by the Commerce

Department. JOHN MIXON ET AL., TEXAS MUNICIPAL ZONING LAW § 1.100 (3d ed.

2015). As a leading commentator on the matter has noted, the requirement that

zoning be in accordance with a comprehensive plan “appear[s] to be a directive to

BRIEF OF APPELLANT CITY OF PLANO PAGE 27

put zoning on a base broader than and beyond itself, and a warning that an ordinance

not ‘in accordance with a comprehensive plan’ is ultra vires the enabling act.”

Charles M. Haar, In Accordance with a Comprehensive Plan, 68 HARV. L. REV.

1154, 1156 (1955). As noted in the vindicated dissenting opinion in City of San

Antonio v. Hunt, “[n]o zoning regulation . . . whatever its relation to the public

health, welfare, morals and safety, is authorized by the enabling act unless it is in

accordance with the comprehensive plan.” 458 S.W.2d 952, 956 (Tex. Civ.

App.—San Antonio 1970) (Cadena, J., dissenting), rev’d 462 S.W.2d 536 (Tex.

1971).

The zoning enabling act contemplates that zoning is the second part of a

two-step process, the first step being planning. MIXON, TEXAS MUNICIPAL ZONING

LAW at § 1.300. While zoning permits a municipality to regulate things such as (1)

the height, number of stories, and size of buildings and other structures; (2) the

percentage of a lot that may be occupied; and (3) the size of yard, courts, and other

open spaces; “[t]he purpose for the requirement of [a comprehensive plan] is to

make sure that city councils have some plan or design in mind when they pass

zoning ordinances.” Bernard v. City of Bedford, 593 S.W.2d 809, 812 (Tex. Civ.

App.—Fort Worth 1980, writ ref’d n.r.e.); see Tex. Local Gov’t Code § 211.003(a).

There is no requirement that a municipality adopt a single comprehensive ordinance

constituting a comprehensive plan. Bernard, 593 S.W.2d at 812. But where a

BRIEF OF APPELLANT CITY OF PLANO PAGE 28

municipality has not officially adopted a comprehensive plan, its zoning ordinances

themselves must be found to be comprehensive, coherent and logical such that the

zoning ordinances themselves constitute such a plan. Mayhew, 774 S.W.2d at 294.

On the other hand, where a municipality has formally adopted a comprehensive plan

the law is settled that the adopted comprehensive plan must, by statutory mandate, serve as the basis for subsequent zoning amendments:

A comprehensive zoning ordinance is law that binds the municipal legislative body itself. The legislative body does not, on each rezoning hearing, redetermine as an original matter, the city’s policy of comprehensive planning. The law demands that the approved zoning plan should be respected . . . . The duty to obey the existing law forbids municipal actions that disregard not only the pre-established zoning ordinance but also the long-rang master plans and maps that have been adopted by ordinance.

Id. at 294-95 (quoting City of Pharr v. Tippitt, 616 S.W.2d 173, 176-77 (Tex. 1981))

(emphasis in Mayhew). After Meyhew, the Legislature enacted chapter 213 of the

Local Government Code to facilitate the formal adoption of municipal

comprehensive plans for long-range development, which may address issues such as

land use, transportation and public facilities, and be used to guide the establishment

of development regulations. Tex. Local Gov’t Code §213.002(b).

BRIEF OF APPELLANT CITY OF PLANO PAGE 29

b. Zoning Ordinances Not in Accordance with a Comprehensive Plan are Invalid

Where a zoning ordinance does not satisfy the requirement that it be in

conformance with a comprehensive plan, either in its entirety or by amendment, it is

invalid, even where no formal comprehensive plan has been adopted. See Hunt v.

City of San Antonio, 462 S.W.2d 536, 540 (Tex. 1971) (reversing court of appeals

and holding that proposed rezoning of lots which would “cause the comprehensive

plan to collapse like the fall of a row of dominoes when the first in the row is

knocked over” was invalid); Coffee City v. Thompson, 535 S.W.2d 758, 767 (Tex.

Civ. App.—Tyler 1976, writ ref’d n.r.e.) (affirming trial court’s holding that entire

zoning ordinance was invalid where, inter alia, town’s property was zoned based

upon the requests of the individual owners, which did not show an attempt to

regulate in accordance with a comprehensive plan). As a result, the failure to

consider the comprehensive plan, even if not formally adopted, when enacting

site-specific zoning or rezoning is considered illegal "spot-zoning." City of Pharr v.

Tippitt, 616 S.W.2d 173, 177 (Tex. 1981).

Moreover, where a comprehensive plan has been formally adopted, a zoning

ordinance passed in violation of this comprehensive plan is necessarily invalid.

Mayhew, 774 S.W.2d at 294-95. In this regard, in Mayhew this Court addressed a

circumstance similar to that in the case at bar, where the municipality had a formally

BRIEF OF APPELLANT CITY OF PLANO PAGE 30

adopted comprehensive plan and the municipality’s zoning ordinance expressly

provided that it was made in accordance with the comprehensive plan. Id. at 294; see

(C.R. 309-11). Where a zoning amendment was passed which was contrary to the

enacted comprehensive plan, this Court held that the zoning ordinance violated the

Texas Zoning Enabling Act.11 Id. at 295.

c. The Adoption or Amendment of Both a Zoning Ordinance and a Comprehensive Plan Requires Compliance with a Mandatory Procedural Process

When adopting the requirements for a formally adopted comprehensive plan,

the Legislature established mandatory procedural requirements just as it had done in

the adoption of a zoning ordinance. Compare Tex. Local Gov’t Code § 213.003 with

Tex. Local Gov’t Code § 211.006. In this regard, just as does § 211.006, § 213.003

provides for certain mandatory procedures required by the State which must be

followed before a comprehensive plan may be adopted or amended by ordinance,

specifically (1) a public hearing, and (2) review by the city’s planning commission.

Tex. Local Gov’t Code § 213.003(a). This mirrors the requirements contained in §

211.006(a), which similarly requires a public hearing prior to a modification of

zoning boundaries.12 Tex. Local Gov’t Code § 211.006(a). Moreover, with regard to

11 The Court subsequently held that plaintiff lacked a cause of action based upon the violation of the zoning enabling act due to the Legislature’s enactment of a subsequent validation statute. Mayhew, 774 S.W.2d at 296. No similar issue is presented here. 12 Obviously, chapter 211 does require the mailing of certain notices to property owners when

BRIEF OF APPELLANT CITY OF PLANO PAGE 31

zoning, Chapter 211 requires review of zoning decisions by a home-rule city’s (such

as the City) zoning commission. Tex. Local Gov’t Code §§ 211.006, 211.007. In

exactly the same way, the adoption or amendment of a comprehensive plan is

required to be reviewed by the City’s planning commission or department.13 Tex.

Local Gov’t Code § 213.003(a)(2). As noted supra, these processes were, in fact,

followed in this case. (C.R. 108 (recitals 5-9), 304-07).

d. Because the City’s Comprehensive Plan is a Part of, and Inextricable from, Zoning, It is Not Subject to Initiative and Referendum

As noted, both the Texas Zoning Enabling Act and the SZEA have, since their

inception, required zoning to be in accordance with a comprehensive plan. See supra

at Part B(3)(a). Whether this comprehensive plan is formally enacted by a

municipality or not, it is a fatal defect for a zoning ordinance to be enacted contrary

to the provisions of such a plan. Hunt, 462 S.W.2d at 540; Mayhew, 774 S.W.2d at

294-95; Thompson, 535 S.W.2d at 767. Accordingly, formally adopted

comprehensive plans, including the City’s, are commonly specifically referenced

and incorporated into the enacted zoning ordinances. (C.R. 309-11); Mayhew, 774

S.W.2d at 294.

considering the rezoning of certain property. See Tex. Local Gov’t Code § 211.006(a). This is entirely reasonable when a single piece of property is being considered for rezoning, and the same concerns about a specific locale are not raised when adopting a city-wide comprehensive plan. 13 The City, like the vast majority of cities in Texas, has established a Planning and Zoning Commission, which addresses both planning and zoning issues.

BRIEF OF APPELLANT CITY OF PLANO PAGE 32

As noted in Appellants’ Plea to the Jurisdiction, in at least thirteen (13)

instances the City’s Zoning Ordinance specifically relies upon information

contained in the City’s comprehensive plan (i.e., the PTP) for zoning determinations

to be made. (C.R. 309-11); see City of Plano Zoning Ordinance, available at

https://www.plano.gov/DocumentCenter/View/12755 (last accessed July 3, 2016).14

Thus, were the Petition sufficient to permit a referendum on the PTP, resulting in its

possible repeal, the City’s Zoning Ordinance would be rendered inoperable, as the

required references to the comprehensive plan would be divested of their legislative

purpose. This would result in a de facto referendum on at least a portion of the City’s

Zoning Ordinance, but, as noted supra, it is undisputed that zoning has been

“withdrawn from the field” of initiative and referendum. See supra at Part B(2).

Moreover, were the PTP repealed, the City would be left with no ability to enact

zoning “in accordance with a comprehensive plan” since the City’s Zoning

Ordinance specifically relies on the existence of an adopted comprehensive plan to

itself be operable. (C.R. 304-07). Put simply, the PTP and the City’s Zoning

Ordinance work in conjunction to establish the City’s zoning, and because zoning

must be in conformance with the comprehensive plan, the two are so intertwined that

the comprehensive plan necessarily falls outside of the field of subject matters which

14 Information from government websites is self-authenticating and the Court may take judicial notice of same. Avery v. LPP Mortgage, Ltd, 01-14-01007-CV, 2015 WL 6550774, at *3 (Tex. App.—Houston [1st Dist.] Oct. 29, 2015, no pet.).

BRIEF OF APPELLANT CITY OF PLANO PAGE 33

may be subjected to a public vote by referendum petition.

Moreover, Texas courts have already held that a comprehensive plan is

inextricable from zoning. In this regard, in the absence of a formally adopted

comprehensive plan, the zoning ordinance itself must satisfy the “in accordance

with” requirement of the zoning enabling act by being comprehensive, coherent and

logical, lest the zoning ordinance be held invalid. Mayhew, 774 S.W.2d at 294; see

Hunt, 462 S.W.2d at 540; Thompson, 535 S.W.2d at 767. In such circumstances,

because the zoning ordinance, which is undisputedly withdrawn from initiative and

referendum power, must itself comprise the comprehensive plan, the comprehensive

plan is likewise necessarily withdrawn from the field of such power. That a

municipality has enacted a formal comprehensive plan pursuant to the authority

granted by the Legislature in Chapter 213 does not alter the underlying nature of the

plan as inextricable from zoning. See Mayhew, 774 S.W.2d at 294-95 (“the law is

settled that an adopted comprehensive plan must, by statutory mandate, serve as the

basis for subsequent zoning amendments”). Indeed, so holding would discourage the

adoption of formal long-range planning documents, which are inarguably beneficial

to both municipalities and private parties throughout the State and would be contrary

to the Legislature’s intent when enacting chapter 213.

Ultimately, it is clear that zoning truly is the second step of the two-step

development process. The existence of a comprehensive plan is literally the other

BRIEF OF APPELLANT CITY OF PLANO PAGE 34

side of the same coin upon which zoning sits because, without the comprehensive

plan, zoning could not exist. Tex. Local Gov’t Code § 211.004. As a result, because

the City’s comprehensive plan is inextricable from its zoning ordinances, just as the

adoption of a zoning ordinance would not be subject to a referendum petition,

neither is the enactment of the City’s comprehensive plan.

e. Alternatively, Even if Technically Separate from Zoning, the Adoption of a Comprehensive Plan Requires Preliminary Actions such as the Holding of Hearings and the Use of Experts and Technical Data, Similar to the Adoption of Zoning, and Therefore has Been “Withdrawn From the Field” of Initiative and Referendum

In the alternative, even in the event this Court were to determine that the

enactment of a comprehensive plan is an entirely distinct legislative act which is

sufficiently unique to not be deemed “zoning” under the long-standing caselaw

which removes zoning from the field of initiative and referendum power, the

rationale used by the courts in holding that zoning may not be reviewed by

referendum applies just as strongly when applied to a comprehensive plan enacted

pursuant to Texas Local Government Code chapter 213.

As noted supra, just as the enactment of a zoning regulation requires

adherence to specific, State-mandated procedures, the enactment or amendment of a

comprehensive plan adopted under chapter 213 of the Local Government Code is

required to be given a public hearing at which the public is given the opportunity to

give testimony and present written evidence, as well as be reviewed by the

BRIEF OF APPELLANT CITY OF PLANO PAGE 35

municipality’s planning commission or department, if one exists. Tex. Local Gov’t

Code §213.003; see supra at Part B(3)(c); (C.R. 108, 304-07) (detailing meetings

and input received by the City during the review process prior to the enactment of

the PTP). Moreover, as is the case with zoning, the creation of a comprehensive plan

pursuant to Chapter 213 requires the collection of large amounts of data sufficient to

develop a plan for land use, transportation or public facilities and the establishment

of development regulations.15 Tex. Local Gov’t Code § 213.002(b). Moreover,

expert input is required in the development of the comprehensive plan, as, by

statutory mandate, it must be reviewed by a municipality’s planning commission or

department. Tex. Local Gov’t Code §213.003(b).

In the case at bar it is clear that the City not only complied with the procedural

requirements of Chapter 213, providing more than ample opportunity for the public

to be heard, but also accumulated and relied upon massive amounts of data,

expertise, and professional advice which resulted in the PTP—a complex and

interconnected development plan far exceeding the seventy-five (75) paragraphs

addressed in the Denman case. In this regard, based upon Appellees’ pleadings,

without the need for additional jurisdictional evidence, it is clear that the City

received over 20,000 comments and ideas from over 4,000 individuals and over 40 15 Indeed, as Texas Courts have held that zoning ordinances require such detailed and complex information which requires the input of experts, the development of a comprehensive plan must necessarily also require same since all zoning ordinances must be enacted in accordance with the comprehensive plan. Tex. Local Gov’t Code § 211.004.

BRIEF OF APPELLANT CITY OF PLANO PAGE 36

organizations through surveys, open houses, public workshops, and public hearings

over a 26-month period during the development of the PTP. (C.R. 108). Moreover,

the City’s Planning and Zoning Commission conducted 22 work sessions with 50

hours of discussion and held three (3) public hearings on the PTP on March 2, 2015,

April 20, 2015, and September 21, 2015, all of which were open to all persons

wishing to comment on the PTP. (C.R. 108). Indeed, a listing of meetings and work

sessions was provided with Appellants’ Plea to the Jurisdiction. (C.R. 304-07).

Further, the City’s Planning and Zoning Commission subsequently recommended

approval of the PTP. (C.R. 108). The City Council itself then held a public hearing

on the PTP on October 12, 2015 open to all persons wishing to comment on it prior

to voting to adopt the Ordinance on that same date. (C.R. 108-09).

As a result, the same rationales which exclude zoning from the field of

referendum power compel a finding that the enactment of a comprehensive plan is

similarly excluded from initiative and referendum. Just as with zoning, the statutory

process which results in the enactment of a comprehensive plan contains statutorily

mandated review and hearing prerequisites which must be satisfied and cannot be

reproduced in the initiative or referendum process. Tex. Local Gov’t Code §

213.003; see Glass, 244 S.W.2d at 653. Moreover, the nature of the types of

information compiled by a municipality enacting a comprehensive plan is of the

same complex and technical nature as that of zoning, and the enactment of a

BRIEF OF APPELLANT CITY OF PLANO PAGE 37

comprehensive plan is excluded from the field of referendum on that ground as well.

As a result, well-settled Texas law compels a finding that a comprehensive plan

enacted pursuant to Local Government Code chapter 213 is not subject to a

referendum petition. Glass, 244 S.W.2d at 653 (subject withdrawn from field where

“there was some preliminary duty such as the holding of hearings, etc., impossible of

performance by the people in an initiative proceeding, by statute or charter made a

prerequisite to the exercise of the legislative power”); In re Arnold, 443 S.W.3d at

277 (even where procedural concerns are not present, necessity of continuity and

expertise in zoning justifies withdrawal of zoning ordinances from field of

referendum); San Pedro, 562 S.W.2d at 262 (complexity and mandatory statutory

prerequisites supported statue’s removal from referendum power); Hancock, 437

S.W.2d at 3-4 (zoning ordinance not subject to referendum where it required

complex study, masses of data, and professional advice, as well as statutory

procedural prerequisites); Denman, 116 S.W.2d at 786-87 (ordinances resting on

expert knowledge, requiring study or ascertainment of masses of facts, and

complexly interconnected are not subject to referendum despite the good intentions

of the public).

BRIEF OF APPELLANT CITY OF PLANO PAGE 38

4. Because a Comprehensive Plan is Not Properly Subjected to Referendum, the City Secretary and City Council are Immune from Appellees’ Mandamus Action Because Appellees Have Failed to Plead that they Violated a Ministerial Duty

As noted supra, in order for Appellees to have stated a mandamus claim

within the waiver of immunity possessed by the City Secretary and the City Council,

all in their official capacities, they must plead, and ultimately prove, that these

Appellants failed to perform a purely ministerial act. Heinrich, 284 S.W.3d at 372;

Machete’s Chop Shop, 483 S.W.3d at 284; Miller, 2013 WL 3724716 at *5.

Appellees have previously argued that a ministerial duty to present the Petition to

the City Council, and for the City Council to take action upon the Petition, existed on

the part of the City Secretary and City Council, respectively, even if a referendum on

the PTP is precluded by state law. (C.R. 334-35). In support of this argument,

Appellees have cited Coalson v. City Council of Victoria, 610 S.W.2d 744 (Tex.

1980). However, Coalson does not apply to the case at bar.

The initial facts in Coalson sound familiar: an initiative petition for a charter

amendment was filed with the city with sufficient valid signatures and the council

voted that it would not place the amendment on the ballot based upon the fact it had

been withdrawn from the initiatory process. Id. at 746. However, the basis upon

which the city alleged it had been withdrawn from the initiatory process was because

the city alleged that the proposed charter amendment violated state law, not because

BRIEF OF APPELLANT CITY OF PLANO PAGE 39

the subject-matter itself had been withdrawn from the initiative and referendum

process. Id. at 746; see Glass, 244 S.W.2d at 648 (for a legal right to mandamus

compelling the calling of an election in the field of initiative and referendum to exist,

“it is not enough that the subject matter of the proposed ordinance be legislative in

character but it must also appear that the subject matter of the ordinance has not been

withdrawn from the field in which initiatory process is operative”). This is similar to

the case In re Roof, where an election was ordered on a charter amendment after the

city secretary had refused to certify an initiative petition based upon her belief that

the proposed amendment “conflicts with the city charter, general state law, and the

Texas Constitution.” In re Roof, 130 S.W.3d 414 (Tex. App.—Houston [14th Dist.]

2004, no pet.).

In arguing this position, Appellees have misunderstood why it would be a

violation of law for a referendum to be called on account of the Petition.

Specifically, it is not an analysis of the underlying legislation that forms the basis of

the Appellants’ actions in not presenting the Petition to City Council and/or placing

the Ordinance on the ballot if not repealed. It is without question that, so long as the

subject matter is one not “withdrawn from the field” of initiative and referendum,

Appellants would be required to take the actions provided for in the Charter even if

the resulting law would, in fact, be contrary to state law. To the contrary, in the case

bar the distinction is that here the election itself, rather than the result thereof, would

BRIEF OF APPELLANT CITY OF PLANO PAGE 40

be a violation of law. See San Pedro, 562 S.W.2d 260. In other words, here an

election for a comprehensive plan, just like an election on a zoning ordinance, would

itself be illegal. Indeed, the court in In re Arnold, a case holding that zoning was not

subject to initiative and referendum, recognized this very point:

Relators further contend that the real parties in interest may not decline to hold an election based on a belief that the proposed legislation would violate the law if adopted, and must instead defer to a court ruling regarding the alleged illegality. See, e.g., Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980); In re Roof, 130 S.W.3d 414, 416-17 (Tex. App.—Houston [14th Dist.] 2004, orig. proceeding). However, this doctrine has no application to this case because it concerns the real parties' refusal to hold an election on grounds that the election itself [on zoning], not the proposed legislation, would violate the law.

443 S.W.3d at 274 n.4 (emphasis added). Moreover, the result of what Plaintiffs

assert should occur is exactly what the San Pedro court held was improper, wherein

an election was held on a zoning issue but was subsequently invalidated by the court

of appeals. San Pedro, 562 S.W.2d 260.

Contrary to Appellees’ prior arguments, in such a circumstance, i.e., where a

referendum petition has been submitted on a matter for which state law precludes a

referendum, courts have approved of a city halting the referendum process and

taking no action upon receipt of the petition. Indeed, cases detailing the propriety of

such actions stretch back as far as the Denman case discussed supra. Denman, 116

S.W.2d at 785-86 (affirming denial of mandamus relief where city council received

BRIEF OF APPELLANT CITY OF PLANO PAGE 41

referendum petition on budget and tax ordinance but refused to move referendum

forward). These same actions have been reaffirmed in recent years. For example, in

In re Ryan, a referendum petition was filed with a city, pursuant to its charter,

seeking to require the city to repeal three annexation ordinances or submit them to a

popular vote. 13-08-00179-CV, 2008 WL 1822442, at *1 (Tex. App.—Corpus

Christi April 18, 2013, original proceeding). “Taking the position that annexation

ordinances were not subject to the referendum provision of the City Charter, the City

Council took no action” on the petition. Id. at *1 (emphasis added). The Ryan

plaintiffs filed suit seeking, as in the case at bar, declaratory relief and a writ of

mandamus holding the city’s charter provisions regarding referendum provided (1)

that the ordinances were suspended and (2) that the city was required to repeal the

ordinances or call a popular election on their validity.16 Id. at *1. Denying the writ of

mandamus, the court of appeals held that it

16 Similar to the language at issue in the case at bar, the charter language at issue in Ryan provided that

Qualified voters of the City of El Campo may require that any ordinance or resolution passed by the City Council be submitted to the voters of the city for approval or disapproval, by submitting a petition for this purpose within thirty (30) days after final passage of said ordinance or resolution, or within thirty (30) days after its publication . . . . Thereupon the City Council shall immediately reconsider such ordinance or resolution and; if it does not entirely repeal the same, shall submit it to popular vote as provided in section 6.07 of this Charter. Pending the holding of such election, such ordinance or resolution shall be suspended from taking effect and shall not later take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof.

In re Ryan, 2008 WL 1822442 at *1.

BRIEF OF APPELLANT CITY OF PLANO PAGE 42

[could] []not conclude that the City or the City Council has failed to perform any duty imposed on them by law. The law is clear that annexation ordinances are not subject to the referendum provisions in city charters. Accordingly, the City and City Council were not required to repeal the annexation ordinances or put them to a referendum.

Id. at *3. Accordingly, where the city had taken no action on a referendum petition

which was not subject to the referendum provision of its charter as a result of state

law providing to the contrary, the court did not order it to do so. Id. at *3.

Similarly, in In re Arnold, petitioners sought mandamus to compel “the

Ingleside City Council, City Manager, and City Secretary to comply with the

referendum process as delineated by the Ingleside City Charger regarding the repeal

of four ordinances granting zoning amendments.” 17 443 S.W.3d at 270.

Specifically, in Arnold the referendum petitions presented to the city secretary were

17 Article VI of the Ingleside City Charter contained the relevant procedures for the initiative and referendum process:

A. Initiative: The qualified voters of the City shall have power to propose ordinances to the City Council, and if the City Council fails to adopt an ordinance so proposed without any change in substance, to adopt or reject it at a city election, provided that such power shall not extend to the budget or capital program or any ordinance relating to appropriation of money, levy of taxes or salaries of City officers or employees. Such initiative power may be used to enact a new ordinance, or to repeal or to amend section of an existing ordinance.

B. Referendum: The qualified voters of the City shall have power to require reconsideration by the City Council of any adopted ordinance and, if the City Council fails to repeal an ordinance so reconsidered, to approve or reject it at a City election, provided that such power shall not extend to the budget or capital program or any emergency ordinance relating to appropriation of money or levy of taxes.

In re Arnold, 443 S.W.3d at 272.

BRIEF OF APPELLANT CITY OF PLANO PAGE 43

related to two zoning amendments. Id. at 272. Thereafter, the city council

determined that the referendum process would be halted and the city secretary sent

letters to the petition organizers communicating same. Id. at 272. As a result, at the

time suit was filed the city had not instituted a referendum process for any of the

submitted petitions. Id. at 272. After examining the case, the court denied plaintiffs’

request for mandamus relief. Id. at 272, 278. Specifically, the court held that the writ

should be denied due to the fact that the “relators have not established that

respondents have a ministerial duty under the [chart]er and existing law to apply the

initiative and referendum process” to the ordinances at issue. Id. at 278. Therefore,

as in Ryan, where the submitted petition was outside the scope of municipal

referendum power, the court found that no ministerial duty for either the city

secretary or the city council existed to consider same. Id. at 278.

The same result applies herein. Because a comprehensive plan has been

withdrawn from the field of initiative and referendum, the City Secretary and City

Council acted appropriately by taking no action on the Petition. As a result, because

the Plaintiffs have failed to plead a viable claim that the City Secretary or City

Council failed to perform a required ministerial act, they retain their immunity from

suit, this Court lacks subject matter jurisdiction over the Plaintiffs’ claims against

them, and the trial court erred by denying their Plea to the Jurisdiction. Tex. Music

Library & Research Ctr., 2014 WL 3802992 at *16.

BRIEF OF APPELLANT CITY OF PLANO PAGE 44

5. No Pleading Amendment Will Cure Appellees’ Jurisdictional Defects

It is well settled in this state that a pleader must be given an opportunity to

amend in response to a plea to the jurisdiction only if it is possible to cure the

pleading defect. Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.

2007). In this case, it is clear that Appellees cannot do so. Specifically, as detailed

above, Appellees have not simply failed to allege facts which would bring their

claims within a waiver of the immunity possessed by the City Secretary and the City

Council. To the contrary, the fundamental law upon which Appellees rest their

claims dictates that the City Secretary and City Council did not fail to perform the

ministerial action Appellees allege exists. “Merely pleading more facts in support of

[such a claim] will not overcome [these Appellants’] immunity from suit.” Id. As a

result, because Appellees will not be able to state a viable mandamus claim against

the City Secretary or the City Council, no opportunity to amend need be provided.

Id. (citing Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228

(Tex.2004)).

BRIEF OF APPELLANT CITY OF PLANO PAGE 45

Issue Two: Whether the Trial Court erred by denying the City’s Plea to the Jurisdiction as to Appellees’ claims which sought declaratory judgment against it?

C. THE TRIAL COURT ERRED BY DENYING THE CITY’S PLEA TO

THE JURISIDCTION WITH REGARD TO THE APPELLEES’ DECLARATORY JUDGMENT CLAIMS ASSERTED AGAINST IT

1. The City is Immune From Plaintiffs’ Claims for Declaratory Relief,

Which Seek to Construe or Interpret a Statute

The trial court erred by denying the City’s Plea to the Jurisdiction with

regarding the claims for declaratory relief Appellees have asserted against it. To wit,

as noted supra, Appellees seek declarations that (1) unless and until a majority of the

voters approve the Ordinance in a referendum, the Ordinance has been suspended

from taking effect and is invalid; (2) unless and until a majority of the voters approve

the Ordinance in a referendum, the PTP adopted by the Ordinance is not the City’s

long-range comprehensive plan; and (3) unless and until a majority of the voters

approve the Ordinance in a referendum, the City’s prior comprehensive plan,

enacted in 1986, is its current long-range comprehensive plan. (C.R. 105). However,

contrary to Appellees’ assertions, the City retains its immunity from suit with regard

to such claims.

It is undisputed that the Legislature has expressly waived immunity for

lawsuits challenging the validity of a municipal ordinance. As this Court has noted,

this waiver of immunity is recognized because Tex. Civ. Prac. & Rem. Code §

BRIEF OF APPELLANT CITY OF PLANO PAGE 46

37.006(b) expressly requires joinder of a municipality in actions challenging the

validity of a municipal ordinance. City of Dallas v. Texas Ezpawn, L.P.,

05-12-01269-CV, 2013 WL 1320513, at *2 (Tex. App.—Dallas Apr. 1, 2013, no

pet.); see Heinrich, 284 S.W.3d at 373 n.6. However, as this Court has held, “the

legislature through the UDJA has not clearly and unambiguously waived

governmental immunity for actions in which ‘the plaintiff seeks a declaration of his

or her rights under a statute or other law.’” Texas Ezpawn, 2013 WL 1320513 at *2

(quoting Texas Dept. of Transportation v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011)).

While Appellees’ live pleading cites § 37.004 as authorizing their declaratory

judgment claims against the City, this Court has repeatedly held that the limit to the

waiver of immunity provided for in § 37.006(b) is not affected by §37.004, and the

only waiver of a city’s immunity provided for in the Declaratory Judgments Act is

when a plaintiff challenges the validity of an ordinance. (C.R. 101 (¶ 38)); Tex. Civil

Prac. & Rem Code §37.004; City of McKinney v. Hank’s Rest. Group, L.P., 412

S.W.3d 102, 112 (Tex. App.—Dallas 2013, no pet.); Texas Ezpawn, 2013 WL

1320513 at **2-3. Put plainly, “the Declaratory Judgments Act waives

governmental immunity against claims that a statute or ordinance is invalid. The Act

does not waive immunity against claims seeking a declaration of the claimant’s

statutory rights or an interpretation of an ordinance.” Hank’s Rest. Group, 412

S.W.3d at 112.

BRIEF OF APPELLANT CITY OF PLANO PAGE 47

Appellees, in their live pleading, pay lip-service to the limited waiver of §

37.006(b), asserting, in a conclusory fashion, that “[t]he suit involves the validity of

Ordinance No. 2015-10-19.” (C.R. 96 (¶ 19)). However, Appellees have judicially

admitted that, at least until their Original Petition was filed, the Ordinance was

validly the law in the City of Plano. (C.R. 337) (“Plaintiff [sic] are alleging that the

Ordinance is already suspended and invalid and has been since November 10, 2015

when the Petition was submitted.) (underline in original, italics added).

Additionally, none of Appellees’ remaining allegations, and none of their requested

grounds for declaratory relief, allege, assert or imply that the Ordinance is in any

way invalid or should be invalidated. See generally (C.R. 92-105). Indeed,

Appellees have previously asserted that “the Ordinance is invalid because the

[City’s] Charter provides that the Ordinance is suspended and invalid until approved

by the voters[.]” See, e.g., (C.R. 322). However, the Charter simply does not provide

same and, to the contrary, states the opposite by providing that when an ordinance is

properly subject to referendum, that “[p]ending the holding of such election such

ordinance or resolution shall be suspended from taking effect[.]” (C.R. 98-99)

(reproducing City of Plano Charter Section 7.03) (emphasis added). This is not

language which in any way implies invalidity, but rather language which recognizes

that a valid ordinance may be suspended when a proper referendum petition is

BRIEF OF APPELLANT CITY OF PLANO PAGE 48

presented and the ordinance not “repeal[ed]” by the City Council. Id.

As is plain by their very terms, Appellees’ claims for declaratory relief against

the City are not claims that the Ordinance is invalid but, rather, are claims seeking to

require the Court to interpret the City’s charter and ordinances, from which no

waiver of the City’s immunity from suit exists. Hank’s Restaurant Group, 412

S.W.3d at 112; Texas Ezpawn, 2013 WL 1320513 at *3. As a result, the trial court

erred when it failed to grant the City’s Plea to the Jurisdiction with regard to

Appellees’ declaratory judgment claims asserted against it, the trial court’s ruling

should be reversed, and Appellees’ claims against the City should be dismissed for

lack of subject matter jurisdiction.

2. Alternatively, Appellees Lack Standing to Seek Declaratory Relief From the City

In the alternative, even were this Court to find that Appellees’ suit sought to

contest the validity of the Ordinance, the trial court nevertheless erred by denying

the City’s Plea to the Jurisdiction as to Appellees’ declaratory judgment claims due

to the fact that Appellees lack standing to seek the declaratory relief pleaded for. In

this regard, standing is a component of subject matter jurisdiction. Tex. Ass’n of Bus.

v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A pleader must allege

facts that affirmatively demonstrate the plaintiff’s standing and the court’s

jurisdiction to hear the case. Id. “[I]n order to have standing for a declaratory

BRIEF OF APPELLANT CITY OF PLANO PAGE 49

judgment claim, a member of the public must allege ‘a particularized injury distinct

from that suffered by the general public.’” Kessling v. Friendswood Indep. Sch.

Dist., 302 S.W.3d 373, 386 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)

(quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555-56 (Tex. 2000)).

“[S]tanding requirements serve to maintain the proper separation of governmental

powers both by preventing courts from issuing advisory opinions and, with regard to

challenges to governmental action in particular, by preventing judicial incursions

into abstract or generalized public policy disputes that are properly resolved in the

other branches.” Alejos v. State, 433 S.W.3d 112, 122 (Tex. App.—Austin 2014, no

pet.); see also Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 592 (Tex. 2013)

(Johnson, J., dissenting) (“When a litigant claims a hypothetical or possible

impairment of rights because of a rule or its possible application—as opposed to

claiming an existing or reasonably probable application that will cause

particularized, specific injury—the claim calls for an advisory opinion.”).

Appellees lack standing to assert their declaratory judgment claims against

the City due to the fact that with regard to those claims, in contrast to claims relating

to the submission of the Petition and its result, they have failed to allege that they

possess any particularized injury separate and apart from the general public which

would be redressed by the declaratory relief sought. In this regard, the relief sought

by Appellees is that the Court declare that the Ordinance is suspended and another

BRIEF OF APPELLANT CITY OF PLANO PAGE 50

ordinance resurrected.18 See (C.R. 102-03 (¶ 45)). Nothing in the pleaded facts

alleges that Appellees have suffered, or would suffer, any particular injury which

warrants the grant of the requested declaratory relief. See generally (C.R. 92-105).

As a result, subject matter jurisdiction over such claims is lacking, the trial court

erred by refusing to dismiss Appellees’ declaratory judgment claims against the

City, and Appellees’ claims should be dismissed. See Tex. Air Control Bd., 852

S.W.2d at 446 (pleader must allege facts demonstrating court’s jurisdiction).

3. No Pleading Amendment Will Cure Appellees’ Jurisdictional Defects

As with Appellees’ mandamus claims against the City Secretary and City

Council, no pleading amendment could possibly cure Appellees’ declaratory

judgment claims against the City. Koseoglu, 233 S.W.3d at 840. Appellees have

made clear that they concede that the Ordinance was valid, at least for a period of

time, and that they seek only an interpretation of what law is in place in the event that

a referendum election is ultimately ordered. Appellees cannot amend to somehow

recast the same claims as falling within a waiver of the City’s immunity from suit.

As a result, because Appellees will not be able to state a viable declaratory judgment

claim against the City, no opportunity to amend need be provided. Id. (citing

18 Plaintiffs fail to allege any basis upon which the “Amended 1986 Comprehensive Plan” could be retroactively readopted by the suspension of the Ordinance. In this regard, there is no dispute that the Ordinance was, in fact, adopted by the City’s City Council. The City’s Code or Ordinances specifically provides that “[t]he repeal of an ordinance shall not revive any ordinance in force before or at the time the ordinance repealed took effect.” City of Plano Code of Ordinances §1-10(a) available at http://www.municode.com/library/tx/plano/codes/code_of_ordinances.

BRIEF OF APPELLANT CITY OF PLANO PAGE 51

Miranda, 133 S.W.3d at 228).

4. Alternatively, Appellees’ Declaratory Judgment Claims Against the City Necessarily Fail Because the PTP Is Not Subject to Referendum Petition

Alternatively, it should be noted that Appellees’ declaratory judgment claims

against the City presuppose that the Ordinance is subject to being attacked via the

filing of a referendum petition, i.e., the Petition. See (C.R. 101-03). However, as

noted supra, this is not the case, and the Petition submitted by Appellees and others

cannot serve to seek a referendum on the PTP. See supra at Part B. As a result,

because Appellees cannot challenge the enactment of the Ordinance via their

submitted Petition, their declaratory judgment claims fail to state a claim within the

City’s limited waiver of immunity and, as a result, the trial court erred by not

dismissing these claims for lack of subject matter jurisdiction.

Issue Three: Whether the trial court erred by denying the City and City Council’s Plea to the Jurisdiction due to the fact that Appellees’ only ripe claim is their mandamus claim against the City Secretary?

D. THE TRIAL COURT ERRED BY DENYING THE CITY AND THE

CITY COUNCIL’S PLEA TO THE JURISDICTION IN THAT THE ONLY RIPE CLAIM PLEADED BY APPELLANTS IS THEIR MANDAMUS CLAIM AGAINST THE CITY SECRETARY

In addition to the foregoing, the trial court further erred by denying the City

and City Council’s Plea to the Jurisdiction due to the fact that the only ripe claim

BRIEF OF APPELLANT CITY OF PLANO PAGE 52

pleaded by Appellees is their claim for mandamus relief against the City Secretary.

Ripeness is a threshold issue that implicates subject-matter jurisdiction. Robinson v.

Parker, 353 S.W.3d 753, 755 (Tex. 2011). While standing focuses on who may

bring an action, ripeness examines when an action may be brought. Patterson v.

Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998).

The ripeness inquiry focuses on whether the case involves uncertain or contingent

future events that may not occur as anticipated, or may not occur at all. Robinson,

353 S.W.3d at 756; Lazarides v. Farris, 367 S.W.3d 788, 801-02 (Tex.

App.—Houston [14th Dist.] 2012, no pet.). “Although a claim is not required to be

ripe at the time of filing, if a party cannot demonstrate a reasonable likelihood that

the claim will soon ripen, the case must be dismissed.” Id. "[T]he essence of the

ripeness doctrine is to avoid premature adjudication . . . [and] to hold otherwise

would be the essence of an advisory opinion, advising what the law would be on a

hypothetical set of facts." Robinson, 353 S.W.3d at 756. In this regard, “[a]

declaratory judgment action does not vest a court with the power to pass upon

hypothetical or contingent situations, or to determine questions not then essential to

the decision of an actual controversy, although such questions may in the future

require adjudication.” Harris County Mun. Util. Dist. No. 156 v. United Somerset

Corp., 274 S.W.3d 133, 139-40 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

BRIEF OF APPELLANT CITY OF PLANO PAGE 53

Appellees have specifically pleaded that “a petition addressed, prepared,

signed, and verified as required by the Charter and containing over 4,000 signatures

was submitted to the City Secretary” and that the City Secretary “was obligated to

immediately present the Petition to the City Council[,]” which she did not do, nor did

she even count the signatures thereon. (C.R. 99 (¶¶ 31-32)) (emphasis in original).

Appellees further concede that the City’s Charter provides that it is only after the

“person performing the duties of city secretary” presents such a petition to the City

Council that the City Council “shall immediately reconsider such ordinance or

resolution” and either repeal same or submit it to a popular vote. (C.R. 98-99 (¶ 29))

(quoting City of Plano City Charter § 7.03), (C.R. 99 (¶ 30)) (“The City Council then

has an obligation . . . .”) (emphasis added). While Appellees’ claim that that City

Secretary has not presented the Petition to the City’s City Council is ripe, the

balance of their mandamus claims which seek to compel the allegedly ministerial

duties of the City Council are based solely upon contingent or hypothetical facts.

Robinson, 353 S.W.3d at 756.

Put simply, as no duty of the City Council has ever been triggered by the

presentment of a Petition, Appellees’ claims seeking to compel action by the City

Council are not ripe because those duties may never arise, and the City Council’s

alleged failure to consider or present the Ordinance to a popular vote, if not repealed,

is entirely hypothetical. (C.R. 102-03 (¶ 45)); Robinson, 353 S.W.3d at 756; United

BRIEF OF APPELLANT CITY OF PLANO PAGE 54

Somerset Corp., 274 S.W.3d at 139-40. First, Appellees presume that sufficient

valid signatures have been collected by Plaintiffs prior to their being counted by the

City Secretary. (C.R. 99 (¶¶ 31-32)). Next, even more obviously, Appellees’

mandamus claims against the City Council are not ripe as each and every one of

these (identical) claims is contingent upon the City Council making a legislative

decision not to “entirely repeal” the Ordinance and instead submitting same to the

voters. (C.R. 98-99 (¶ 29)) (reproducing Charter § 7.03). Appellees have pleaded no

facts which in any way establish that there is a reasonable likelihood as to what the

outcome of presentment of the Petition to the City Council would be. See generally

(C.R. 92-105). Indeed, Appellees have simply asserted that under the Charter, the

City Council has duties which may, but have not yet, arisen, and, as to the City, they

ask this Court to issue a declaratory judgment interpreting the legal result of these

supposed actions which the City Council may, but is not obligated to, take. (C.R.

104-05). Such claims for relief are blatantly premised upon contingent and

hypothetical facts and, as a result, Appellees’ claims are clearly not yet ripe for

presentment. Robinson, 353 S.W.3d at 756.

Because, outside of Appellees’ claim seeking to compel presentment of the

Petition by the City Secretary, each and every one of Appellees’ claims is contingent

and based upon hypothetical events which may or may not come to pass, each of

their remaining claims is unripe, subject matter jurisdiction is lacking, and the trial

BRIEF OF APPELLANT CITY OF PLANO PAGE 55

court erred by failing to dismiss those claims. Id. at 755.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellants City of Plano,

Texas; Lisa Henderson, in her official capacity as City Secretary; Harry LaRosiliere,

in his official capacity as Mayor; Angela Miner, in her official capacity as member

of the City Council; Ben Harris, in his official capacity as member of the City

Council; Rick Grady, in his official capacity as member of the City Council; Lissa

Smith, in her official capacity as member of the City Council; Ron Kelley, in his

official capacity as member of the City Council; Tom Harrison, in his official

capacity as member of the City Council; and David Downs, in his official capacity

as member of the City Council pray that this Honorable Court reverse the trial

court’s order denying their Plea to the Jurisdiction that was signed on May 16, 2016;

that it grant their Plea to the Jurisdiction; and that it dismiss Appellees’ claims

against them for lack of subject matter jurisdiction.

BRIEF OF APPELLANT CITY OF PLANO PAGE 56

Respectfully submitted,

By: ANDY TAYLOR

State Bar No. 19727600 ANDY TAYLOR & ASSOCIATES, P.C. 2668 Highway 36S, #288 Brenham, Texas 77833 713-222-1817 (telephone) 713-222-1855 (facsimile) ataylor@andytaylorlaw.com /s/ Robert J. Davis

ROBERT J. DAVIS State Bar No. 05543500

MATTHEWS, SHIELS, KNOTT, EDEN, DAVIS & BEANLAND, L.L.P. 8131 LBJ Freeway, Suite 700 Dallas, Texas 75251 972/234-3400 (office) 972/234-1750 (telecopier) bdavis@mssattorneys.com /s/ Timothy A. Dunn

TIMOTHY A. DUNN Assistant City Attorney State Bar No. 24050542 CITY OF PLANO, TEXAS P.O. Box 860358 Plano, Texas 75086-0358 Telephone: (972) 941-7125 Facsimile: (972) 424-0099 Email: timothyd@plano.gov

ATTORNEYS FOR APPELLANTS

BRIEF OF APPELLANT CITY OF PLANO PAGE 57

CERTIFICATE OF SERVICE This is to certify that, pursuant to TEX. R. APP. P. 9.5, on this the 5th day of July, 2016, a true and correct copy of the above and foregoing instrument was served upon Jack Ternan, Ternan Law Firm, PLLC, 1400 Preston Road, Suite 400, Plano, Texas 75093, counsel for Appellees, by electronic service.

/s/ Timothy A. Dunn TIMOTHY A. DUNN

BRIEF OF APPELLANT CITY OF PLANO PAGE 58

CERTIFICATE OF COMPLIANCE Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned certifies this brief complies with the type-volume limitations of Tex. R. App. P.9(i)(2). 1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN Tex. R. App. P. 9(i),

THE BRIEF CONTAINS:

A. (Entire Brief) 13,039 words, OR

B. N/A lines of text in monospaced typefaces 2. THE BRIEF HAS BEEN PREPARED:

A. in proportionally spaced typeface using: Software Name and Version: Microsoft Word, Version 14.0.7166.5000 in Times New Roman, 14 Points, OR

B. in monospaced (nonproportionally spaced) typeface using: Typeface name and number of characters per inch: N/A

/s/ Timothy A. Dunn TIMOTHY A. DUNN

APPENDIX TO BRIEF OF APPELLANTS PAGE 1

No. 05-16-00573-CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS __________________________________________________________________ CITY OF PLANO, TEXAS; LISA HENDERSON, IN HER OFFICIAL CAPACITY AS CITY SECRETARY; HARRY LAROSILIERE, IN HIS OFFICIAL CAPACITY AS MAYOR; ANGELA MINER, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; BEN HARRIS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RICK GRADY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; LISSA SMITH, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RON KELLEY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; TOM HARRISON, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; AND DAVID DOWNS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL

Appellants vs. ELIZABETH CARRUTH; MATTHEW TIETZ; JANIS NASSERI; JUDITH

KENDLER AND STEPHEN PALMA

Appellees __________________________________________________________________

APPENDIX TO BRIEF OF APPELLANTS __________________________________________________________________ TO THE HONORABLE FIFTH COURT OF APPEALS:

APPENDIX TO BRIEF OF APPELLANTS PAGE 2

COME NOW the City of Plano, Texas (“City”); Lisa Henderson, in her

official capacity as City Secretary (the “City Secretary”); Harry LaRosiliere, in his

official capacity as Mayor; Angela Miner, in her official capacity as member of the

City Council; Ben Harris, in his official capacity as member of the City Council;

Rick Grady, in his official capacity as member of the City Council; Lissa Smith, in

her official capacity as member of the City Council; Ron Kelley, in his official

capacity as member of the City Council; Tom Harrison, in his official capacity as

member of the City Council; and David Downs, in his official capacity as member of

the City Council (all members collectively the “City Council”) (all Appellants

collectively “Appellants”), the Appellants herein and pursuant to Tex. R. App. P.

38.1(k) submits this their Appendix to Brief of Appellants:

Appendix Exhibit Description 1 Order Denying Appellants’ Plea to the

Jurisdiction 2 Texas Local Government Code chapter 211 3 Texas Local Government Code chapter 213

EXHIBIT 1

EXHIBIT 2

EXHIBIT 3