14th Court of Appeals holds taxpayers have standing to challenge ballot propositions and bring ultra vires claims

Slvester Turner,  in his official capacity as mayor of the City of Houston, and the City of Houston v. Carroll G. Robinson, Bruce R. Hotze and Jefferey N. Daily, No.14-16-00393-CV ( Houston [ 14th Dist.] August 17, 2017)

The Fourteenth Court of Appeals in Houston determined the Plaintiffs had taxpayer standing to challenge two propositions filed in the 2004 elections and for ultra vires claims against the Mayor’s office.

This opinion is one in a long series of opinions and cases involving the same or similar parties. Plaintiffs sued the City of Houston and the Mayor, in his official capacity, for declaratory and injunctive relief (including ultra vires claims) involving Prop 1 (limiting annual increases in property taxes and utility rates) and Prop 1 (amending the City Charter and requiring voter approval for increase which go beyond inflation and population rates).  In the 2004 election, both propositions passed. After the election, for two independent reasons, the City determined Prop. 1 is legally binding and Prop. 2 would not be enforced. Prop. 1 had a supremecy clause over any other propositions if it received more popular votes.  Further, the Charter stated any proposition which receives the higher votes prevails. Various suits followed resulting in several appellate opinions already. In this matter, the Plaintiffs filed actions regarding the validity of Prop. 2 and the City’s future compliance with both Prop. 1 and Prop. 2.   The City filed a plea to the jurisdiction which was denied. The City appealed.

Standing is a constitutional prerequisite to maintaining suit.  Taxpayer standing requires (1) that the plaintiff is a taxpayer; and (2) that public funds are being expended on the allegedly illegal activity. Plaintiffs did not sue to recoup funds but to prevent future expenditures on alleged unauthorized activities. As a result, they have taxpayer standing. The Plaintiffs do not allege the Mayor failed to perform a ministerial act, but instead assert he acted without legal authority. Such is a proper ultra vires claim. And while the Plaintiffs focus on the legal authority of the propositions, their pleadings also seek a declaration as to their validity. As a result, they are proper for declaratory judgment.

Justice Busby’s concurrence focused on  “a clash among fundamental principles of government.” Specifically, he notes immunity/standing vs requiring officials to follow the rule of law.  He writes separately to “to explain how the structural principles of government at stake” intertwine because immunity and standing are notoriously complex.  He does a good job of explaining the competing interests and ultimately agrees that the taxpayers have standing in order to require a governmental official follow the law.

If you would like to read this opinion click here. The panel includes Justice Busby, Justice Donovan, and Justice Brown. Justice Donovan delivered the opinion of the court. To see Justice Busby’s concurring opinion click here. Attorney listed for the City is Ms. Kathleen Hopkins Alsina. Attorneys listed for Ms. Robinson, Mr. Hotze and Mr. Daily are Andy Taylor and Amanda Eileen Staine Peterson.