Opinion issued March 10, 2016

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 15
- 00687
- CV

——————————— ANNISE PARKER, MAYOR , ANNA RUSSELL, CITY SECRETARY, AND

CITY OF HOUSTON , Appellant s

V. DAVID B. WILSON , Appellee

On Appeal from the 270th District Court

Harris County, Texas Trial Court Ca se No. 2015
- 39706



### MEMORANDUM OPINION Appellants , Mayor Annise Parker, City Secretary Anna Russell, and the City of Houston (collectively “the City”) f iled this interlocutory appeal of the trial
court’s July 28, 2015 order granting appel lee David B. Wilson’s petition for writ of2

mandamus. In its first issue, t he City contends that Wilson’s underlying
mandamus suit and the July 28 order are m oot and the case should be dismissed

. In its second, third, and fourth issues, the City challenges the trial court’s July 28 order on the grounds that (1) Wilson’s petition was an untimely referendum, not a charter amendment, and therefore the City Secretary had no d uty to count signatures or certify the number to the City Council; (2) the trial court decided the case on the merits without giving the City proper notice of trial; and (3) the order granted Wilson injunctive relief without requiring him to meet the requi rements for a temporary injunction. Because we conclude that Wilson’s mandamus suit and the July 28 order are moot, we vacate the trial court’s judgment and dismiss the

case. Background In 2015, Wilson conducted a petition drive with the stated purpose o f
amend ing Article II, Section 22 of the Charter of the City of Houston 1 to add the following language:

1 Article II, s ection 22 of the City’s Charter provides :

Except as required by State o r Federal law, th e City of Houston shall not provide employment benefits , including health care, to persons other than employees, their legal spouses and dependent children; nor shall the City provide any privilege in promotion, hiring, or contracting to a person or group on the basis of sexual preference, either by a vote of the city council or an executive order by the3

Except as required by State or Federal law, the City of Houston shall only define gender identity as an individual’s innate identification, as either a male or female which is assigned at birth. Perceived or expressed gender identification is not allowed in d efining gender identity. Further, the City of Houston shall require entities doing business with the city to abide by the same definition of gender identification. Wilson filed his petition with the City Secretary on July 9 , 2015. 2
On J uly 10, 2015, Wilson filed his o riginal p etition for writ of m andamus against appellants. The mandamus petition alleged that the City Secretary ha d failed to perform her mini s terial duty under the City Charter to count the number of signatures on the petition and certi fy the petition to the City Coun cil

. Noting that “the deadline for calling an election in November of 2015 is on or about August 19, 2015,” Wilson alleged in his petition that, if the requested injunctive relief was not granted, it would be “too late for a timely election to be called,” resulting in irreparable harm. W ilson set the mandamus petition for hearing on July 13, 2015, three days after the p etition had been filed.

Mayor. Further, the City of Houston shall not require entities d oing business with the City to have any of the above benefits or policies

. Charter of the City of Houston, art. II, § 22.

2 From the outset , the parties have disputed the nature of Wilson’s petition. The City claims that Wilson’s petition is not a char ter amendment but is a r eferendum on Ordinance No. 2014

- 530, known as the Houston Equal Rights Ordinance , which voters rejected on November 3, 2015

. Wilson, however, maintains that his petition is not a referendum but instead a proposed charter amendment that should be placed o n the November 2015 ballot

. Given our disposition of this case, we do not reach this issue.4

At the hearing, the trial court sustained the City’s objection to proceeding with insufficient notice. Wilson thereafter amended his mandamus petition and reset the hearing

. In his amended petition, Wi lson alleged that if the City Secretary did not count the signatures and certify the petition, “the Charter Ame ndment cannot be pl aced o n the ballot in November 2015 , ” result ing in irreparable harm. The trial court held a hearing on Wilson’s first amended petition on July 24,
2015. At the conclusion of the hearing, Wilson’s counsel stated to the court, I do need to mention the urgency because if we don’t meet certain deadlines, it

— we won’t be able to get the issue on the ballot. Let’s say hypothetically, if we would win, we need

— I think you would have to rule on this by August 8th as to their duty to count. On July 28, 2015, the trial court granted Wilson’s mandamus petition and ordered

t he City Secretary to count and cert i fy to the City Council the number of signatures contained in Wilson’s petition within thirty days from the date of filing of the petition, i.e., July 9, 2015. 3

3 On the same day that the trial court granted Wilson’s petition, the Texas Supreme Court dec ided In re Jared Woodfill , 470 S.W.3d 473 (Tex. 2015), ordering the City Council to reconsider the equal rights ordinance, and if it did not repeal the ordinance, to submit it to the voters in the next City election. Id. at 481. The C ouncil did not repeal the ordinance but inste ad voted to put it on the November 2015 ballot.5

On August 7, 2015, the City filed a notice of interlocutory appeal of the July 28, 2015 order

. 4 In response, Wilson filed an emergency motion to dismiss and, alternatively, to refer enforcement of the mandamus to the trial court. By order dated August 19, 2015, this Court denied Wilson ’s motion and directed t he City to file a written response with in ten days showing the basis for the Court’s jurisdiction. The City timely filed its response, arguing that the trial court’s July 28 order was a mandatory temporary injunction and, therefore, appealable as an interlocutory order under Texas Civil Practi ce and Remedies Code section 51.014(a)(4). See T EX
. C IV
. P RAC

. & R EM
. C ODE A NN
. § 51.014(a)(4) (West Supp.
2015 ). In his reply, W ilson argued that this Court lacked appellate jurisdiction
because the July 28 order was an order granting a writ of mandamus , n ot a temporary injunction

. While the appeal was pending in this Court, Wilson filed an original emergency petition for writ of mandamus in the Texas Supreme Court o n August 24, 2015. In his petition, Wilson argued t h at this Court’s order granting the City ten days to show the basis for the Court’s jurisdiction would “likely be too late” for his proposed amendment to be plac ed on the November 2015 ballot, and requested
that the Supreme Court issue a writ of mandamus ei ther order ing this Court to

4 Prior to filing its notice, t he City had unsuccessfully sought clarification of the trial court’s order and an extension of time to c o m p ly with the order

.6

dismiss the City’s interlocutory appeal for want of jurisdiction o r , alternatively, directing the City Secretary to immediately count and certify to the City Council the number of valid signatures contained in his petition. On August 28, 2015, the
C ourt denied Wilson’s petition

. Mootness In its first issue, t he City contends that the deadline for issues to be placed
on the November 2015 ballot and the November 2015 election have passed and , th erefore , Wilson’s underlying mandamus s uit and the July 28 order are now moot. A. Standard of Review and Applicable Law Whether a court has subject matter jurisdiction is a legal question that is
reviewed de novo. Meeker v. Tarrant Cnty. Coll. Dist. , 317 S.W.3d 754, 759 (Tex. App.

— For t Worth 2010, pet. denied); Trulock v. City of Duncanville , 277 S.W.3d 920, 923 (Tex. App.

— Dallas 2009 , no pet. )

. The mootness doctrine implicates subject matter jurisdiction. See Trulock , 2 77 S.W.3d at 923; City of Shoreacres v.
Tex. Comm ’ n of Envtl. Quality , 166 S.W.3d 825, 830 (Tex. App.

— Austin 2005, no pet.). An appellate court is prohibited from deciding a moot controversy or rendering an advisory opinion. See Nat ’ l Collegiate Athletic Ass ’ n v. Jones , 1 S.W.3d 83, 86 (Tex. 1999); City of Farmers Branch v. Ramos , 235 S.W.3d 462,
469 (Tex. App.

— Dallas 2007, no pet.) (noting court may only decide issues7

presenting “a live controversy at the time of the decision”). If a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome at any stage,
the case becomes moot. Allstate Ins. Co. v. Hallman , 159 S.W.3d 640, 642 (Tex. 2005); Williams v. Lara , 52 S.W.3d 171, 184 (Tex. 2001) (noting “a controversy must exist between the parties at every stage of the legal proceedings, including the appeal”). “[C]ourts have an obligation to take into account intervening events that may render a lawsuit moot.” See Heckman v. Williamson Cnty. , 369 S.W.3d 137,
166

– 67 (Tex. 2012). If a proceeding becomes moot, the court must dismiss the proceeding for want of jurisdiction. See id.
B. Analysis
When t he trial court entered its July 28, 2015 order granting Wilson’s petition for writ of mandamus, Wilson’s first amended petition was the live pleading on file. In his amended petition, Wilson sought “to exercise his statu tory right to obtain a vote by the citizens of the city of Ho uston t o decide the m atter in November 2015 election ballot.” Wilson further alleged If the City Secretary does not count and certify the petitions, the Charter Amendment cannot be placed on the ballot in November 2015. Further, on reasonable belief, Defendants intend to unre asonably thwart Wilson’s efforts to obtain a vote on the matter by delaying the matter in court until the issue becomes moot ( e mphasis added)

.8

At the July 24 hearing , Wilson’s counsel emphasized the urgency of obtaining a ruling and advised the court that if Wilson did not meet certain deadlines he would be unable to have the issue placed on the November 2015 ballot.
In his second amended petition 5 ( and current live pleading ) filed after the
trial court issued its order , Wilson al lege d : Mayor Annise Parker and Houston City Council members [] have a ministerial duty to order Wilson’s proposed Charter A mendment be published in the newspaper at least 14 days prior to the subjection election, and run two consecutive weeks, and then order Wilson’s proposed amend ment to be printed on the election ballots for the November 2015 election

.

. . . . Wilson hereby demands that each City Council member perform his/her ministerial duties and, order, or cause Wilson’s Charter Amendment be placed in the official city newsp aper at least two consecutive weeks prior to the election and cause Wilson’s proposed Charter Amendment to appear on the election ballot.

. . . . Wilson seeks to exercise his statu t ory righ t to obtain a vote by the citizens of the city of Houston to dec ide the matter in Nov e mber 2015 election ballot. . . . Mayor Parker, Secretary Anna Russell and City Council owe a duty to Wilson to place the proposed Charter Amendment on the election ballot for a vote.

. . . . Wilson, and the people of Houston will suffer irreparable harm if the proposed Charter Amendment is not put on the election ballot.

5 In addition to the Mayor and City Secretary, Wilson’s second amended petition named City Council members as defendants in his suit.9

In his original emergency petition for writ of mandamus filed in the Texas Supreme Court, Wilson argued that this Court’s August 19, 2015 order granting the City ten days to show the basis for the Court’s jurisdiction would “likely be too late” for his proposed amendment to be placed on the No vember 2015 ballot

. Cog nizant of Texas Rule of Appellate Procedure 52.3(e) 6 requiring him to first file his petition with this Court, Wilson asserted that “given the time constraints, there is simply not enough time to go through both Courts, and thus a ‘ compelling

reason ’ within the meaning of the rule applies here for Relators to file with this Court and not the Houston Court of Appeals.”
W ilson’s trial court pleadings , t he July 24, 2015 hearing on his mandamus petition, and his emergency petition for wr it of mandamus filed in the Texas Supreme Court , demonstrate that Wilson’s objective w as to have his proposed amendment placed on the November 2015 ballot. Because t he deadline to place
issues on the November 2015 ballot as well as the November 2015 elect ion have

6 Texas Rule of Appellate Procedure 52.3(e) provides: The petition must state, without argument, the basis of the court ’ s jurisdiction. If the Supreme Court and the court of appeals have concurrent jurisdiction, the petition must be presented first to the court of appeals unless there is a compelling reason not to do so. If the petition is filed in the Supreme Court without first being pr esented to the court of appeals, the petition must state the compelling reason why the petition was not first presented to the court of appeals. T EX

. R. A PP

. P . 52.3

.10

passed , Wilson’s mandamus suit and the July 28 order that is the subject of this appeal are moot

. Hallman , 159 S.W.3d at 642 (noting that if controversy ceases to exist or parties lack legally cognizable interest in outcome at any stage, case
becomes moot ); Jones , 1 S.W.3d at 86 (“ A case becomes moot if at any stage there ceases to be an actual controversy between the parties.” ).
In the “Response to Statement of Issues” section of his brief , Wilson states in conclusory fashion that a c laim of m ootness “ must first be raised by the trial

court. ” To the c ontrary, a case may be dismissed as moot at any stage of the proceedings, including on appeal. See Heckman , 369 S.W.3d at 162 (“If a case is or becomes moot, the court must vacate any order or judgment previously issued and dismiss the case for want of jurisdiction.”)

. Notably, Wilson acknowledged in his first amended petition that the issue might become moot, alleging that

“ Defendants intend to unreasonably thwart Wilson’s efforts to obtain a vote on the matter by delaying the matter in court until the issue becomes moot ” (emphasis added). Accordingly, w e sustain the City’s first issue. Because we have concluded
that W ilso n’s underlying suit and the trial court’s July 28 , 2015 order are moot, we do not reach the City’s other issues challenging the trial court’s order. See T EX
. R.
A PP
. P. 47.1.11 Conclusion We vacate the trial court’s July 2 8 , 2015 order and dismiss the case for want of jurisdiction

.

Russell Lloyd Justice Panel consists of Justices Higley, Huddle, and Lloyd.