Bill White, Mayor, City of Houston, and Houston City Council v. Carroll G. Robinson, Bruce R. Hotze, and Jeffrey N. Daily

Reversed and Remanded and Opinion filed April 3, 2008

Reversed

and Remanded and Opinion filed April 3, 2008.

In The

Fourteenth Court of

Appeals

_______________

NO. 14-06-00167-CV

_______________

BILL WHITE, MAYOR, CITY OF HOUSTON,

AND HOUSTON CITY COUNCIL, Appellants

V.

CARROLL G. ROBINSON, BRUCE R. HOTZE, AND JEFFREY N.

DAILY, Appellees

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 04-72705

O P I N I

O N

Appellees,

Carroll G. Robinson, Bruce R. Hotze, and Jeffrey N. Daily, sued appellants,

Bill White, Mayor of the City of Houston, and Houston City Council

(collectively A the City @ ), seeking a declaratory judgment that a citizen-initiated proposition

passed by voters is valid and must be enforced. The trial court denied the

City = s plea to the jurisdiction and motion

for summary judgment. The trial court granted appellees = motion for summary judgment and

entered a final judgment.

The City

presents six issues for review. First, the City contends the trial court had

no authority to consider this suit because appellees were required to pursue an

election contest or quo warranto proceeding. In its second and third issues,

the City argues the trial court did not have subject matter jurisdiction because

appellees lack standing to assert their claim. The City = s fourth, fifth, and sixth issues

pertain to the merits of appellees = claim: the City asserts the trial

court erred by denying the City = s motion for summary judgment and granting appellees = motion for summary judgment. We

conclude the City = s second and third issues are dispositive because appellees

have failed to establish standing. However, appellees must be afforded a

reasonable opportunity to amend their pleadings and cure the jurisdictional

deficiency. Accordingly, we reverse the trial court = s final judgment and remand.

I. Background

The City

approved an ordinance placing two propositions for amendments to the city

charter on the ballot in a November 2004 election: A Prop. 1 @ and A Prop. 2. @ [1]

Prop. 1

was placed on the ballot pursuant to the City = s own motion. Prop. 1 pertains to A Limits on Annual Increases in City

Property Taxes and Utility Rates. @ Prop. 1 grants the City A full authority to assess and collect

any and all revenues of the city without limitation, except as to ad valorem

taxes and water and sewer rates. @ Although the full text of Prop. 1

was set forth in the election ordinance, the following summary was included on

the ballot:

The Charter of the City of Houston shall be amended to

require voter approval before property tax revenues may be increased in any

future fiscal year above a limit measured by the lesser of 4.5% or the

cumulative combined rates of inflation and population growth. Water and sewer

rates would not increase more than the cumulative combined rates of inflation

and population growth without prior voter approval. The Charter Amendment also

requires minimum annual increases of 10% in the senior and disabled homestead

property tax exemptions through the 2008 tax year.

Prop. 2

resulted from a citizen-initiated referendum petition. Prop. 2 concerns A Limits on All Combined City Revenues. @ Although the full text of Prop. 2

was set forth in the election ordinance, the following summary was included on

the ballot:

The City Charter of the City of Houston shall be

amended to require voter approval before the City may increase total revenues

from all sources by more than the combined rates of inflation and population,

without requiring any limit of any specific revenue source, including water and

sewer revenues, property taxes, sales taxes, fees paid by utilities and

developers, user fees, or any other sources of revenues.

On the

November 2004 ballot, the electorate was allowed to vote for or against each

proposition. Prop. 1 and Prop. 2 each passed with a majority of the votes cast

on the particular proposition. Prop. 1 received more favorable votes than

Prop. 2.

After

the election, for two independent reasons, the City determined Prop. 1 is

legally binding and Prop. 2 would not be enforced. First, in the election

ordinance, the following A poison pill @ provision was included after the text of Prop. 1:

If another proposition for a Charter amendment

relating to limitations on increases in City revenues is approved at the same

election at which this proposition is also approved, and if this proposition

receives the higher number of favorable votes, then this proposition shall

prevail and the other shall not become effective.

Citing this provision,

the City asserts Prop. 1 must prevail because it received more favorable votes

than Prop. 2.

Alternatively,

the City relies on Article IX, Section 19 of the Houston City Charter which

provides, in pertinent part:

. . . at any election for the adoption of amendments

if the provisions of two or more proposed amendments approved at said election

are inconsistent the amendment receiving the highest number of votes shall

prevail.

The City posits that

Prop. 1 and Prop. 2 are inconsistent; thus, Prop. 1 must prevail because it

received more favorable votes. [2]

Appellees

sued the City, seeking a declaratory judgment that Prop. 1 and Prop. 2 must

both be added to the City Charter. As we will later discuss in more detail,

appellees are Houston citizens who sponsored and voted for Prop. 2. In

essence, appellees allege the A poison pill @ provision is invalid because (1) it was not included within

the text of Prop. 1 in the election ordinance, or (2) alternatively,

enforcement of only Prop. 1 pursuant to the A poison pill @ provision would violate the Texas

Constitution and Local Government Code. Appellees also challenge the City = s refusal to enforce Prop. 2 based on

Article IX, Section 19 of the City Charter, alleging (1) Prop. 1 and Prop. 2

are not inconsistent and may peacefully coexist, or (2) alternatively,

application of Article IX, Section 19 would violate the Texas Constitution and

Local Government Code.

The City

filed a plea to the jurisdiction, followed by a supplemental plea, contending,

inter alia, that appellees lack standing to assert their claim. The City also

filed a motion for summary judgment and a supplemental motion. The trial court

denied the City = s plea to the jurisdiction and motion for summary judgment.

Subsequently, the trial court denied the City = s request for reconsideration of its

motion for summary judgment. Appellees also filed a motion for summary

judgment which the trial court granted. The trial court then signed a final

judgment. We are presented with the appeal from this final judgment. [3]

Meanwhile,

appellees sought writs of mandamus in the First Court of Appeals, complaining

that the City failed to perform certain ministerial duties with respect to the

election. See In re Robinson , 175 S.W.3d 824 , 826 B 27 (Tex. App. C Houston [1st Dist.] 2005, orig.

proceeding). The court held that the Mayor had a non-discretionary duty to

certify all the amendments, including Prop. 2, to the Secretary of State. Id.

at 829 B 30 (citing Tex. Loc. Gov = t Code Ann. ' 9.007(a) (Vernon 2008)). [4]

The court also held that City Council had a non-discretionary duty to enter an

order in the city records declaring all the propositions had been adopted by

voters. Id. at 830 B 32 (citing Tex. Loc. Gov = t Code Ann. ' 9.005 (Vernon 2008)). [5]

However, the court specifically expressed no opinion on the validity of Prop. 2 C the issue in the present case. See

id.

II. Standing

In its

second and third issues, the City contends that appellees lack standing to

assert their claim. Standing is a constitutional prerequisite to maintaining

suit in federal or state court. S. Tex. Water Auth. v. Lomas , 223

S.W.3d 304, 307 (Tex. 2007); Williams v. Lara , 52 S.W.3d 171, 178 (Tex.

2001). As a component of subject matter jurisdiction, standing is never

presumed and cannot be waived. See Tex. Ass = n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440 , 443 B 44, 445 (Tex. 1993); Concerned

Cmty. Involved Dev., Inc. v. City of Houston , 209 S.W.3d 666, 670 (Tex.

App. C Houston [14th Dist.] 2006, pet.

denied). Subject matter jurisdiction in a declaratory-judgment action depends

on whether the underlying controversy is within the court = s jurisdiction; the Declaratory

Judgment Act does not confer additional jurisdiction upon a court. Rush v.

Barrios , 56 S.W.3d 88, 105 (Tex. App. C Houston [14th Dist.] 2001, pet.

denied).

A party

may challenge subject matter jurisdiction by a plea to the jurisdiction. Bland

Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000); In re

Sullivan , 157 S.W.2d 911 , 914 (Tex. App. C Houston [14th Dist.] 2005, orig.

proceeding, [mand. denied]). A plea to the jurisdiction is a dilatory plea; it

is filed to defeat claims, regardless of whether they have merit. Bland ,

34 S.W.3d at 554 ; Sullivan , 157 S.W.2d at 914. When reviewing a trial

court = s order on a plea to the

jurisdiction, we may not weigh the claim = s merits but must consider only the

pleadings and evidence relevant to the jurisdictional issues. Bland , 34

S.W.3d at 554 B 55; Sullivan , 157 S.W.2d at 914 B 15. When a plea to the jurisdiction

challenges the pleadings, we determine if the plaintiff has alleged facts

affirmatively demonstrating the trial court = s jurisdiction. Tex. Dep = t of Parks and Wildlife v. Miranda 133 S.W.3d 217, 226 (Tex. 2004)

(citing Tex. Ass = n of Bus . 852 S.W.2d at 446 ). [6]

We construe the pleadings in the plaintiff = s favor and look to the pleader = s intent. Id. (citing

Tex. Ass = n of Bus. , 852 S.W.2d at 446 ); Sullivan , 157 S.W.2d at 914.

Standing is a question of law that we review de novo. Concerned Cmty. ,

209 S.W.3d at 670 (citing Mayhew v. Town of Sunnyvale , 964 S.W.2d 922,

928 (Tex. 1998)). Standing may be predicated upon common‑law or

statutory authority. See Williams , 52 S.W.3d at 178 B 79; Hunt v. Bass , 664 S.W.2d

323, 324 (Tex. 1984). The common-law rules governing standing apply except when

standing is conferred by statute. Williams , 52 S.W.3d at 178 B 79; Hunt , 664 S.W.2d at 324 .

In this case, appellees contend (1) they satisfy the common-law rules governing

standing, or (2) alternatively, Prop. 2 includes a provision that is analogous

to statutory conferral of standing. We disagree with both contentions.

A. Common-Law Rules Governing

Standing

The

common-law rules governing standing require A a real controversy between the

parties, which . . . will be actually determined by the judicial declaration

sought. @ Brown v. Todd , 53 S.W.3d

297, 305 (Tex. 2001); Tex. Ass = n of Bus. , 852 S.W.2d at 446 ; Concerned

Cmty. , 209 S.W.3d at 670 . Generally, to have standing, a plaintiff must

demonstrate he A possesses an interest in a conflict distinct from that of the

general public, such that the defendant = s actions have caused the plaintiff

some particular injury. @ Williams , 52 S.W.3d at 178 B 79; Concerned Cmty. , 209

S.W.3d at 670 ; see Lomas , 223 S.W.3d at 307 ; Brown , 53 S.W.3d at

302 .

In their

live pleadings, appellees claim they satisfy this standard because each

participated in some or all of the following activities: (1) organized a

petition drive for Prop. 2; (2) helped draft the final wording of the petition

and participated in underwriting this effort; (3) signed the petition later

known as Prop. 2; (4) worked on the A Let the People Vote @ and A Vote Yes on Prop 2 @ campaigns to ensure passage of Prop.

2; (5) contributed substantially to the A Vote Yes on Prop 2 @ campaign; (6) were leaders in the A Vote Yes on Prop 2 @ advertisement campaign; and (7)

voted in favor of Prop. 2.

The

parties do not cite, and we have not found, authority directly addressing

whether a plaintiff possesses standing by virtue of these activities to

challenge a city = s interpretation of, and refusal to enforce, a

citizen-initiated municipal proposition adopted by voters. Appellees rely on

two Texas Supreme Court cases to support the contention that they have standing

by virtue of these activities: Glass v. Smith , 244 S.W.2d 645 (Tex.

1951); and Blum v. Lanier , 997 S.W.2d 259 (Tex. 1999).

In Glass ,

several members of the City of Austin fire department signed an initiative

petition to call an election on a proposed ordinance concerning employment

issues. 244 S.W.2d at 647 . The Texas Supreme Court affirmed a writ of

mandamus requiring city authorities to hold an election after the requisite number

of signatures were collected. See id. at 648 , 653 B 54. The court held that the

plaintiffs, as petition signers, had a justiciable interest in ensuring their

proposed ordinance was submitted to the electorate. See id.

More

recently, in Blum , the plaintiff spearheaded a petition drive, and

signed the petition, to propose an amendment to the City of Houston charter

ending preferential treatment in public employment and contracting. 997 S.W.2d

at 260, 261 . The City Council adopted an ordinance calling an election on the

proposed amendment. Id. at 261 . The plaintiff objected to the

description of the amendment to be used on the ballot. Id. The Texas

Supreme Court ultimately held that the plaintiff had standing to seek

injunctive relief forbidding the City = s use of misleading language. See

id. at 260 B 65. Relying in part on Glass , the court stated that petition

signers, as sponsors of an initiative, possess a justiciable interest in the

valid execution of the election that is distinct from the interest possessed by

the general public. Id. at 262 (citing Glass , 244 S.W.2d at 648 ,

653 B 54).

Citing Glass

and Blum , appellees argue that their sponsorship of Prop. 2 and

involvement to ensure passage establish standing to challenge the City = s refusal to enforce the

proposition. In contrast, the City argues that these facts are insufficient to

establish standing and Glass and Blum are inapplicable. The City

primarily relies on Brown , 53 S.W.3d 297 . Although Brown is not

directly on point, it does support the contention that appellees lack

standing.

In Brown ,

Houston City Council approved an ordinance prohibiting discrimination based on

sexual orientation in city employment and contracting. Id. at 299 .

Pursuant to a procedure authorized by the city charter, the plaintiff and other

citizens organized a campaign to repeal the ordinance. Id. At a

referendum election in 1985, voters, including the plaintiff, rejected the

ordinance. Id. In 1998, the Mayor issued an executive order,

prohibiting discrimination based on sexual orientation in municipal employment

and city programs. Id. Nine days later, the plaintiff sued the Mayor

and the City, seeking a declaration that the executive order was invalid and an

injunction against its enforcement. Id. [7]

The plaintiff alleged that the executive order nullified the 1985 election

results and usurped City Council = s authority. Id.

The

Texas Supreme Court ultimately held that the plaintiff lacked standing. Id.

at 302 B 04. The plaintiff claimed standing

because he voted for the prevailing 1985 referendum rejecting the

anti-discrimination ordinance and the subsequent executive order negated his

vote. Id. at 302 . The court concluded the plaintiff did not possess a

sufficiently peculiar interest based on his status as a voter and he failed to

identify a unique injury. See id. Instead, his injury was shared by

all 198,563 electors who voted for the 1985 referendum rejecting the anti-discrimination

ordinance. Id. Accordingly, the plaintiff had no standing to protect

his A no @ vote from future action. Id.

at 303 .

Appellees

attempt to distinguish Brown by emphasizing that the plaintiff asserted

standing only as a voter, whereas appellees claim standing as voters and

sponsors of Prop. 2. Therefore, appellees argue their position is similar to

the status of the Glass and Blum plaintiffs.

We

acknowledge the Brown court specifically noted that the plaintiff

asserted standing as a voter C not as a petition organizer and signer. Id. at 302

n.2. However, the court then discussed the effect of sponsorship activities on

the standing issue. See id. at 302 B 03. [8]

The court recognized the Glass and Blum plaintiffs had standing

because they challenged the process relative to their sponsored

referendum. See id. As petition signers, they possessed a

particular interest in ensuring their proposed ordinances were submitted to the

electorate and properly worded on the ballot. See id. (explaining Glass ,

244 S.W.2d at 648 ; Blum , 997 S.W.2d at 262, 264 ).

However,

the Brown court distinguished a challenge to the election process

from a claim concerning the election results , stating it has never recognized

standing on the basis of the results C as opposed to the process C of an initiative election. Id. at

302 . Significantly, the court stated, A Blum and Glass are narrow holdings,

affording petition signers the right to challenge the referendum process

but saying nothing about the right to protect the referendum results from

subsequent changes . @ Id. at 303 (emphasis added). Further, the court

remarked that Blum and Glass were consistent with the judiciary = s limited role in election disputes,

which provides a remedy to undo elections tainted by fraud, illegality, or

other irregularity. Id.

Accordingly,

the Brown court did not directly address the standing afforded a

referendum sponsor with respect to the results of an election. See id.

at 302 B 04. However, the court did indicate

that a referendum sponsor = s standing is limited to challenging the election process and

does not extend to protecting the results from subsequent change. See id.

Appellees do not cite, and we have not found, any authority since Brown ,

in which the Texas Supreme Court has extended the standing afforded referendum

sponsors by allowing them to protect the election results from subsequent

change. In fact, when granting appellees = mandamus petition, the First Court

of Appeals cited Brown as recognizing A Blum and Glass stand for the

proposition that petition signers have standing to challenge the referendum

process, although they do not have standing to challenge the results of the

election. @ Robinson , 175 S.W.3d at 827 (citing Brown , 53 S.W.3d at

301 ). [9]

Therefore,

in light of Brown , the parties dispute whether appellees = claim concerns the election process

or results. We conclude that appellees = claim cannot be characterized as a

challenge to the election process. Because Prop. 2 was passed, obviously

appellees would not challenge the process and argue it was tainted by fraud,

illegality, or other irregularity. Clearly, appellees are completely satisfied

with the election process because they achieved their objective: Prop. 2 was

submitted to the electorate; voters passed the proposition; and it was

certified and adopted. [10]

Rather,

appellees are attempting to protect the election results from subsequent change

by the City. As appellees acknowledge at one point in their brief, they A are not in any way contesting the

validity of the election. Instead, Appellees are arguing that [the City = s] interpretation and implementation

of the election results is completely inaccurate and illegal. @ (emphasis added). [11]

In short, this dispute has moved beyond the election process. The City = s ministerial duties with respect to

the election process are complete. Instead, appellees now challenge the City = s decision-making relative to its

construction of two adopted propositions (Prop. 1 and Prop. 2) and its refusal

to enforce one such proposition (Prop. 2). [12]

Arguably,

appellees have a greater interest in enforcement of Prop. 2 than other voters.

Additionally, we recognize appellees = efforts to place Prop. 2 on the

ballot and obtain passage seem futile if the City ultimately refuses to enforce

the proposition. As the Brown dissenting author questioned, A what use is an interest in an

election = s process without a corresponding

interest in enforcing the results? @ Brown , 53 S.W.3d at 307 (Enoch,

J., concurring and dissenting). [13]

Nonetheless, the majority opinion in Brown supports a conclusion that

referendum sponsors, and voters, lack standing to challenge the City = s construction of, and refusal to

enforce, an adopted proposition after the election is complete. See id.

at 302 B 04.

Moreover,

under the standing criteria imposed by our courts, we do not focus solely on

whether the claimant asserts a particular interest; rather, we consider whether

the claimant alleges a distinct injury caused by the defendant = s actions. See Lomas , 223

S.W.3d at 307 ; Williams , 52 S.W.3d at 178 B 79; Brown , 53 S.W.3d at 302 ; Concerned

Cmty. , 209 S.W.3d at 670 . Because Prop. 2 was submitted to the electorate

and passed by voters and adoption was reflected in the city records, appellees

have not alleged any distinct injury by virtue of their sponsorship

activities. Instead, appellees are now essentially equal to all other persons

who voted for Prop. 2 and wish to ensure it is subsequently enforced. In a

broader sense, appellees are now equal to all City taxpayers, or even citizens,

who wish to ensure Prop. 2 is enforced because they might be affected by its

terms. Therefore, appellees have not claimed an injury caused by the City = s refusal to enforce Prop. 2 that is

distinct from the injury, if any, suffered by other voters, taxpayers, or

citizens.

In sum,

appellees have not demonstrated they possess standing under the common-law

standard. We sustain the City = s second issue.

B. The Language of Prop. 2

Alternatively,

in their live pleadings, appellees allege they have standing based on the

following provision in Prop. 2:

Any person who voted in a City of Houston election

held on this Amendment shall have the right and standing to enforce the

provisions of any Charter Amendment approved by the voters at this election by

injunction, declaratory judgment, contempt and/or any other remedy provided by

law, notwithstanding any other valid law of equal or lesser authority in

conflict, including all of the above paragraphs of this Amendment.

Appellees

cite authority recognizing that citizens who exercise their petition and

referendum rights A act as and > become in fact the legislative branch of the municipal

government. = @ Blum , 997 S.W.2d at 262 (quoting Glass , 244

S.W.2d at 649 ). Therefore, appellees contend the above-cited provision is

analogous to a statutory conferral of standing by the Texas Legislature. For

several reasons, we disagree that this provision is valid as a statutory

conferral of standing.

Appellees

correctly assert the Texas Legislature may confer standing through a statute. See

Scott v. Bd. of Adjustment , 405 S.W.2d 55 , 56 B 7 (Tex. 1966); Sullivan , 157

S.W.2d at 915; see also Williams , 52 S.W.3d at 178 B 79; Hunt , 664 S.W.2d at 324 .

The A judge‑made criteria @ for determining standing do not

apply when the Legislature has conferred standing through a statute. Sullivan ,

157 S.W.2d at 915. [14] However,

citizens exercising their petition and referendum rights act as the legislative

body of a municipal government C not the Texas Legislature . See

Blum , 997 S.W.2d at 262 . Appellees cite no cases in which the Texas

Supreme Court, or any other court, has expanded statutory standing to

incorporate municipal referendum sponsors seeking to confer standing through a

proposition.

Further,

as we have mentioned, the requirement of standing derives from constitutional

principles: the separation‑of‑powers doctrine, prohibiting courts

from issuing advisory opinions deciding abstract questions of law without

binding the parties; and, in Texas, the open‑courts provision, which

contemplates access to the courts for only those litigants who have suffered an

actual, as opposed to a general or hypothetical, injury. Lomas , 223

S.W.3d at 307 (citing Brown , 53 S.W.3d at 302 ; Tex. Ass = n of Bus. , 852 S.W.2d at 443 B 44). Statutory conferral of standing

by the Texas Legislature is an exception to the general criteria for

determining standing. See Hunt , 664 S.W.2d at 324 ; see also

Williams , 52 S.W.3d at 178 B 79; Sullivan , 157 S.W.2d at 915. We decline to create

a further exception concerning a requirement grounded in constitutional

principles when the Texas Supreme Court has not done so.

In

addition, appellees filed this suit in state district court. The City argues

that a city government has no authority to dictate the existence of

subject matter jurisdiction, including standing, in a state district

court. The City cites Berry v. City of Forth Worth , in which a

municipal ordinance, defining the method for service of process in a civil

action arising out of a violation, conflicted with general Texas law governing

service of process. See 124 S.W.2d 842, 846 (Tex. 1939). The supreme

court recognized that a trial court obtains personal jurisdiction over a

defendant in a civil action via service of process. See id. Therefore,

the court held that the pertinent portion of the ordinance was invalid because

a city government lacked power to define how Texas civil courts obtain personal

jurisdiction over a defendant. See id. Likewise, Berry supports

a conclusion that a municipal government C whether the city council or

referendum sponsors acting as the legislative branch C lacks power to dictate existence of

subject matter jurisdiction, including standing, in a state district court.

In

response, appellees cite Article IX, Section 1 of the Houston City Charter

which provides, in pertinent part:

Any citizen who is a property tax-payer of the City of

Houston may maintain an action in the proper court to restrain the execution of

any illegal, unauthorized or fraudulent contract or agreement on behalf of said

City, and to restrain any disbursing officer of said City from paying any

illegal, unauthorized or fraudulent bills, claims or demand against said City,

or any salaries or compensation to any person in its administrative service

whose appointment has not been made in pursuance of the provisions of law and

the regulations in force thereunder. . . .

According

to appellees, this provision indicates that a city government may confer

standing, even in state district court. However, this provision is fairly

consistent with a long-established, limited exception to the typical standing

criteria. Specifically, a taxpayer has standing to sue in equity to enjoin the

illegal expenditure of public funds without showing a distinct injury. Williams ,

52 S.W.3d at 179 ; Bland , 34 S.W.3d at 555 B 56; see Lomas , 223 S.W.3d at

307 B 08; Osborne v. Keith , 177

S.W.2d 198, 200 (Tex. 1944). This exception encompasses a taxpayer = s right to enjoin expenditure of

public funds under a void or illegal contract. Osborne , 177 S.W.2d at

200 ; see Lomas , 223 S.W.3d at 307 B 08; Bland , 34 S.W.3d at 555 B 58. [15]

In

contrast, the standing provision in Prop. 2 alters the established criteria for

determining standing in a state district court. The provision confers standing

to enforce Prop. 2 on any person who voted in the election, without requiring

the voter to assert a distinct injury. However, the provision conflicts with Brown ,

in which the court held that a voter lacked standing to protect the results of

an election from future action by the City because he could not allege a

sufficiently distinct injury. See 53 S.W.3d at 302 B 04. Consequently, we decline to

recognize a standing provision in a citizen-initiated, municipal proposition

when enforcement would circumvent a holding of our supreme court.

Moreover,

it is one matter for the City to prescribe that it may be sued by taxpayers

relative to certain issues. It is quite another matter for referendum

sponsors, notwithstanding their role as the City = s A legislative body, @ to prescribe that they, and others,

may sue the City. In this regard, the City = s ability to govern effectively might

be seriously hampered if referendum sponsors were allowed to confer standing on

persons simply by including a provision in a proposition.

For

instance, if the standing provision at issue were valid, 567, 331 persons who

voted in the election at issue could sue the City over its refusal to initially

implement the adopted proposition. Further, the provision is somewhat vague

because it gives voters A standing to enforce the provisions of @ Prop. 2. Arguably, if this

provision were valid, voters could also challenge the City = s actions in every future budget

cycle to ensure compliance with Prop. 2. Consequently, enforcing this

provision would potentially subject the City = s decision-making to numerous,

unlimited challenges by persons who can claim no distinct injury therefrom. We

reject appellees = suggestion that the distinct-injury requirement imposed by

our courts may be so easily circumvented by inclusion of a standing provision

in a citizen-initiated proposition.

Finally,

appellees = reasoning relative to the standing provision in Prop. 2 is circular. In

short, enforcing the standing provision would entail a determination that Prop.

2 is valid C the dispute in this litigation. But, a court cannot declare Prop. 2

valid unless appellees first establish standing. Appellees maintain the

standing provision is nonetheless effective because the City entered an order

in its records reflecting Prop. 2 was adopted by voters. Local Government Code

section 9.005(b) provides that an amendment does not take effect until

the governing body enters the prescribed order reflecting adoption by voters.

Tex. Loc. Gov = t Code Ann. ' 9.005(b). However, section 9.005(b) does not mandate that

the amendment is necessarily valid upon entry of the order. See id.

Indeed, when compelling the City to enter the prescribed order, the First Court

of Appeals acknowledged that issues remained regarding validity of Prop. 2. See

Robinson , 175 S.W.3d at 830 B 32. Although the City performed this

ministerial act to complete the election process, validity of Prop. 2 is

disputed. Consequently, even if a standing provision in a citizen-initiation

proposition were analogous to statutory conferral of standing by the Texas

Legislature, we cannot conclude that the statutory-standing principle applies

in the present situation.

In sum,

appellees do not have standing based on the above-cited provision in Prop. 2.

We sustain the City = s third issue.

III. Conclusion

In sum,

appellees have failed to demonstrate they possess standing under common-law

rules or the above-cited provision in Prop. 2. Therefore, the trial court

erred by denying the City = s plea to the jurisdiction. The City requests that we

reverse the trial court = s judgment and order dismissal of appellees = suit for lack of jurisdiction.

Instead, we conclude that remand is the appropriate disposition.

If a

plaintiff fails to plead sufficient facts affirmatively demonstrating the trial

court = s jurisdiction, but the pleadings do

not affirmatively demonstrate incurable defects in jurisdiction, the issue is

one of pleading sufficiency and the plaintiff should be afforded the

opportunity to amend. Miranda , 133 S.W.3d at 226 B 27; County of Cameron v. Brown ,

80 S.W.3d 549, 555 (Tex. 2002). However, if the pleadings affirmatively negate

the existence of jurisdiction, a plea to the jurisdiction may be granted

without allowing the plaintiff an opportunity to amend. Miranda , 133

S.W.3d at 226 ; Brown , 80 S.W.3d at 555 . The Texas Supreme Court

recently recognized that the opportunity to amend pleadings that are

insufficient to establish, but do not affirmatively negate, jurisdiction arises

once a court determines the pleadings are insufficient. See Tex.

A&M Univ. Sys. v. Koseoglu , 233 S.W.3d 835 , 839 B 40 (Tex. 2007). In particular, a

plaintiff deserves the opportunity to amend his pleadings, if the defects are

curable, when an appellate court determines a plea to the jurisdiction should

have been sustained. See id. [16]

In this

case, although appellees have failed to establish standing, their pleadings do

not affirmatively negate standing. We cannot foreclose the possibility that

appellees may allege other facts demonstrating standing. Therefore, appellees

are allowed a A reasonable opportunity @ to amend their pleadings before the trial court = s final disposition of the City = s plea to the jurisdiction.

Accordingly,

we reverse the trial court = s final judgment and remand for further proceedings

consistent with the opinion.

/s/ Charles

W. Seymore

Justice

Judgment rendered and

Opinion filed April 3, 2008.

Panel consists of

Justices Yates, Seymore, and Edelman. *

[1] A Prop. 3, @ relating to the City Controller = s role in performing internal audits, was also

included on the ballot, but this proposition is not at issue in this suit.

[2] As the City notes, enforcement of only Prop. 1

pursuant to the A poison pill @

provision does not require an inconsistency between Prop. 1 and Prop. 2. In

contrast, Article IX, Section 19 of the city charter requires that amendments

approved at the same election be inconsistent before the one receiving more

votes must prevail.

[3] Curiously, the final judgment omits any relief other

than awarding attorney = s fees to appellees. The trial court generally

recited that it granted final judgment in favor of appellees. The trial court

also stated that it granted appellees =

motion for summary judgment and denied the City = s motion for summary judgment, motion for reconsideration, and motion

for denial of attorney = s fees. The trial court incorporated these orders

into the final judgment. However, the trial court did not make any

declarations regarding the rights of the parties. In particular, the trial

court did not declare that Prop. 2 is effective as requested by appellees in

their petition. Moreover, in the referenced orders, the trial court did not

make any declarations. Nevertheless, because appellees lack standing, we need

not consider the effect of a judgment which does not expressly grant any relief

except attorney = s fees.

[4] See Tex. Loc. Gov = t Code Ann. '

9.007(a) (Vernon 2008) ( A As soon as practicable after a municipality adopts a

charter or charter amendment, the mayor or chief executive officer of the

municipality shall certify to the secretary of state an authenticated copy of

the charter or amendment under the municipality = s seal showing the approval by the voters of the municipality. @ ).

[5] See Tex. Loc. Gov = t Code Ann. '

9.005 (Vernon 2008) ( A (a) A proposed charter for a municipality or a

proposed amendment to a municipality = s

charter is adopted if it is approved by a majority of the qualified voters of

the municipality who vote at an election held for that purpose. (b) A charter

or an amendment does not take effect until the governing body of the

municipality enters an order in the records of the municipality declaring that

the charter or amendment is adopted. @ ).

[6] In this case, the City does not dispute appellees = factual allegations purportedly establishing

standing. The City merely contends that, as a matter of law, these facts do

not confer standing. Further, there are no factual issues created by the

evidence pertinent to the jurisdictional issue.

[7] A City Council member also sued the City, and the

court evaluated whether he had standing. See Brown , 53 S.W.3d at 299 ,

304 B 06. But, only the issue concerning standing of the

private citizen is relevant to the present case.

[8] Although the plaintiff claimed standing only as a

voter, he was indeed a sponsor of the referendum because he and others

organized a campaign and petitioned the City to repeal the anti-discrimination

ordinance. See Brown , 53 S.W.3d at 299 .

[9] Appellees also attempt to distinguish Brown

because the Mayor = s executive order, which allegedly nullified voters = rejection of the anti-discrimination ordinance,

occurred thirteen years after the election. See Brown , 53 S.W.3d

at 299 . However, the court did not indicate this passage of time influenced

its statement that the court has never recognized standing of referendum

sponsors or voters to protect election results from subsequent change. See

id. at 302 B 04. Therefore, despite this substantial passage of

time between the election and the Mayor = s

action, we find Brown is persuasive in this case.

[10] When granting appellees = mandamus petition, the First Court of Appeals

recognized they had standing to compel the City to perform its ministerial acts

of certifying the election results and recording adoption of Prop. 2 in the

city records because appellees challenged the process, not the results, of the

election. See Robinson , 175 S.W.3d at 828 . Thus, the court

stated that appellees had a particular interest in seeking to have a

proposition they A sponsored @

enacted as law once it was adopted by citizens in a referendum election. Id.

However, the court did not consider whether appellees had standing to challenge

the City = s determination that Prop. 2 is invalid and its

refusal to enforce the proposition once adopted. See id. at 826 B 32.

[11] Appellees make somewhat inconsistent arguments. On

one hand, appellees argue they satisfy the concept affording standing to

petition signers challenging the election process. On the other hand, in

response to the City = s separate argument that appellees were required to

file an election contest, appellees make the above-quoted statement, insisting

they are not challenging the election process. In fairness to appellees, the

City also makes somewhat inconsistent arguments by contending appellees were

required to file an election contest, while claiming this dispute involves the

election results. Regardless of these inconsistent arguments, we conclude this

dispute concerns the election results C not

the process.

[12] As we have explained, the City refuses to enforce

Prop. 2 based on its construction of Prop. 2 in conjunction with Prop.1.

[13] The Brown dissenting author opined that the

plaintiff possessed standing, as referendum sponsor and voter, to challenge

the Mayor = s action nullifying the previous election results. See

53 S.W.3d at 306 B 08 (Enoch, J., concurring and dissenting).

[14] Instead, the analysis is a straight construction of

the relevant statute to determine upon whom the Legislature conferred standing

and whether the claimant falls in that category. Sullivan , 157 S.W.2d

at 915.

[15] Usually, to possess standing to contest government

decision-making, a taxpayer must show he has suffered a particularized injury

distinct from one sustained by the general public because A > [g]overnments cannot operate if every citizen who

concludes that a public official has abused his discretion is granted the right

to come into court and bring such official = s

public acts under judicial review. = @ Bland ,

34 S.W.3d at 555 B 56 (quoting Osborne , 177 S.W.2d at 200 ).

[16] Until recently, some disagreement existed among

courts regarding the point at which a plaintiff must be afforded an opportunity

to amend. See Tex. A&M Univ. Sys. v. Koseoglu , 167

S.W.3d 374 , 380 B 84 (Tex. App. C Waco

2005), rev = d in part ,

233 S.W.3d 835 (Tex. 2007) (explaining various approaches of courts). Under

one view, a plaintiff was allowed an opportunity to amend his pleadings after a

court determined they were insufficient to establish jurisdiction. See id.

Other courts indicated that the opportunity to amend arose after a defendant

filed its plea to the jurisdiction notifying the plaintiff of alleged defects,

but before the trial court ruled on the plea. See id. Under

this reasoning, a plaintiff who actually amended his pleadings after the

defendant filed its plea to the jurisdiction could be denied further

opportunity to amend even if the court sustained the plea. See id.

The Texas Supreme Court recently clarified the applicable standard: A > a plaintiff may stand on his pleadings in the face of

a plea to the jurisdiction unless and until a court determines that the

plea is meritorious. = . . . [t]hereafter . . . the plaintiff must be given > a reasonable opportunity to amend his pleadings to

attempt to cure the jurisdictional defects found = unless the pleadings are incurably defective. @ See Koseoglu , 233 S.W.3d at 839 (quoting

lower court, Koseoglu , 167 S.W.3d at 383 , and expressly agreeing with

its statement) (emphasis added). The court rejected the opposite view because

that A proposed rule would essentially allow governmental

entities the unjust advantage of being not only a litigant, but also the judge

of the plaintiff = s pleadings. @ Id.

at 839 B 40.

*

Senior Justice Richard H. Edelman sitting by assignment.