*1 Thus, petitioner in an status.” Id. where proceeding
extradition claims he is mental- incompetent, “the habeas court need
ly
only petitioner determine whether the competent
sufficiently to assist counsel
ascertaining identity his and whereabouts crime.” Id. time of the approach. adopt Georgia
We bar, although Appellant
In the case at mentally incompetent and
claims he is the nature of the
does not understand proceedings, he does not con
extradition incompetent that he is
tend that is so ascertaining
unable assist counsel in
identity presence Michigan or his when allegedly
the crime was committed. More
over, presented record for review our
does not such a contention. corpus review of habeas record
Our (1)
in this matter shows that the extradi- order, documents on their face are
tion
(2) Appellant been with a charged (3) state, Appel- in the demanding
crime request
lant is the named
extradition, Appellant fugitive. is a Ibarra, at 416-17. There-
fore, denying trial court did not err in corpus
Appellant’s requested habeas relief. corpus judgment
The is affirmed. habeas HOTZE, Appellant,
Richard Lee P. Honorable BROWN Houston, Appellees Cross-Appellants,
& Cross-Appellee. Todd,
Rob
No. 14-98-00394-CV. Texas, Appeals of
Court of (14th Dist.).
Dec. *3 Weiss, Douglas
Michael D. John Schla- chter, Houston, appellants. for Pourteau, Hatfield, K. Judy Bertrand L. Houston, appellees. for Panel consists of Chief Justice E. MURPHY and Justices MAURICE LEE.* AMIDEI and MAJORITY OPINION ON REHEARING MURPHY, PAUL C. Chief Justice. original opinion issued We withdraw 24, 1999, in this cause and substitute June opinion place. in its following Brown Mayor Lee City of Houston (Brown) prohib- order signed an executive based on sexual orien- iting discrimination (Hotze) City Richard Hotze tation. (Todd) sued Brown Rob Todd Councilman (the City), asking City of Houston invalid and court to declare the order by temporary preclude its enforcement injunction. Brown and the permanent claiming a motion to dismiss City filed The had no Hotze and Todd had no court found Hotze * assign- sitting by ment. Senior Justice Norman Lee an executive or- temporary signed for a In
granted
application
Todd’s
1-8,
der,
discrimination
interlocutory
prohibiting
Hotze
injunction. By
appeal,
EO
The order
on lack of based on sexual orientation.
challenges the dismissal based
expressly applies
to all
activities
City
and Brown and the
cross-
employ-
employees, including
Todd.
civil service
appeal the denial of the motion as to
is mandato-
Adherence to the order
We affirm.
ees.
disciplinary
ry, and it contains
measures.1
Background
Houston charter states that
commission,
ap-
with the
of Houston held
the civil service
council,
make rules
proposed
proval
ordi-
shall
regarding
referendum
the conduct of its busi-
prohibiting
regulations
nance
discrimination based on
Houston, Tex,
employees.
sexual orientation. Hotze was instrumen-
ness
*4
2,4.
V-a, §§
art.
The rules
Code,
organizing
campaign
tal in
to defeat the ordinance,
employees
in
must
against
regulations
and he voted
it
and
rejected
provisions necessary
prohibit
A
to
majority
referendum.
of voters
include
ordinance,
V-a, § 4. The
go
it did not
into effect.
discrimination. See id. art.
pertinent provisions
against any
employee
1. The
of EO 1-8 are:
ate
or
public
any
of an
member of
because
1. PURPOSE
perceived
individual’s actual or
sexual or-
purpose
to
The
of this Executive Order is
ientation.
prohibit discrimination or retaliation on the
3)All
employees
city
have an affirma-
shall
provide
basis of sexual orientation and to
report, writing, any
duty
tive
to
viola-
programs
activity
city
all
and in all related
tion of this Executive order to
equal employment
opportu-
and economic
his/her
supervisor
manager
the OIG.
nity
every
or
and to
municipal government
level of
regard
without
It
6. COMPLIANCE
to sexual orientation.
is
1)
city’s policy
provide
It
be a
of this Executive
further
to
each
shall
violation
fail,
refuse,
city’s employee
employee
a work environment free of
Order for an
to
or
recruit,
hire,
appoint, promote
train
discrimination and harassment based on
to
or
any
sexual orientation. "Sexual
as
because of such individu-
orientation”
individual
orientation;
limit, segre-
used in this Executive
to the
or to
Order refers
al's sexual
applicants
perceived
gate
classify employees or
actual or
status of a
with
or
respect
sexuality.
way
deprive,
tend
any
to his or her
which would
or
deprive, any
equal oppor-
2. OBJECTIVES
to
individual of
applies
city
tunity
adversely
This Executive Order
to all
ac-
or otherwise
affect
tivities, including
applicant
employee
but not limited
those
of the
or
be-
to
status
(1)
relating
aspects
employment
to
all
individual’s sexual orienta-
cause of such
recruitment,
compen-
appointment,
such as
sation,
tion.
demotion,
2)
promotion, discipline,
It shall be a violation of this Executive
transfers,
recall,
termination,
layoff,
employee
for an
to fail or refuse to
Order
(2)
training opportunities;
any
purchase for
aspects
all
recommend
award,
contract or
upon any
opportunity
contracting
economic
contractor or ven-
such as
based
orientation;
(3)
vending;
city
to
availability
facili-
dor’s sexual
or to fail
ties;
services;
(4)
provision
city
any
of the
make available
member
city
public.
public
all
interactions with the
who would otherwise be entitled to
city facility
receipt of a
use of a
or
upon
5. DUTIES OF CITYEMPLOYEES
service based
the member of
limit,
orientation;
1) "City employee”
public’s
as used in this Execu-
sexual
or
employees
upon
orien-
tive Order shall include all
based
an individual’s sexual
tation, participation
any city
city,
employee
who work for the
whether civil ser-
contract,
any city-
protected
any system,
public
vice
or member
V-a,
activity
grant
exempt
sponsored
in which the individual
or
under Art.
Sec. of
officials,
partici-
including appointive
permitted
the Charter
would otherwise
staff,
professional
pate.
city attorneys and their
part-time, temporary, emergency
to this Executive Order is manda-
Adherence
tory.
Order will
level workers.
Violation of this Executive
executive
action,
2)
employee
disciplinary
City employees
performance
subject
suspension/ter-
employment
up
including indefinite
related duties and as-
to and
signments
retali-
mination.
shall not discriminate or
1997).
that,
council, however,
the court’s
argues
all
He
since
is vested with
it
him for lack of
city,
order dismissed
legislative powers
temporary injunc
effectively
id. art.
denied the
the terms of the charter. See
VII,
tion,
appeal within sec
change
bringing
§
or amend
thus
may
10. It
51.014(a)(4).
V-a, § 2. No
rule. See id. art
tion
commission
city council from
provision precludes the
Co. v. Marvel Rare
General Electric
employees
enacting rules for civil service
Metals,
Supreme
the United States
Court
it to obtain civil service com-
requires
argument. 287 U.S.
considered a similar
ordinances it
approval
mission
of rules and
430, 432-33,
4H injury which was sufficient palpable would and years hence. To so hold election Blum, holding of basis very extend the narrow to do so. also note and we decline We because Hotze distinguishable Soules governmental en-
Blum and Glass involved
in
involvement
not contend that his
does
carry
tities which refused to
out ministeri-
to defeat the referendum
the 1985 effort
Blum,
proposed
al duties.
In
once the
campaign expendi-
extraordinary
involved
pursu-
charter amendment was submitted
only
tures;
complains
he
contrary,
to the
Code,
ant
the Local
Government
expended “time and effort.” Cer-
that he
duty to
City of Houston had a ministerial
injury. Fur-
palpable
not a
tainly, this is
which is
identify
by language
the measure
thermore,
states
although
petition
Hotze’s
Blum,
at 262.
misleading.
not
preserve the time
that he desires to
Glass,
plaintiffs
In
once the
abided
does
spent
campaign,
on the
effort he
charter,
requirements
of the Austin
Brown’s actions caused
explain
not
how
duty
council had a
ministerial
peculiar to himself.
him an
carry
procedure. See
out the initiative
second,
first,
Hotze’s
We overrule
Glass,
present
Todd
theories,
position
which
a lawmaker voted on
issue and
all of
concern his
when
(1)
subsequent acts nullified or lessened the
as a lawmaker:
action denied
Brown’s
generally
of his
significance
vote. Courts
right
participate
him
in the decision-
argument.
on this
find
based
process in an
in
he has
making
area which
Miller,
in
v.
example,
For
307
Coleman
(2)
jurisdiction;
would
policy
exclusive
972,
L.Ed.
59
83
1385
U.S.
S.Ct.
in
put
perpetual
the council
conflict with
(1939), twenty state
cast votes
senators
the mayor; and
Brown’s action nullified
resolution,
twenty
voted in
against
The
lawmaker
propriety
Todd’s vote.
of
435-36,
favor of it.
Id. at
413 449, (1989), N.J.Super. 232 557 683 Capacity A.2d mayor city-owned proper- chose which Although standing, Todd has ty public would be offered for sale and we must also consider whether he has delineated the conditions of sale. Id. at capacity bring “Capacity” to this suit. argued choosing 685. The council authority legal bring to a suit and is Nootsie, property statutory standing. this was within its issue distinct from See County Appraisal Ltd. v. Williamson responsibilities, mayor’s duties and Dist., 659, (Tex.1996); 925 S.W.2d 661 usurped duty. actions Based on this Diehl, 468, 958 470 n. 2 Graves v. S.W.2d interest, the court found the council 1997, (Tex.App [14 Dist.] th no . —Houston standing to mayor. sue the person A pet.). capacity has when he has Lamm, Assembly Colorado General 700 legal authority prosecute to or defend (Colo.1985), P.2d 508 the Colorado General Graves, an action. at 470 See 958 S.W.2d Assembly governor, previ- sued the who capacity n. 2. affecting The circumstances ously authorized money the transfer of to include, to, in sue but not limited despite various accounts assembly’s ex- names, fancy, alienage, insanity, assumed appropriations clusive power. Id. at 510- status, corporate executor and status as a 12. The court found this was suffi- See, Votteler, plaintiff. e.g., Sax v. 648 satisfy cient requirements. (Tex.1983) 661, (infancy); S.W.2d Es case, See id. at 516. In a similar members S.G., 8, tate C.M. v. S.W.2d Michigan legislature sued several 1996, (Tex.App. no [14 Dist.] — Houston state officials and the State Administrative writ) (executor status); Continental Con Board, attempted which to transfer funds tractors, Thorup, Inc. v. Dodak, within departments. various st [1 Dist.] — Houston plaintiff, N.W.2d at 541-42. One writ) (assumed name); no Janak Securi chair of appropriations the house commit- Co., Inc., ty Lumber tee, right approve had a as the chair to or (Tex.App [1 st Dist.] . —Houston disapprove writ) (mental intradepartmental transfers. incompetency); 1 Tex. Jur. (1993). § Id. at 545. Significantly, capac The court noted that Actions ity entity concerns whether a board’s actions deprive would him of his lawsuit, specific can file not a one. right participate in the legislative pro- cess, therefore, it found he had stand- by any Todd is not disabled circum ing. See id.6 above, stance listed is; rather, City do not contend that he Returning to Todd’s allega- cannot act on behalf of assert.Todd tions, we find he can establish however, argument, per the council. This based on his allegation that Brown’s action bring any tains not to can whether Todd usurped power aas council member to bring lawsuit but rather whether he can employment make rules. Presuming, as such, one. ger this As its contention is must, we that the Council has exclu- See, standing, mane to not capacity. e.g., authority promulgate sive non-discrimi- Tucker, Weitinger Pankhurst v. & Todd, rules, nation aas member of that (Tex.App —Corpus . council, peculiar to himself denied) that, writ (stating Christi different than general public, that of the a party to have he must show an which cannot directly enact such rules. As litigation, interest in the either in his own such, standing. Todd has representative). as a appropriations 6. The court approved, despite reject also found that an mittee and his vote committee member who did not have the simply losing it. vote, he was on side of a As right to vote on the transfers issue did not challenge he did not have He sued in with connection the transfer. See id. put one transfer which was before the com- *10 414 520, (Tex.1998); allege Landry’s, not specifically
Todd does that he 970 S.W.2d 526 council; rather, employ 919 at 926-27. sues on behalf of the S.W.2d When we review, an of discretion standard of rights he asserts his as a member of that abuse factual tra we do not review issues under council. As an individual council member, sufficiency ditional and factual stan legal certainly legal authority has IKB Ltd. v. See, (Nigeria) dards. Indus. e.g., See file or defend lawsuit. Texas (Tex. 440, Corp., Pro-Line 938 S.W.2d Appellate Practice & Educ. Resource Ctr. 1997). Patterson, sufficiency and factual claims Legal (Tex.App.— S.W.2d error, independent grounds are not al 1995, denied); Austin writ Garza v. Gar though may weigh are factors they we cia, 421 (Tex.App. Corpus 785 S.W.2d — the trial court abused determining whether 1990, denied). Thus, Christi writ Todd has id. discretion. See capacity usurpation to sue the his power as a councilman. tempo applicant seeking An injunction rary probable must the establish City’s
We overrule Brown’s and first probable recovery injury. See cross-point. Corp. King, Resolution Trust v. Chair Inc., 546, (Tex.App.— S.W.2d Brown’s and the Second writ). 1992, Dist.] no [14 Cross-Point will applicant need not establish that he cross-point, In their second trial, prevail only that entitled at but he is contend the trial court erred preservation of the See quo. status injunction. granting temporary Todd’s Metcalfe, Walling v. Specifically, they that Todd offered argue (Tex.1993). evidence, alternative, or insuffi evidence, hearing cient at the on mo The trial court’s order found his by the injunction establishing irreparably injured tion for Todd temporary would if probable right recovery proba authority injunction loss of did his the First, we injury injunction did not not issue.7 consider whether ble issue. probable injury, con granting We reverse trial court’s of a Todd established harm, inju temporary injunction only sisting irreparable if the imminent record ry, adequate remedy a clear at law. shows abuse of discretion. See lack of Landry’s Oyster Motorsports, Inn T-N-T Inc. v. Hennes & Bar-Ke See Seafood mah, (Tex.App.— sey, Inc. v. 23-24 Wiggins, S.W.2d dism’d). At (Tex.App. pet. no Houston Dist.] Dist.] st [14th [1 — Houston writ). blush, authority Todd finding appropriate This is when first it seems lost his 1- arbitrarily promulgated trial court and unrea at moment Brown EO acts 8, and, therefore, already sonably, guiding without reference harm imminent. principals, misapplies when it occurred and the is not rules However, unless A 1-8 is without effect the law to facts. See id. trial court EO enforced, employees, who does not abuse its discretion when the enforced. Once order, can presumably will adhere support evidence tends to cause Milton, of sexual 948 not discriminate on basis alleged. action Munson limited Antonio orientation and therefore — San 1997,writ denied). Further, ability to act. Todd and the a trial court it is if it council undermined the moment does not abuse its discretion bases is employees, temporary injunction on evi effective because conflicting Tire, sexual or Inc. v. allowed discrimination based on Kepple, dence. See General immediate, irreparable Although irreparable inju- usurpation Todd also claims other injuries, injury, not need to address ry based on two the trial court we do City’s arguments they do injunction injuries granted temporary on or the based injunction. usurpation we alone. Because hold that *11 by unwillingness employees. sup ientation to enact This evidence tends to Thus, parallel rules. it is when the only port court’s that Todd has finding the trial authority. Therefore, order is enforced that Todd lost a of probable right recovery. By granting temporary injunction, a say we cannot the trial court abused its precluded usurpation city trial court of finding probable discretion Todd had power, power council’s and the of Todd as right recovery. council, a member of that which could not Brown and the also contend the by any subsequent have been undone deci injunction could not issue without Todd’s Usurpation sion of the trier of fact. is However, testimony. pre- the evidence prospect more than the injury; it is an proba- sented sufficed to establish Todd’s injury instantly upon that would result en injury probable right recovery. ble Thus, forcement of the executive order. such, testimony As Todd’s would not have injury is imminent. probable regarding added to evidence Next, we consider whether the injury. irreparable. Irreparable injury is we trial Because find court did may if damages be shown cannot be mea not its discretion in finding abuse by sured a certain pecuniary standard. probable injury Todd established a and a Risk Management,
See AIG Inc. v. Motel probable right recovery, find we L.P., Operating 960 S.W.2d granting appli- court did not err in Todd’s (Tex.App. Corpus pet.). no Christi — injunction. temporary cation for a Accord- legal remedy inadequate is ingly, we overrule and the Brown’s damages are difficult to calculate or their cross-point second and affirm the order of T-N-T, may award come too late. See trial court. S.W.2d at 24. Todd’s authority loss of compensable by monetary damages. AMIDEI, Justice, E. MAURICE Thus, irreparable Todd established harm dissenting rehearing. on motion for and no adequate remedy at law if the injunction did not issue. The trial court ability Todd had and the did not in finding abuse its discretion Todd through his suit to invoke the trial court’s probable injury. established subject-matter jurisdiction. Todd has We now controversy consider whether shown that a real exists be probable Todd established a right to recov tween him and the of Houston and An ery. applicant injunc for a temporary Mayor by Brown which can be determined tion only allege injunction need a cause action judicial declaration offer jurisdiction evidence that tends to sought. This cannot be affect right recover on the merits. party See James ed another to the suit such as Wall, (Tex.App.— deprived Hotze. The trial court was not writ). [14 Dist.] over Hotze’s suit on the basis Here, charter, city which was admitted If alleged standing.” of Hotze’s “lack of an exhibit subject-matter jurisdiction as for Brown and the City, Todd’s suit city establishes council at least it is then immaterial whether Hotze had approval power over non-discrimina standing. Prop. See Nationwide & Cas. McFarland, tion employees, argu rules and it Ins. v.Co. denied). ably gives council the to 491 writ — Dallas Nationwide,
promulgate them. the City Brown and insured McFarland was stipulated that injured Brown did not obtain coun when Mashewske caused insured’s approval prior him; cil enacting company Fi car to EO 1-8. fall on the insurance nally, City proffered Brown and the sued McFarland and for de Mashewske exhibit, clearly claratory judgment executive order as an and it that Mashewske was creates a non-discrimination person” policy; rule for not a “covered under the I although and Mashewske counter whether Hotze has McFarland declaration; and, opposite would hold claimed for the both had although company the insurance claimed I I respectfully dissent. would reverse have standing McFarland did not to assert *12 dismissing the trial Hotze for court’s order rights policy, under Mashewske’s lack of standing. court that the trial held since court suit, jurisdiction matter over the or lack standing McFarland’s deprive
could the court of
and McFarland’s counterclaim could be de
cided in the case. See id. my original
As I outlined dissent case, position in a better than
this Hotze is Todd because in as to he was ESCAMILLA, Appellant, Omar Santos volved and and refer voted initiative v. endum Todd did not. Hotze as a whereas ref regarding lawmaker initiative and and CITY LAREDO OF erendum have demonstrates would Independent United School in behalf of the other to sue District, Appellees. in that participants and voters referendum No. 04-99-00342-CV. powers the court’s remedial invoke behalf, declaration, and to obtain Texas, Appeals Court of injunction, prospec or some other form of Antonio. San tive which would inure his and the relief 15, 1999. Dec. and voter’s participants benefit. See Texas Bus. v. Texas Air Control Ass’n of
Bd„ (Tex.1993). 440, 447-48 possesses a law maker
Hotze’s status as general public
interest distinct from City’s Mayor actions through special injury.
Brown caused him some
By petition initiative signing the vot passed
ing proposition gives for the justiciable seeing
Hotze a
proposition is not subverted a void by Mayor Brown.
illegal executive order (Tex. Lanier,
Blum
1999); Tex. Glass (1951). Mayor Brown’s execu act, discretionary
tive order was not Mayor
he and through duty a ministerial to correct part and make the correction a order Records. Hotze is Official declaratory judgment to a
entitled require such correction.
mandamus
I Todd had agree do suit, this and if he has
capacity bring subject-matter jur-
standing to invoke court, it
isdiction trial is immaterial