Gilbert REYNA, Jr., Alfredo Ortiz, Jr., and Eliberto Hernandez, Appellants, v. The CITY OF WESLACO, Texas, et al., Appellees.
No. 13-95-328-CV
Court of Appeals of Texas, Corpus Christi
Feb. 27, 1997
944 S.W.2d 657
Libra Lange, Asst. Dist. Atty., Dallas, Matthew Paul, State‘s Atty., Austin, for State.
OPINION ON STATE‘S PETITION FOR DISCRETIONARY REVIEW
PER CURIAM.
Appellant was convicted of delivery of a controlled substance and the jury assessed punishment at twenty-five years. The court of appeals affirmed and reformed the judgment of conviction by deleting a deadly weapon finding. Jones v. State, 936 S.W.2d 32 (Tex.App.-San Antonio 1996).
We granted the State‘s petition to review the decision to reform the judgment. Appellant has died, however, and counsel has moved that the appeal be permanently abated. Under our precedents, the death of an appellant during the pendency of appeal deprives this Court and the courts of appeals of jurisdiction. Rheinlander v. State, 918 S.W.2d 527 (Tex.Cr.App.1996). Accordingly, the motion to abate is granted, the State‘s petition for discretionary review is dismissed and the Fourth Court of Appeals is directed to permanently abate the appeal of this cause.
Catherine L. Kyle, James Ludlum, Jr., Anthony G. Brocato, Ludlum & Ludlum, Austin, Darrell G. Noga, Robert M. Manley, Cooper, Aldous & Scully, Dallas, for appellees.
Before SEERDEN, C.J., and FEDERICO G. HINOJOSA, Jr. and YAÑEZ, JJ.
OPINION
YAÑEZ, Justice.
This is an appeal of a summary judgment order dismissing appellants’ civil rights claims against the City of Weslaco. By eight points of error, appellants challenge the trial court‘s finding as to the constitutionality of the City‘s policy regarding access to misdemeanor complaints and the judicial, prosecutorial, and qualified immunities granted to the municipal court judge and city attorney. We reverse and remand.
On separate occasions, the City of Weslaco municipal court denied Alfredo Ortiz, Jr, Gilbert Reyna, Jr., and Eliberto Hernandez, appellants, immediate access to the complaints charging them with class C misdemeanors, which were to be adjudicated at the municipal court. Ortiz was arrested on January 11, 1991. Despite efforts since mid-February 1991, his attorney was not provided a copy of the complaint by the municipal court until April 23, 1991, three days before Ortiz‘s trial. At trial, Ortiz was found guilty and assessed the maximum fine plus court costs. On May 8, 1991, Hernandez sought a copy of the complaint against him from the municipal court, pursuant to a summons he received the month before. The municipal court clerk explained that she could not give him a copy of the complaint. On May 31, 1991, the charge against Hernandez was dropped. On September 14, 1991, Reyna was arrested by city police without explanation or presentation of a warrant for his arrest. On September 16, 1991, Reyna appeared before the municipal judge and requested an explanation for his arrest and a copy of the complaint against him. The judge could not locate the complaint against Reyna. The judge, however, offered Reyna credit for his time served and a fine. Reyna paid the fine and left.
Ortiz, Reyna, and Hernandez sued the City of Weslaco and its municipal judge and city attorney in their official capacities under the Federal Civil Rights Act,
On appeal, appellants challenge only the dismissal of their claims for injunctive and declaratory relief under Section 1983, including attorney‘s fees, and the Texas Constitution. By their request for declaratory relief, appellants seek an announcement that the delay of their access to the complaints against them caused by the municipal judge and city attorney violated their rights under both the United States and Texas Constitutions and under the Texas Code of Criminal Procedure. By the request for “injunctive and supplemental relief” in their petition, appellants seek a permanent injunction against the alleged unconstitutional practices by City of Weslaco, an order directing the City to insure that municipal court personnel are properly trained and that the city attorney and his staff carry out their functions in a constitutional manner, and damages to remedy past and ongoing violations against appellants.
Because appellants’ seventh point of error addresses the substance of their claims against appellees, we address it before the other points, which challenge only the immunities defenses. By point of error seven, appellants claim the trial court erred in finding no material issue of fact concerning the existence of an official custom or policy that denied appellants their constitutional rights. In their reply brief, appellees assert that appellants lack standing to assert any violations of their constitutional rights.
Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment in its favor as a matter of law.
A municipality may be liable under Section 1983 if its policy or custom caused a constitutional injury. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 165 (1993). The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to notice of the nature and cause of an accusation against them.
In viewing the summary judgment evidence, we first recognize that neither the City of Weslaco, the municipal judge, nor the city attorney disputed that appellants were denied immediate access to the instruments charging them with class C misdemeanors, the complaints. The municipal judge maintained that it is the policy of the City to provide copies of complaints to defendants and that the City has no official policy or custom of denying citizens charged with misdemeanor offenses their constitutional rights. The evidence indicated, however, that the municipal court, as a policy, does not include complaints with summonses to the accused, but rather notifies the accused of the charges against them orally once the accused appear in court. The city attorney admitted to instructing the municipal court that attorneys seeking complaints for defendant clients should be referred to his office so that he may “deal with them there.” As matter or record, there was a three-month delay by the municipal court or prosecutor in making a copy of a complaint available to the defense attorney requesting it, and also an instance in which the municipal judge could produce no record of an accused‘s arrest when he appeared before the judge. In their respective affidavits, the judge and prosecutor state that at all times relevant to this action they were acting in good faith. These statements are legal conclusions and have no probative force. Because the City‘s standing claim was not presented to the trial court in their motion for summary judgment, it may not be considered in assessing the merits of the motion on appeal. McKnight v. Riddle & Brown, P.C., 877 S.W.2d 59, 62 (Tex. App.-Tyler 1994, writ denied). We therefore hold that the trial court erred in finding no issue of material fact in relation to appellees’ claim that they followed no custom or policy that denied appellants their constitutional rights. Point of error seven is sustained.
Appellant‘s first four points of error challenge the absolute immunities effectively granted to appellees by the trial court. By points of error one and two, appellants claim the trial court erred in granting absolute immunity to the municipal judge. Appellants argue that judges may be sued in their official capacity for injunctive and declaratory relief under
Actions against officials in their official capacities effectively are actions against the governmental unit of which the officials are employees or agents and not against the individuals personally, provided the government is given notice. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). In official-capacity actions, therefore, the only immunities available are forms of sovereign immunity. Id. at 166-67. Judges are not immune from Section 1983 actions for declaratory or injunctive relief. Holloway v. Walker, 765 F.2d 517, 525 (5th Cir.), cert. denied, 474 U.S. 1037 (1985), cert. denied, 479 U.S. 984 (1986). Judicial immunity, in fact, is not a bar to prospective injunctive relief in a Section 1983 action against a judicial officer acting in his official capacity. Pulliam v. Allen, 466 U.S. 522, 541 (1984). Prosecutors also are not immune from Section 1983 actions for declaratory or injunctive relief. Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U.S. 719, 736-37 (1980).
By points of five and six, appellants claim the trial court erred in granting qualified immunity to the municipal judge and city prosecutor. Appellants argue that qualified immunity is an affirmative defense not available to officials sued in their official capacities. Appellants argue that even if qualified immunity were available to the municipal judge and city prosecutor, the two officials failed to show their entitlement to this defense. Qualified immunity is available only to officials sued in their personal capacities. Graham, 473 U.S. at 166-67. The record indicates that both the judge and prosecutor were sued in their official capacities. We hold that the trial court erred in granting qualified immunity to the municipal judge and city prosecutor. Points of error five and six are sustained.
We therefore will reverse the judgment of the trial court and remand for a new trial. We recognize, nevertheless, that the dissenting opinion would affirm the trial court‘s summary judgment order on the grounds that the controversy here is nonjusticiable. The dissenting opinion maintains that because charges are no longer pending against appellants and there is no realistic possibility of future injury to appellants, there is no live controversy between them and the City; hence this controversy is moot and neither declaratory nor injunctive relief may be granted. We are reluctant to reach this conclusion.
Under classic mootness doctrine, a justiciable controversy is definite and concrete, touching the legal relations of parties having adverse legal interests. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937). A controversy between the parties therefore must exist at every stage of the legal proceedings, including the appeal. United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). Cases may be mooted when the relevant law changes, United States v. Alaska S.S. Co., 253 U.S. 113, 115-16 (1920), or when allegedly wrongful behavior has passed and could not be expected to recur, Securities & Exch. Comm‘n. v. Medical Comm. for Human Rights, 404 U.S. 403, 406 (1972). One exception to the general mootness rule, however, is a controversy “capable of repetition yet evading review,” by which a reasonable expectation or demonstrable probability that the “same controversy will recure involving the same complaining party” will preclude mootness. Murphy v. Hunt, 455 U.S. 478, 482 (1982). The dissenting opinion correctly points out that the injustice suffered by appellants already has passed. We would add that appellants seek only declaratory and injunctive relief, not compensatory damages. There are, nevertheless, three reasons why we cannot conclude that this controversy is moot on the basis of these facts alone.
First, recognizing that violations of federal constitutional rights were alleged here and not disputed, we find that the United States Supreme Court at times has adjudicated cases that easily could have been considered moot but, because they were adjudicated, impacted the parties’ legal relationship to each other. E.g., Roe v. Wade, 410 U.S. 113, 125 (1973) (finding that the Texas abortion law was unconstitutional despite the case having reached the district court after Roe no longer was pregnant); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125 (1974) (holding that an employer‘s request for declaratory relief that reached the trial court after the strike ended was not moot because the employees could go on strike again). If the allegations pleaded by appellants are true, adjudication of this case would vindicate the rights denied to appellants and alter the unconstitutional mu
Second, the claim that a litigant lacks a personal stake in the outcome of a controversy may be understood simply as challenge to his standing to sue; but in addressing whether a litigant has a personal stake in the outcome of a controversy, the U.S. Supreme Court at times has asked simply whether the litigant “personally has suffered some actual or threatened injury traceable to the challenged action that likely will be redressed by a favorable decision. E.g., Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41 (1976); see also Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979). If we were to apply this test to the case at hand, the answers to this question would be “yes.”
Third, we see an important factual difference between cases with analogous facts that were adjudged moot by federal courts and the case at bar. In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), for example, Lyons complained that after being stopped for a traffic or vehicle code violation and offering no resistance or provocation, Los Angeles police officers seized him and applied a “chokehold,” rendering him unconscious and damaging his larynx. Lyons sued the City of Los Angeles and four police officers for damages and injunctive and declaratory relief under
In the case at bar, as a matter of record, the Weslaco municipal court, on three separate occasions, denied three persons prompt access to the instruments charging them with a criminal offense. For the limited purposes of a review of summary judgment order dismissing appellants’ claims, this alone constitutes evidence that the denial of access to the complaints occurred pursuant to some official policy and that any person charged with a class C misdemeanor in the City of Weslaco can expect not to be given prompt access to the complaint against them. Even so, also on record is a statement by the municipal court judge that complaints are not routinely mailed to suspects with the summonses and an admission by the city attorney that he instructed the municipal court to direct persons seeking copies of their complaints to his office so that he may “deal with them there.” If complete evidence regarding the municipal
We reverse the judgment of the trial court and remand for a new trial.
SEERDEN, C.J., dissents.
SEERDEN, Chief Justice, dissenting.
I respectfully dissent.
Appellants seek recovery in the form of declaratory and injunctive relief for past-violations of their constitutional rights. In my opinion, the facts of this case do not present a justiciable controversy. Therefore, neither we nor the district court have jurisdiction to grant the requested relief.1
Courts are created solely for “judicial determination of presently existing disputes between parties in which effective judgment can be rendered.” Brownsville Indep. Sch. Dist. Bd. Of Trustees v. Brownsville Herald, 831 S.W.2d 537, 538-39 (Tex.App.-Corpus Christi 1992, no writ). As a general proposition, before a court may address the merits of any case, the court must have jurisdiction over the party or the property subject to the suit, jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and capacity to act as a court. State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex.1994). For a controversy to be justiciable, there must be a real controversy between the parties that will be actually resolved by the judicial relief sought. Id. (citing Texas Ass‘n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993)).
Appellants bring their claims for relief under
The Uniform Declaratory Judgments Act provides that “a court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”
In this case, appellants allege that they have been injured by appellees’ past conduct. However, there is currently no “controversy” between the parties. In fact, there are no charges pending against any of the three appellants. The remote possibility that a future injury may happen is not sufficient to satisfy the actual controversy requirement for declaratory judgments. City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983); see also Camarena v. Texas Employment Com‘n, 754 S.W.2d 149, 151 (Tex.1988) (district courts, under our Constitution, do not give advice or decide cases upon speculative, hypothetical or contingent situations). At this point, a declaration that appellees’ past conduct violated appellants’ constitutional rights would be nothing more than a “gratuitous comment without any force or effect.” Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir.1985); see also Harkins, 907 S.W.2d at 56 (Texas courts have powers to render declaratory judgment when judgment would serve a useful purpose).
I would reach a similar holding regarding appellants’ claims for injunctive relief. The injury underlying a claim for injunctive relief must be actual and substantial, or a real, affirmative prospect of an actual and substantial injury. Brazoria County Appraisal Dist. v. Notlef, Inc., 721 S.W.2d 391, 393 (Tex.App.-Corpus Christi 1986, no writ); Parkem Indus. Serv., Inc. v. Garton, 619 S.W.2d 428, 430 (Tex.Civ.App.-Amarillo 1981, no writ). An injunction will not issue to prevent merely speculative harm. See, e.g., Lyons, 461 U.S. at 112; Camarena, 754 S.W.2d at 151. Again, the remote possibility that appellants may at some time in the future be charged with a Class C Misdemeanor and be subject to appellees’ alleged unconstitutional conduct is not sufficient to justify injunctive relief. See Morales, 869 S.W.2d at 947 (an injunction will not issue unless it is shown that the respondent will engage in the activity enjoined); see also Frey v. DeCordova Bend Estates Owners Ass‘n, 647 S.W.2d 246, 248 (Tex.1983) (holding that the fear or apprehension of the possibility of injury is not a basis for injunctive relief); Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961) (explaining that injunction should not issue on mere surmise of injury); Transport Co. v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953) (requiring showing of a “probable injury” if respondent not restrained).
Accordingly, because there is currently no justiciable controversy between the parties involved, neither this Court nor the trial court has jurisdiction to render the relief sought. Therefore, I would affirm the summary judgment as granted by the trial court.