Bonita Odutayo D/B/A Samaritan Park & Ride, L.L.C. v. City of Houston ( 2013 )

Opinion issued April 18, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00132-CV
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BONITA ODUTAYO D/B/A SAMARITAN PARK & RIDE, L.L.C.,
Appellant
V.
CITY OF HOUSTON, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Case No. 2011-60424
MEMORANDUM OPINION
Appellant, Bonita Odutayo, doing business as Samaritan Park & Ride,
L.L.C. (“Samaritan”), challenges the trial court’s order granting the plea to the
jurisdiction of appellee, the City of Houston (“the City”), in her suit against the
City for declaratory relief, injunctive relief, and violations of the Equal Protection
Clause1 and the Due Process Clause2 of the Texas Constitution. In three issues,
Odutayo contends that the trial court erred in granting the City’s plea to the
jurisdiction and not allowing her the opportunity to replead her case and cure any
jurisdictional defects.
We affirm.
Background
In her first amended “Application for Temporary and Permanent
Injunction,” Odutayo alleges that Samaritan leases parking spaces and golf carts at
8800 South Main Street to customers attending events at Reliant Stadium.
Samaritan had continuously engaged in this activity from 2002 until October 2,
2011, when one of Samaritan’s golf carts was “stopped and ticketed” by a Houston
Police Department (“HPD”) officer who “threatened” to arrest the driver and
impound the golf cart. The City prohibited Samaritan’s leasing of golf carts “by
calling them taxis and/or citing them for failure to be registered or inspected.” In
her pleading, however, Odutayo asserts that, under the Texas Transportation Code,
golf carts are not required to be registered or inspected. Thus, as a result of the
City’s “discriminatory and unlawful act,” Samaritan “lost an undeterminable
1
TEX. CONST. art. I, § 3.
2
TEX. CONST. art. I, § 19.
2
amount of money” and “suffered irreparable injury or serious impairments in the
use of its personal property,” even though other businesses were allowed “to utilize
the public highway of the state with [their] golf carts.” Asserting that the City’s
actions violated her rights under the Equal Protection and Due Process clauses of
the Texas Constitution, Odutayo asks that the City be enjoined from prohibiting
her leasing of golf carts. She also seeks a declaration that the provisions of the
Texas Transportation Code relating to golf carts 3 are unconstitutional as applied to
her.
In its answer, the City generally denies Odutayo’s allegations and asserts
that it is entitled to governmental immunity regarding all of Odutayo’s claims and
the trial court has no subject-matter jurisdiction to consider claims “relating to
pending criminal actions.” The City asserts that Odutayo’s damages, if any,
resulted solely from her criminal conduct, she failed to mitigate her damages, the
City’s actions are within the valid exercise of its police power, and Odutayo’s
claims lack ripeness, were fraudulently made in order to confer jurisdiction, and
are barred by res judicata and collateral estoppel.
In its plea to the jurisdiction, the City asserted that Odutayo had filed a prior
suit, asking the trial court to declare that article 46 of the City’s Code of
Ordinances, which regulates and requires permits and licenses for “low-speed
3
See TEX. TRANSP. CODE ANN. §§ 551.402, 551.403(a)(3) (Vernon 2011).
3
shuttles,” does not apply to golf carts.4 In that suit, the City filed a “Motion to
Dismiss for Want of Jurisdiction and as Moot,” in which it stipulated that the
ordinances in question did not apply to golf carts and moved to dismiss Odutayo’s
suit because there was no real controversy between the parties. The City also
asserted that any opinion would be advisory, Odutayo’s claim for injunctive relief
was moot, and Odutayo did not plead any facts supporting her constitutional
claims. In its reply to Odutayo’s response to its motion to dismiss, the City further
argued that Samaritan’s golf-cart operation violated the Texas Transportation
Code. 5 After a hearing, the trial court granted the City’s motion to dismiss
Odutayo’s first suit because, “among other reasons,” the City had stipulated that
the ordinance in question did not apply to golf carts. In its instant plea, the City
asserts that the “only difference” between Odutayo’s first suit and her present suit
is that she now challenges the constitutionality of the pertinent Texas
Transportation Code provisions. However, the City asserts that it retains
“sovereign immunity” against “actions taken,” or a declaration of “rights,” under
the Texas Transportation Code. It also asserts that the proper defendant in the
instant suit is the State of Texas, not the City. 6
4
HOUSTON, TEX., CODE §§ 46.371–46.426 (2012).
5
See TEX. TRANP. CODE ANN. §§ 551.402, 551.403(a)(3).
6
Odutayo non-suited her claims against the State of Texas.
4
In her response to the City’s plea, Odutayo asserts that the City “does not
restrict other drivers from the use of their golf carts on public streets” but “only
restricts” Samaritan from doing so. Unlike her first suit, Odutayo’s instant suit “is
not based upon Houston issuing citations” under its ordinances but rather its
“characterization of golf carts as being illegal” under the Texas Transportation
Code and its “selective enforcement” of that statute. Odutayo asserts that
governmental immunity “does not bar suit for injunctive relief against a
governmental entity to remedy violations of the state constitution.” And Odutayo
attached to her response photographs of other people allegedly operating golf carts
on Main Street.
Odutayo also attached to her response her affidavit, in which she testified
that Samaritan leased golf carts to customers “in a manner consistent” with the
Transportation Code, the golf carts were insured and all “equipped with
headlamps, taillamps, reflectors, parking brakes, seat belts and mirrors.” She
further stated that HPD Officer R. Prince cited the golf-cart drivers “for no
registration or inspection sticker” and “referenced Texas House Bill 2553 as his
legal authority.” 7 She attached to her response the affidavits of Keith Smith and
7
Texas House Bill 2553 includes provisions relating to golf carts, which are
codified at sections 551.401 through 551.405 of the Texas Transportation Code.
Tex. H.B. 2553, 81st Leg., R.S. (2009).
5
Okunlola Odutayo, who both testified that they received citations for driving the
golf carts that they had leased from Samaritan.
After a hearing, the trial court sustained the City’s plea and dismissed
Odutayo’s suit for want of jurisdiction.
Plea to the Jurisdiction
In her first issue, Odutayo argues that the trial court erred in granting the
City’s plea to the jurisdiction because her suit “against the City of Houston police
officers” is a “challenge to the discriminatory enforcement” of the pertinent Texas
Transportation Code provisions. See TEX. TRANSP. CODE ANN. §§ 551.402,
551.403(a)(3) (Vernon 2011). She asserts that her constitutional claims “are still
viable and deserve to be heard” regardless of whether the City has immunity8 for
her claim under the Texas Uniform Declaratory Judgment Act. See TEX. CIV.
PRAC. & REM. CODE ANN. §§ 37.001–37.011 (Vernon 2008).
In a suit against a governmental unit, the plaintiff must affirmatively
demonstrate the court’s subject-matter jurisdiction by alleging a valid waiver of
immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.
8
Both parties state that the City is asserting sovereign immunity in this case.
Although the terms “sovereign immunity” and “governmental immunity” are often
used interchangeably, sovereign immunity “extends to various divisions of state
government, including agencies, boards, hospitals, and universities,” while
governmental immunity “protects political subdivisions of the State, including
counties, cities, and school districts.” See Ben Bolt–Palito Blanco Consol. Indep.
Sch. Dist. v. Tex. Political Subdivisions Property/Casualty Joint Self–Insurance
Fund, 212 S.W.3d 320, 324 (Tex. 2006).
6
2003). To determine whether the plaintiff has met that burden, we consider the
facts alleged by the plaintiff and, to the extent that it is relevant to the jurisdictional
issue, the evidence submitted by the parties. Id. (quoting Tex. Natural Res.
Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 1993)). “[I]f the
pleadings affirmatively negate the existence of jurisdiction, then a plea to the
jurisdiction may be granted without allowing the plaintiff an opportunity to
amend.” County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Because
immunity from suit defeats a trial court’s subject-matter jurisdiction, immunity
from suit may properly be asserted in a plea to the jurisdiction. See Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004).
The State’s sovereign immunity extends to various divisions of state
government, including agencies, boards, hospitals, and universities. Ben Bolt-
Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions
Property/Casualty Joint Self-Insurance Fund, 212 S.W.3d 320, 324 (Tex. 2006);
Tooke v. City of Mexia, 197 S.W.3d 325, 331 n.11 (Tex. 2006). The appurtenant
common-law doctrine of governmental immunity similarly protects political
subdivisions of the State, including counties, cities, and school districts. Ben Bolt-
Palito, 212 S.W.3d at 324; see also Harris County v. Sykes, 136 S.W.3d 635, 638
(Tex. 2004). A political subdivision enjoys governmental immunity from suit to
7
the extent that immunity has not been abrogated by the Legislature. See Tex.
Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 853 (Tex. 2002).
Constitutional Claims
In her petition, Odutayo asserts that the pertinent Texas Transportation Code
provisions are “unconstitutional as applied [to her] due to selective enforcement”
under the Equal Protection Clause and the Due Process Clause. See TEX. CONST.
art. I, §§ 3,19. Texas law generally does not shield state officials from suits for
equitable relief for a violation of constitutional rights. See City of El Paso v.
Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009) (explaining that State has waived
sovereign immunity for suits seeking declarations regarding validity of statutes);
City of Elsa v. M.A.L., 226 S.W.3d 390, 391–92 (Tex. 2007) (concluding that suit
for injunctive relief stemming from alleged constitutional violations may be filed
against governmental entity); City of Beaumont v. Bouillion, 896 S.W.2d 143, 149
(Tex. 1995) (distinguishing between suits seeking to declare statute
unconstitutional and suits seeking damages as remedy for allegedly
unconstitutional act and concluding that only second type of suit is impermissible).
However, the waiver from immunity exists only if the plaintiff has pleaded a viable
constitutional claim. Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011);
see also City of Houston v. Johnson, 353 S.W.3d 499, 504 (Tex. App.—Houston
[14th Dist.], pet. denied) (“[I]f the plaintiff fails to plead a viable claim, a
8
governmental defendant remains immune from suit for alleged equal-protection
violations.”).
An equal-protection challenge under the state constitution is analyzed in the
same way as those asserted under the federal constitution. Bell v. Low Income
Women of Tex., 95 S.W.3d 253, 266 (Tex. 2002). Like the federal constitution, the
Equal Protection Clause of the Texas Constitution directs governmental actors to
treat all similarly situated persons alike. Sanders v. Palunsky, 36 S.W.3d 222,
224–25 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (citing City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3253–54 (1985)).
A claim of discriminatory or selective enforcement is based on the
constitutional guarantee of equal protection under the law. TEX. CONST. art. I, § 3;
see generally Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064 (1886). To
establish a selective enforcement claim, a plaintiff must show that she has been
singled out for prosecution while others similarly situated and committing the same
acts have not. Combs v. STP Nuclear Operating Co., 239 S.W.3d 264, 275 (Tex.
App.—Austin 2007, pet. denied). It is not sufficient, however, to show that the
law has been enforced against some and not others. State v. Malone Serv. Co., 829
S.W.2d 763, 766 (Tex. 1992); Combs, 239 S.W.3d at 275. The plaintiff must also
show that the governmental entity has purposefully discriminated on the basis of
such impermissible considerations as race, religion, or the desire to prevent the
9
exercise of constitutional rights. Malone, 829 S.W.2d at 766; Combs, 239 S.W.3d
at 275.
In order to bring a due-process claim, the plaintiff must assert a liberty or
property interest that is protected by article I, section 19 of the Texas Constitution.
See Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d 666, 671
(Tex. App.—Houston [14th Dist.] 2006, pet. denied) (“The Due Process Clause is
only activated when there is some substantial liberty or property interest which is
deserving of procedural protections.”). If the plaintiff does not assert a protected
interest, the trial court lacks jurisdiction over the suit. See Nat’l Collegiate Athletic
Ass’n v. Yeo, 171 S.W.3d 863, 870 (Tex. 2005) (holding plaintiff “asserted no
interests protected by article I, section 19 of the Texas Constitution” and her claims
had to be dismissed); Stafford Mun. Sch. Dist. v. L.P., 64 S.W.3d 559, 564 (Tex.
App.—Houston [14th Dist.] 2001, no pet.) (holding trial court lacked jurisdiction
over due-process claim in absence of “a constitutionally protected property or
liberty interest”). “To have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have more than a
unilateral expectation of it. He must, instead, have a legitimate claim of
entitlement to it.” Yeo, 171 S.W.3d at 870 n.19 (quoting Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972)).
10
Here, in her first amended petition, Odutayo argues that the City applied the
Texas Transportation Code against her “in an unconstitutional and discriminatory
way” because, although the City “prohibited the use of Samaritan’s golf carts,” it
allowed “other businesses” to do the same. However, at no point in her petition
does Odutayo allege that the City has purposefully discriminated against her on the
basis of impermissible considerations such as race, religion, or the desire to
prevent the exercise of constitutional rights, as required to plead a claim for
selective enforcement under the Equal Protection Clause. Thus, we conclude that
Odutayo has failed to plead an equal-protection claim which would give rise to a
waiver of governmental immunity by the City. See Long v. Tanner, 170 S.W.3d
752, 755 (Tex. App.—Waco 2005, pet. denied) (holding that plaintiff’s failure to
“assign any constitutionally impermissible bases” for decision to arrest him but not
others was “fatal to his equal protection claim”).
Odutayo also pleads for relief under the Due Process Clause, asserting that
“[t]he due process rights that have been violated are both procedural and
substantive.” However, Odutayo fails to plead what specific property right or
liberty interest, if any, is involved, or what process is due to her. Although she
asserts that she “owns the property and is the provider of services,” it is undisputed
that the City did not seize her golf carts; rather, it ticketed Samaritan’s customers.
Because Odutayo has failed to plead what specific property right or liberty interest
11
she had been deprived of, or what procedure she is entitled to, we conclude that she
has failed to plead a due-process claim. See, e.g., City of Dallas v. Saucedo-Falls,
268 S.W.3d 653, 663–64 (Tex. App.—Dallas 2008, pet. denied) (holding pleadings
insufficient to assert due-process claim where it did not allege what process
plaintiffs were due, how the City’s action was arbitrary or capricious, or how the
City denied plaintiffs opportunity to be heard); see also Tex. St. Bd. of Nursing v.
Pedraza, No. 13-11-00068-CV, 2012 WL 3792100, at *4 (Tex. App.—Corpus
Christi Aug. 31, 2012, pet. filed) (holding plaintiff did not invoke trial court’s
jurisdiction regarding her due-process claim because pleadings did not allege
specific property right or interest or what process was due).
Declaratory Judgment Act
The purpose of the Uniform Declaratory Judgments Act (UDJA) is to
establish existing “rights, status, and other legal relations whether or not further
relief is or could be claimed.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.003(a)
(Vernon 2008). Section 37.004(a) specifically provides as follows:
A person interested under a deed, will, written contract, or other
writings constituting a contract or whose rights, status, or other legal
relations are affected by a statute, municipal ordinance, contract, or
franchise may have determined any question of construction or
validity arising under the instrument, statute, ordinance, contract, or
franchise and obtain a declaration of rights, status, or other legal
relations thereunder.
12
Id. § 37.004(a) (Vernon 2008). The UDJA does not grant jurisdiction; it provides a
procedural device for deciding cases already within a court’s jurisdiction.
Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996). Consequently, immunity
will bar an otherwise proper UDJA claim that has the effect of establishing a right
to relief against the State for which the legislature has not waived immunity. Tex.
Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011).
The UDJA waives governmental immunity (1) for claims challenging the
validity of an ordinance or statute and (2) for ultra vires claims against state
officials who allegedly act without legal or statutory authority or who fail to
perform a purely ministerial act. See City of El Paso v. Heinrich, 284 S.W.3d 366,
372–73 & n.6 (Tex. 2009); IT–Davy, 74 S.W.3d at 855. The UDJA further
provides that,
In any proceeding that involves the validity of a municipal ordinance
or franchise, the municipality must be made a party and is entitled to
be heard, and if the statute, ordinance, or franchise is alleged to be
unconstitutional, the attorney general of the state must also be served
with a copy of the proceeding and is entitled to be heard.
TEX. CIV. PRAC. & REM.CODE ANN. § 37.006(b) (Vernon 2008).
As stated above, Odutayo failed to properly assert a constitutional challenge
of the statute in question under either the Due Process Clause or the Equal
Protection Clause. We further note that although Odutayo appears to challenge the
validity of certain sections of the Texas Transportation Code, she brings the
13
present action against only the City; she did not join the Texas Attorney General as
required by the DJA. 9 See id.
And, to the extent that Odutayo challenges the actions of state officials under
the Texas Transportation Code, the Texas Supreme Court has explained that such
actions are properly made as ultra vires claims to require state officials to comply
with statutory or constitutional provisions. See Tex. Dep’t of Transp. v. Sefzik, 355
S.W.3d 618, 621–22 (Tex. 2011); Heinrich, 284 S.W.3d at 372. In ultra vires
suits, “the governmental entities themselves—as opposed to their officers in their
official capacity—remain immune from suit.” Heinrich, 284 S.W.3d at 372–73.
Again, here, Odutayo brings the instant suit only against the City and not any
government officers. Thus, to the extent that her pleading raises any ultra vires
claims, the City retains governmental immunity for those claims.
We conclude that Odutayo has not pleaded a cause of action for which the
trial court retained jurisdiction. Accordingly, we hold that the trial court did not
err in granting the City’s plea to the jurisdiction.
We overrule Odutayo’s first issue.
9
Odutayo, in fact, non-suited her claims against the State of Texas in the instant
suit.
14
Opportunity to Amend
In her second and third issues, Odutayo argues that the trial court erred in
not allowing her an opportunity to amend her pleadings because any alleged
defects in her pleadings are curable.
A plaintiff generally deserves a reasonable opportunity to amend defective
pleadings unless the pleadings demonstrate incurable defects or negate the
existence of jurisdiction. Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,
839 (Tex. 2007). If, however, the pleadings affirmatively negate the existence of
jurisdiction, then a plea to the jurisdiction may be granted without allowing the
plaintiff an opportunity to replead. Id.
Here, Odutayo asks only to replead her claim under the UDJA as an ultra
vires claim, presumably to add government officers to the suit. However, even
were she able to add government officials to the suit, she would still have to assert
the same defective equal-protection and due-process claims against them.
Accordingly, we conclude that an amended petition could not have cured the
jurisdictional defects in Odutayo’s petition. See, e.g., Edwards v. City of Tomball,
343 S.W.3d 213, 223 (Tex. App.—Houston [14th Dist] 2011, no pet.).
We overrule Odutayo’s second and third issues.
15
Conclusion
We affirm the order of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
16