CAUSE NO. 2013-75301 JACK PIDGEON AND LARRY HICKS, PLAINTIFFS, V. MAYOR ANNISE PARKER AND CITY OF HOUSTON, DEFENDANTS. IN THE DISTRICT COURT HARRIS COUNTY, TEXAS 310TH JUDICIAL DISTRICT Defendants Motion to Dissolve Temporary Restraining Order TO THE HONORABLE JUDGE: Defendants Annise Parker and the City of Houston ( the City ), (collectively referred to as Defendants ), move to dissolve Plaintiffs Temporary Restraining Order and in support thereof, Defendants show the Court as follows: I. SUMMARY 1. On November 20, 2013 Mayor Annise Parker announced the City of Houston would begin offering benefits to all legally married spouses of city employees and that this policy would apply to all same-sex couples who had been married in a state where same-sex marriage was legal. Employees who qualified and wanted to add their same-sex spouse to their medical, dental, vision and life insurance and wanted to increase their contribution to the Healthcare Flexible Spending Account were asked to do so by Monday, December 23, 2013. To date, three employees have requested these benefits. 1
2. Plaintiffs Jack Pidgeon and Larry Hicks assert in their Original Petition, Application for Temporary Restraining Order, Application for Temporary Injunction and Application for Permanent Injunction ( TRO ), that they are individuals residing within the boundaries of the City of Houston. 3. Late in the afternoon of December 17, 2013, Plaintiffs filed the TRO in the Harris County District Clerk s office. The case was then assigned to the family district court, the 310 th Judicial District Court of Harris County. Within an hour of the case being filed and assigned a court, Plaintiffs had secured a hearing and an order on their TRO filed without notice (Plaintiffs reference that their TRO is filed without notice in paragraph 10.3). Although Plaintiffs were well aware that Defendants are represented by counsel, Plaintiffs failed to call anyone at the City Attorney s office to inform them of the hearing on the TRO, or the location of the hearing. 1 Instead, two emails were sent, one at 4:56 and the next at 4:58 from opposing counsel s office notifying the City Attorney that the case had been assigned to the 310th Judicial District Court and that a hearing was scheduled immediately. 2 Mr. Feldman was not available to read these emails prior to the hearing. Neither did the Court attempt to call Mr. Feldman to notify him of the hearing or allow him to participate by phone. The Court signed Plaintiffs ex parte TRO less than 20 minutes later at 5:13 p.m. 1 The City Legal Department attends TRO hearings on a regular basis in district court, and all of these are heard by the ancillary judge. Not only was the City was not informed that the TRO hearing was going to be held, it was not informed the hearing was going to be held in the 310 th Court itself. 2 Emails from the Woodfill Law Firm dated December 17, 2014 and time stamped 4:56 p.m. and 4:58 p.m. are attached hereto and incorporated as Exhibit A. 2
4. By their TRO, obtained ex parte without any notice whatsoever to the Mayor or the City, Plaintiffs have succeeded in obtaining an order that purports to prevent Mayor Parker and the City from providing benefits to same-sex spouses of legally married couples. Each day the TRO remains in effect, the City is forced to deny benefits legally available to individuals pursuant to its Charter. Not only did Plaintiffs make material misrepresentations to the Court to gain the TRO, without notice, but Plaintiffs TRO signed by the Court is void. II. PLAINTIFFS TRO IS VOID ON ITS FACE 5. Rule 680 of the Texas Rules of Civil Procedure states: Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after signing, not to exceed fourteen days... Plaintiffs order is void for the following reasons: (1) the injury is not defined; (2) the order does not state why the injury is irreparable; (3) the order does not state why it was granted without notice; (4) the order does not have an expiration date; (5) the order is in effect until the hearing date of January 6, 2014. 6. The injury is not defined: Plaintiffs TRO generally states only that they have claims of statutory and constitutional injury and violation of the City of Houston s Charter. The order does not define which statutes, constitutional provisions or chapters of Houston s Charter under which Plaintiffs have been injured. 3
7. The order does not state why the injury is irreparable: Plaintiffs TRO is conclusory as it states, without factual support, that Plaintiffs have shown imminent harm and possible irreparable injury. There are absolutely no facts recited in the order to support these findings. The order is conclusory in nature as it does not specify any specific grounds for which it was granted. The order fails to state even one reason as to why the Mayor s order presented any threat or injury to Plaintiffs. 8. The order does not state why it was granted without notice: Plaintiffs TRO does not mention that it was granted without notice, despite this fact being stated in Plaintiffs Petition, and fails to state any reason why the order was granted without notice. 9. The order does not have an expiration date: A TRO must expressly state the date it expires or the order is void. In re Spartan Consulting & Safety, L.L.C., No. 11-13-00272-CV, 2013 WL 5522299, at *1 (Tex. App. Eastland Oct. 3, 2013, orig. proceeding); Tex. R. Civ. P. 680. The TRO granted Plaintiffs does not expressly state the date it expires. Therefore, it is void. Id. 10. The hearing date given in the order does not fall within the deadline allowed under Texas law: Plaintiffs TRO stated that The temporary injunction is effective immediately and shall continue in force and effect until further order of this Court. The order then sets the next hearing in this matter for January 6, 2014 at 4
9:00 a.m. This date is outside the fourteen (14) days a TRO expires as operation of law under Rule 680. 11. Conclusion: the order is void: This Court should dissolve Plaintiffs TRO because the order is void. The order clearly violates four essential provisions of Rule 680 of the Texas Rules of Civil Procedure. An order that fails to fulfill any of these requirements is void. In re Office of the Atty. Gen., 257 S.W.3d 695, 697 (Tex. 2008). III. PLAINTIFFS PLEADINGS ARE INSUFFICIENT TO SUPPORT THE TRO 12. Plaintiffs Petition for TRO ( Petition) fails to state even one piece of factual evidence to support any of their allegations. Plaintiffs merely state and restate that they have suffered deprivations of their constitutional rights and that the Mayor s Order violates the Texas Family Code and Texas Constitution. However, these statements are not factual. Instead, they are merely conclusory allegations. Plaintiffs then move on to arguing they are likely to suffer imminent and irreparable injury, yet provide no proof as to how this will occur. IV. THE TRO DISRUPTS THE STATUS QUO 13. Plaintiffs TRO disrupts the status quo, rather than maintains it. The sole issue before a trial court in a temporary restraining order and injunction hearing is whether the applicant may preserve the status quo, pending trial on the merits. In re Newton, 146 S.W.3d 648, 651 (Tex. 2004); Davis v. Huey, 571 S.W.2d 859, 862 5
(Tex. 1978); T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 21 (Tex. App. Houston [1st Dist.] 1998, pet. dism d). The City made spousal benefits available to legally married couples on November 20, 2013. To date, three individuals have enrolled in these programs. The granting of the TRO at this time disrupts the status quo of the City s benefit program. 14. Defendants pray that this court dissolve the Temporary Restraining Order because the order entered by the Court is void. Respectfully submitted, DAVID M. FELDMAN City Attorney LYNETTE K. FONS First Assistant City Attorney JUDITH L. RAMSEY Chief, General Litigation Section /s/ Darah Eckert Darah Eckert Senior Assistant City Attorney SBN 24007141 John B. Wallace Senior Assistant City Attorney SBN 20769750 CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby Street Houston, Texas 77002 832.393.6454 (telephone) 832.393.6259 (facsimile) john.wallace@houstontx.gov Attorneys for Petitioners Annise D. Parker and The City of Houston 6
Certificate of Service I hereby certify that on this 19th day of December, 2013, a true and correct copy of the foregoing has been served on counsel below via e-service and/or facsimile. Jared R. Woodfill Robert Talton WOODFILL LAW FIRM, PC River Oaks Green 3131 Eastside Street, Suite 450 Houston, Texas 77098 jwoodfill@woodfilllaw.com Fax: 713.751.3058 Jonathan M. Saenz Texas Values 900 Congress Avenue, Suite 220 Austin, Texas 78701 Fax: 512.478.2229 /s/ Darah Eckert Darah Eckert Cc: Hon. Olen Underwood Presiding Judge Second Admin. Judicial Region of Texas 301 N. Thompson, Suite 102 Conroe, Texas 77301 Fax: 936.538.8167 Hon Robert K. Schaffer Harris County Administrative Judge Harris County Civil Courthouse 201 Caroline, 11th Floor Houston, Texas 77002 Fax: 713.368.6801 Hon. David Farr Administrative Judge Family Division Harris County Courthouse 1115 Congress, 2nd Floor Houston, Texas 77002 Fax: 713.755.2315 7
CAUSE NO. 2013-75301 JACK PIDGEON AND LARRY HICKS, PLAINTIFFS, V. MAYOR ANNISE PARKER AND CITY OF HOUSTON, DEFENDANTS. IN THE DISTRICT COURT HARRIS COUNTY, TEXAS 310TH JUDICIAL DISTRICT ORDER DISSOLVING TEMPORARY RESTRAINING ORDER ON THIS DAY the Court heard Defendants Motion to Dissolve the Temporary Restraining Order obtained ex parte by Plaintiff on December 17, 2013, and is of the opinion that the Motion shall be GRANTED. The Court therefore orders that Plaintiffs Temporary Restraining Order is dissolved effective immediately. SIGNED THIS DAY OF DECEMBER, 2013 PRESIDING JUDGE
CAUSE NO. 2013-75301 JACK PIDGEON AND LARRY HICKS, PLAINTIFFS, V. MAYOR ANNISE PARKER AND CITY OF HOUSTON, DEFENDANTS. IN THE DISTRICT COURT HARRIS COUNTY, TEXAS 310TH JUDICIAL DISTRICT REQUEST FOR EMERGENCY HEARING Defendants Mayor Annise Parker and the City of Houston request an emergency hearing before the Court on Defendants Motion to Dissolve Temporary Restraining Order. IT IS ORDERED that Defendants Request for Emergency Hearing is GRANTED. Plaintiffs and Defendants are ORDERED to appear by telephone/in person on December, 2013 at a.m./p.m. SIGNED THIS DAY OF DECEMBER, 2013 PRESIDING JUDGE
EXHIBIT A
Holbrook, Bruce - LGL From: Sent: To: Subject: Maria Cerros <mcerros@woodfilllaw.com> Tuesday, December 17, 2013 4:56 PM Feldman, David M. - LGL Pidgeon v. City of Houston Dear Mr. Feldman, Please be advised that the above reference matter is assigned to the 310 th you coming to the court immediately. Judicial District Court. We would appreciate Best regards. Maria Cerros Paralegal Woodfill Law Firm River Oaks Green 3131 Eastside Street, Suite 450 Houston, Texas 77098 713.751.3080 713.751.3058 This e-mail and any attachments are confidential and may be protected by the attorney-client or other privileges. Any review, use, disclosure, or distribution by persons other than the intended recipients is prohibited and may be unlawful. Any distribution or other reproduction of this e-mail without prior approval from the sender is prohibited. Additionally, unless expressly stated in this e-mail, nothing in this message should be construed as a digital or electronic signature. If you believe this message has been sent to you in error, please do not read it; instead, notify the sender via reply e-mail that you received it in error, or call Woodfill & Pressler at 713-751-3080. Thereafter, delete this message and any copies (in whatever form). 1
Holbrook, Bruce - LGL From: Sent: To: Subject: Maria Cerros <mcerros@woodfilllaw.com> Tuesday, December 17, 2013 4:58 PM Feldman, David M. - LGL Pidgeon v. City of Houston Dear Mr. Feldman, Please be advised that the above reference matter is assigned to the 310 th Judicial District Court. We would appreciate you coming to the court immediately, we are moving forward with a Temporary Restraining Order Hearing. Best regards. Maria Cerros Paralegal Woodfill Law Firm River Oaks Green 3131 Eastside Street, Suite 450 Houston, Texas 77098 713.751.3080 713.751.3058 This e-mail and any attachments are confidential and may be protected by the attorney-client or other privileges. Any review, use, disclosure, or distribution by persons other than the intended recipients is prohibited and may be unlawful. Any distribution or other reproduction of this e-mail without prior approval from the sender is prohibited. Additionally, unless expressly stated in this e-mail, nothing in this message should be construed as a digital or electronic signature. If you believe this message has been sent to you in error, please do not read it; instead, notify the sender via reply e-mail that you received it in error, or call Woodfill & Pressler at 713-751-3080. Thereafter, delete this message and any copies (in whatever form). 1