353 S.W.3d 285

Carlos Diaz DE LEON, Daniel Marquez, Kimo Sylva, and Gabriel Morales, Appellants, v. CITY OF EL PASO, Texas, and Officer Israel Rodriguez-Aceves, Appellees.

No. 08-10-00348-CV.

Court of Appeals of Texas, El Paso.

Oct. 26, 2011.

*286Christopher Benoit, Paso Del Norte Civil Rights Project, El Paso, TX, for Appellants.

Karla M. Nieman, Assistant City Attorney, Duane A. Baker, El Paso, TX, for Appellees.

Before McCLURE, C.J., RIVERA, J., and CHEW, C.J., (Senior).

OPINION

GUADALUPE RIVERA, Justice.

Appellants bring this interlocutory appeal from the trial court’s order granting Appellees’ pleas to the jurisdiction. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2008). We reverse.

*287BACKGROUND

Appellants (Carlos Diaz De Leon, Daniel Marquez, Kimo Sylva, and Gabriel Morales) 1 sued Appellees (El Paso Police Officer Israel Rodriguez-Aceves and the City of El Paso),2,3 alleging violations of Texas Constitution Article I, § 3, and seeking declaratory and injunctive relief.4,5 In their petition, Appellants alleged the following:6 On the evening of June 28, 2009, Appellants, all of whom were men, entered the “Chico’s Tacos” restaurant on Montwood Avenue in El Paso. They placed their orders at the service counter, and, after receiving their orders, they sat down to eat. While they were standing at the service counter, two of them kissed briefly.7 As they took their seats, the two who had kissed at the service counter kissed again, briefly. A restaurant security guard approached Appellants and told them, “If you continue with your clowning around, we will throw you out of here. We won’t allow you to do faggot things here.” Appellants expressed puzzlement at the security guard’s threat, and the guard responded by calling them “pigs” and again threatening to eject them from the restaurant. Appellants, believing that the security guard had violated their legal right to be free from discrimination based on sexual orientation, sought assistance from the *288manager of the restaurant, but the manager declined to intervene. Appellants then telephoned the El Paso police. About 45 minutes later, Rodriguez-Aceves and another police officer arrived at the scene. Rodriguez-Aceves, after speaking with the security guard and with Appellants, told Appellants that it was “against the law for two men to kiss in public” and that he could arrest them for “that kind of behavior.”8 Appellants asked the officers for their names, but they declined to give out that information, with Rodriguez-Aceves explaining, ‘You do not need our names because there will be no police report.” Appellants insisted that they wanted a police report filed, but Rodriguez-Aceves responded by saying that he could file a police report only if he first arrested them for homosexual conduct. He also told them, “You should know the law before you call the police.” He then ordered Appellants to leave the restaurant, telling them, “You are lucky that you are not going to be ticketed for homosexual activity.”

Appellants alleged in their petition that Rodriguez-Aceves violated their right to equal treatment under Texas Constitution Article I, § 3, and caused them mental anguish by: (1) publicly humiliating them and treating them like criminals, on the basis of their sexual orientation; (2) threatening them with arrest under Texas Penal Code § 21.06, the homosexual conduct statute, although it had previously been declared unconstitutional;9 (3) failing to enforce the City’s anti-discrimination ordinance against the operators of the “Chico’s Tacos” restaurant;10,11 and (4) refusing to file a police report of the incident at the restaurant. For relief from these alleged constitutional violations, Appellants sought a declaratory judgment that Rodriguez-Aceves violated their right under Article I, § 3, and a permanent injunction directing him and all other El Paso police *289officers to refrain from using section 21.06 to threaten, harass, or arrest anyone.

Appellants also alleged in their petition that the City of El Paso violated their right under Article I, § 3, when the City’s police chief, acting with “conscious indifference” to the constitutional right of gay El Pasoans to equal treatment, “decided” not to provide training to the City’s police officers regarding the City’s anti-discrimination ordinance or the fact that Texas Penal Code § 21.06 had been declared unconstitutional, even though it was foreseeable that some police officers would remain ignorant of the current law and would continue to discriminate against gay El Pasoans. Appellants alleged further that, had the City properly trained its police officers, Rodriguez-Aceves would not have behaved as he did on the evening in question. For relief from this alleged constitutional violation, Appellants sought a declaratory judgment that the City violated their right under Article I, § 3, and a permanent, mandatory injunction directing the City “to immediately institute appropriate ... training and other measures to ... ensure that the constitutional violations [in question] cease to occur.”

Appellees Rodriguez-Aceves and the City each filed a plea to the jurisdiction. In their pleas, Appellees argued that: (1) Appellants lacked standing to bring this lawsuit, because none of them suffered a concrete, particularized injury at the hands of Appellees; (2) Appellants’ allegations against the City amounted to a negligence claim, for which there was no waiver of governmental immunity; and (3) Appellants’ lawsuit did not present a controversy that was ripe for adjudication. The trial court granted Appellees’ pleas to the jurisdiction but did not file any conclusions of law regarding its order.

Before this Court, Appellants argue that the trial court erred in granting Appellees’ pleas to the jurisdiction because Appellees offered no valid legal basis on which those pleas could be granted. Appellants argue that they suffered real injury at the hands of Appellees, and thus did have standing to bring this lawsuit, because Rodriguez-Aceves “harassed and threatened [them] because of their status or perceived status as homosexual[s],” because he failed to enforce the City’s anti-discrimination ordinance against the operators of Chico’s Tacos, and because he would not have acted as he did but for the City’s failure to train him properly. Appellants also argue that their lawsuit did in fact present a ripe controversy suitable for judicial resolution. Finally, Appellants argue that governmental immunity did not bar their lawsuit because they were seeking declaratory and injunctive relief for violations of the Texas Constitution.

DISCUSSION

A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. Bland I.S.D. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Thus, the plea must be determined without delving into the merits of the case, i.e., without considering whether the plaintiff can actually prove a cognizable claim. Id. The court, in ruling on the plea, must construe the pleadings in favor of the plaintiff. Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). A trial court’s ruling on a plea to the jurisdiction is reviewed de novo on appeal. Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).

We turn first to Appellants’ argument regarding their injury and thus their standing to bring this lawsuit. The requirement that a plaintiff have “standing” to assert a claim comes from the *290Texas Constitution’s separation of powers among the departments of government, which denies the judiciary the authority to decide issues in the abstract, and from the Open Courts provision, which provides court access only to a “person for an injury done him.” DaimlerChrysler v. Inman, 252 S.W.3d 299, 304 (Tex.2008). A court has no subject matter jurisdiction over a claim made by a plaintiff without standing. Id. A plaintiff, to have standing, must be personally aggrieved by the defendant; his alleged injury, economic or otherwise, must be concrete and particularized, actual or imminent, but not hypothetical. Id. at 304-05. The degree of injury that must be shown need not be great, yet it also must not be “too slight for a court to afford redress.” Id. at 305.

Appellants, in their petition, alleged that Rodriguez-Aceves intentionally humiliated them, treated them like criminals, threatened them with arrest under an unconstitutional statute, failed to provide them the protection of the City’s anti-discrimination ordinance, and ordered them to leave the restaurant in question, all because they were homosexual and, in Rodriguez-Aceves’ eyes, undeserving of his service and protection. Appellants also alleged that Rodriguez-Aceves would not have behaved as he did but for the City’s failure to train him properly. If Rodriguez-Aceves acted as Appellants alleged, then his comments to them were likely to generate feelings of frustration, anger, embarrassment, and humiliation, and were likely to reinforce erroneous beliefs in others present. Additionally, if Rodriguez-Aceves acted as Appellants alleged, then he also denied them the protection of the City’s anti-discrimination ordinance and forced them to leave the restaurant against their will. We conclude that Appellants have alleged facts showing injury sufficient to establish standing to bring this lawsuit. We sustain Appellants’ first point of error.

We turn next to Appellants’ argument regarding the ripeness of their claims. Ripeness “is a threshold issue that implicates subject matter jurisdiction.” Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998). Ripeness concerns whether, at the time a lawsuit is brought, “the facts have developed sufficiently so that an injury has occurred or is likely to occur, rather than being contingent or remote.” Id.

Appellants’ allegations in their petition all concern events and injuries that allegedly occurred at a time certain in the past. Consequently, we conclude that Appellants’ claims are ripe for judicial resolution. We sustain Appellants’ second point of error.

We turn finally to Appellants’ argument concerning the common law doctrine of “governmental immunity.” That doctrine protects political subdivisions of the State, including cities, from suit and liability for money damages. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). Governmental immunity, if it applies in a case, defeats the trial court’s subject matter jurisdiction over the case. Texas Dept. of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex.1999). The purpose of the doctrine of governmental immunity, if we are to be realistic about it, is to protect the public purse. Wichita Falls State Hosp., 106 S.W.3d at 695. A government officer or employee sued in an official capacity is entitled to governmental immunity to the extent that immunity is available to the government employer. McCartney v. May, 50 S.W.3d 599, 606 (Tex.App.-Amarillo 2001, no pet.). But the doctrine of governmental immunity does not bar suits for equitable relief for violations of the Texas Constitution. City of Beaumont v. Bouillion, 896 S.W.2d 143, *291149 (Tex.1995); City of El Paso v. Bustillos, 324 S.W.3d 200, 205 (Tex.App.-El Paso 2010, no pet.); W. Dorsaneo, 19 Texas Litigation Guide § 293.01[2] (2011). In this manner, our law protects the public purse while also protecting the right of every individual to claim the protection of the state constitution.

Appellants brought their suit for declaratory and injunctive relief for alleged violations of the Texas Constitution. We conclude that their suit is not barred by the doctrine of governmental immunity. We sustain Appellants’ fourth point of error. Having sustained Appellants’ first, second, and fourth points of error, we need not reach their third point of error, which is superfluous.12

In view of the foregoing, the trial court could not have properly granted Appellees’ pleas to the jurisdiction on the grounds asserted by Appellees.13 We therefore reverse the order of the trial court and remand the case to that court for further proceedings.

De Leon v. City of El Paso
353 S.W.3d 285

Case Details

Name
De Leon v. City of El Paso
Decision Date
Oct 26, 2011
Citations

353 S.W.3d 285

Jurisdiction
Texas

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