the “trial court granted the petition for writ of mandamus and ordered the mayor … and the city of Seven Points ‘to perform all legal requirements for the 7 holding of a valid election’”
How later courts described this case
- the “trial court granted the petition for writ of mandamus and ordered the mayor … and the city of Seven Points ‘to perform all legal requirements for the 7 holding of a valid election’”
Written by the judges who cited it.
The opinion
ACCEPTED
03-15-00518-CV
7481510
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/21/2015 3:55:10 PM
JEFFREY D. KYLE
CLERK
Case No. 03-15-00518-CV
IN THE THIRD COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
10/21/2015 3:55:10 PM
City of San Marcos, Texas, JEFFREY D. KYLE
Appellant Clerk
v.
Sam Brannon, Communities for Thriving Water—Fluoride-Free San Marcos,
Morgan Knecht, and Kathleen O’Connell,
Appellees
________________________________________________________________
On Appeal from the 274th Judicial District Court of Hays County, Texas
Honorable R. Bruce Boyer, Judge Presiding
Trial Court Cause Number 15-1266
RESPONSE BRIEF OF APPELLEES
COMMUNITIES FOR THRIVING WATER – FLOURIDE-FREE SAN
MARCOS, MORGAN KNECHT, and KATHLEEN O’CONNELL
Brad Rockwell Craig Young
State Bar No. 17129600 State Bar No 00786367
FREDERICK, PERALES, 108 San Antonio
ALLMON & ROCKWELL, P.C. San Marcos, Texas 78666
707 Rio Grande, Suite 200 (512) 847-7809
Austin, Texas 78701 (512) 353-1219 facsimilie
Telephone (512) 469-6000 cyoung@lawyer.com
Facsimile (512) 482-9346
COUNSEL FOR COUNSEL FOR MORGAN
KATHLEEN O’CONNELL, KNECHT
and COMMUNITIES
FOR THRIVING WATER
– FLUORIDE-FREE SAN MARCOS
October 20, 2015
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Parties Name & Address of counsel
Brad Rockwell
Frederick, Perales, Allmon &
Rockwell, P.C.
Appellees Communities for 707 Rio Grande, Ste. 200
Thriving Water – Fluoride-Free San Austin, TX 78701
Marcos, and Kathleen O’Connell Telephone: 512-469-6000
Facsimile: 512-482-9346
Brad@lf-lawfirm.com
Craig Young
108 San Antonio
San Marcos, Texas 78666
Appellee Morgan Knecht (512) 847-7809
(512) 353-1219 facsimile
cyoung@lawyer.com
Appellant City of San Marcos Michael J. Cosentino
City Attorney
630 E. Hopkins
San Marcos, TX 78666
(512) 393- 8151
(855) 759- 2846 facsimile
mcosentino@sanmarcostx.gov
Lynn Peach
174 S. Guadalupe Street, No. 101
Appellee Sam Brannon (512) 393-9991
(888) 428-0468 facsimile
lynn@lynnpeachlaw.com
i
TABLE OF CONTENTS
1. Identity of Parties and Counsel .........................................................................i
2. Table of Contents ............................................................................................ ii
3. Index of Authorities ....................................................................................... iii
4. Statement of the Case ...................................................................................... v
5. Statement Regarding Oral Argument .............................................................vi
6. Issues Presented ............................................................................................ vii
7. Statement of Facts............................................................................................ 1
8. Summary of the Argument .............................................................................. 3
9. Argument ..................................................................................................... 4
I. THE MANDAMUS CLAIMS ARE MOOT SO THE COURT OF
APPEALS HAS NO JURISDICTION OVER THIS APPEAL OF
THE APPELLANT’S PLEA TO THE JURISDICTION. ....................... 4
II. TRIAL COURTS HAVE CONCURRENT JURISDICTION WITH
APPELLATE COURTS OVER MANDAMUS PROCEEDINGS......... 6
III. MANDAMUS PROCEEDINGS MAY BE BROUGHT AGAINST
THE CITY OF SAN MARCOS .............................................................. 6
10. Prayer ............................................................................................................... 9
ii
INDEX OF AUTHORITIES
Cases
Allstate Ins. Co. v. Hallman, 159 S.W.3d 640 (Tex. 2005) ....................................... 5
Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) ............................ 6,7
City of Austin v. Gregory, 616 S.W.2d 329 (Tex. Civ. App.—Austin 1981, no
writ) ....................................................................................................................... 8
City of Corpus Christi v. Unitarian Church of Corpus Christi, 436 S.W.2d 923
(Tex. Civ. App.—Corpus Christi 1969, writ ref’d n.r.e.) ..................................... 8
City of El Paso v. Abbott, 444 S.W.3d 315 (Tex. App.—Austin 2014, pet.
denied)................................................................................................................... 8
City of San Antonio v. Routledge, 102 S.W. 756 (Tex. Civ. App. 1907, writ
ref’d) ..................................................................................................................... 8
In re Woodfill, No. 14–0667, 2015 WL 4498229 (Tex. 2015) (per curiam) .......... 4,7
Krohn v. Marcus Cable Associates, L.P., 201 S.W.3d 876 (Tex. App.—Waco
2006, pet. denied).................................................................................................. 5
Labrado v. County of El Paso, 132 S.W.3d 581 (Tex. App.—El Paso 2004, no
pet.) ....................................................................................................................... 5
Olenick v. City of Austin, No. 03–14–00339–CV, 2015 WL 4077245 (Tex.
App.—Austin 2015, no pet. h.)............................................................................. 8
Orr v. University of Texas at Austin, No. 03–14–00299–CV, 2015 WL 5666200
(Tex. App.—Austin 2015, no pet. h.) ................................................................... 5
Sepulveda v. Medrano, 323 S.W.3d 620 (Tex. App.—Dallas 2010, no pet.) ........... 5
Texas Dept. of Health v. Hejl, 607 S.W.2d 34 (Tex. App.—Austin 1980, no
writ) ....................................................................................................................... 5
Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981) .... 6
iii
Statutes
Tex. Election Code § 3.005(c)(2) .............................................................................. 4
Tex. Gov’t Code § 552.321........................................................................................ 8
Tex. Loc. Gov’t Code § 9.004 ...........................................................................1, 4, 9
iv
STATEMENT OF THE CASE
This is an interlocutory appeal from a denial of the City of San Marcos’ Plea
to the Jurisdiction, contesting the District Court’s jurisdiction over Appellees’
mandamus claims. In the underlying lawsuit, Appellants and Appellees have
cross-claims for declaratory relief and attorneys fees regarding the City’s failure to
put a City Charter Amendment on the November 2015 ballot after Appellees
submitted a petition for the Amendment to the City of San Marcos.
v
STATEMENT REGARDING ORAL ARGUMENT
Appellees do not believe oral argument is necessary as the jurisdictional
issues are not novel or complex, and the facts are simple and not in dispute. If,
however, the Court determines that oral argument would assist the Court in
resolving the issues presented by this appeal, then, Appellees request that they be
provided an opportunity to present oral argument.
vi
ISSUES PRESENTED
1. When the deadline for Appellant City of San Marcos to place Appellees’
proposed charter amendment on the ballot has long passed, is Appellees’
claim for mandamus relief moot thereby warranting dismissal of this
interlocutory appeal?
2. Do trial courts have non-exclusive original jurisdiction over mandamus
proceedings concerning the placement of measures on election ballots?
3. Can a writ of mandamus issue against a municipal defendant, ordering that
city to place a measure on the ballot, when no individual public official is
named as a defendant in the mandamus proceeding?
vii
STATEMENT OF FACTS
On or about April 2, 2015, Appellees submitted to the City Clerk of
Appellant City of San Marcos a petition with over 1,634 signatures of San Marcos
voters for a proposed amendment to the City Charter. This amount of signatures
significantly exceeded the 5% of registered voters required on a city charter
amendment petition. CR 61.
The Clerk did not count the number of signatures on the petition, but on May
6, announced that “none of the petition papers contains an oath or affirmation [and
therefore] none of the signatures may be counted.” CR 62.
On May 18 and June 16, Appellees O’Connell and Communities for
Thriving Water – Fluoride-Free San Marcos sent letters to the Mayor and City
Council of San Marcos asking them to place the charter amendment measure on
the ballot as required by Section 9.004(a) of the Texas Local Government Code.
CR 62.
On or about June 18, 2015, the City of San Marcos filed suit against
Appellees seeking attorneys fees and declaratory relief that a circulator’s oath was
required for each signature on the petition submitted by Appellees to the City. CR
63.
On July 17, Appellees filed counterclaims for declaratory relief, attorneys
fees, injunctive relief and a petition for mandamus relief. CR 20. Appellees also
1
filed a motion for summary judgment and sought and secured an expedited hearing
before Hays County District Judge R. Bruce Boyer. The City filed a Plea to the
Jurisdiction and presented argument to Judge Boyer at the beginning of the
summary judgment hearing.
On August 12, Judge Boyer signed an Order denying Appellants’ Plea to the
Jurisdiction, and this Order was filed on August 13. CR 20. On August 14, Judge
Boyer signed and sent to Counsel a letter ruling against the City and affirming
Appellees’ contention that no circulator’s affidavit was required, and requiring the
City to count the signatures, and if there are enough signatures, requiring the City
to call an election on the charter amendment measure. Appendix A.
Rather than complying with the letter ruling of the District Court, on August
17, the City filed a notice of interlocutory appeal, suspending further action in the
District Court.
Appellees and Shannon Dorn sought relief from the Texas Supreme Court
by requesting an emergency writ of mandamus. Appendix B. The Texas Supreme
Court denied the mandamus without an opinion of the Court. A concurring opinion
by two judges did not reach the merits but suggested that Appellees (1) should
have collected signatures at an earlier date to allow more time for post-submission
litigation, (2) should have filed suit immediately after submission rather than
giving the City Council of San Marcos an opportunity to place the measure on the
2
ballot, and (3) should have proceeded more quickly in litigation once the City filed
suit. Appendix G to Appellants’ brief. Two Supreme Court justices dissented.
Reaching the merits, they agreed with Appellees’ contention that a circulator’s
affidavit was not required, and they would have granted mandamus relief to
Appellees. Appendix C.
Thus, every judge who considered the merits of Appellees’ claims agreed
with Appellees and rejected the City’s reasons for refusing to count the signatures
and place the measure on the ballot.
SUMMARY OF THE ARGUMENT
The statutory deadline for the City of San Marcos to order an election on the
charter amendment that was the subject of Appellees’ petition was August 24,
2015. Appellees’ claims for mandamus relief are moot. The City knew its appeal
would soon be moot when it filed the notice of appeal, and it sought the
interlocutory appeal only to deprive the trial court of jurisdiction and free itself
from complying with a pending judgment of that court. Because Appellees’ claims
for mandamus relief are moot, the City’s interlocutory appeal challenging these
claims for mandamus relief should be dismissed. Appellees’ claims for declaratory
relief are not moot because they include a request for attorneys fees.
Alternatively, if the Court decides to consider the merits of the City’s
appeal, the district court’s denial of the City’s Plea to the Jurisdiction should be
3
affirmed because trial courts have original jurisdiction over mandamus proceedings
in election disputes and because pursuant to the longstanding common law
governing the right to mandamus and pursuant to statutory duties and
responsibilities imposed on municipalities with regard to charter amendment
petitions, municipalities are proper defendants in such mandamus proceedings.
ARGUMENT
I. THE MANDAMUS CLAIMS ARE MOOT, SO THE COURT OF
APPEALS HAS NO JURISDICTION OVER THIS APPEAL OF THE
APPELLANT’S PLEA TO THE JURISDICTION.
The City’s Plea to the Jurisdiction is directed solely to Appellees’ claim for a
writ of mandamus. By writ of mandamus, Appellees asked for the City of San
Marcos to be ordered to put the measure Appellees submitted to the City on the
November 2015 election ballot. See Tex. Loc. Gov’t Code § 9.004(b). The
statutory deadline for the City to order this election was August 24, 2015. In re
Woodfill, 2015 WL 4498229 *6, n.11 (Tex. 2015) (citing Tex. Election Code §
3.005(c)(2)); CR 11. Because this deadline has come and gone and this very
interlocutory appeal interrupted the trial court’s jurisdiction over the mandamus,
the mandamus claim is moot, and the Court of Appeals has no subject matter
jurisdiction over this interlocutory appeal.
When a mandamus governing an election and the contents of a ballot cannot
be issued in time for election officials to comply with the statutory deadlines for
4
conducting the general election, the mandamus claim is moot. See Sepulveda v.
Medrano, 323 S.W.3d 620, 623-24 (Tex. App.—Dallas 2010, no pet.). When one
seeks relief on a claim that can no longer have any practical legal effect, the parties
lack a legally cognizable interest in the outcome. There is no case or controversy,
and the court loses jurisdiction over the claim. Orr v. University of Texas at
Austin, 2015 WL 5666200 *2 (Tex. App.—Austin 2015, no pet. h.). Accordingly,
this appeal should be dismissed.
The declaratory judgment claims remaining in trial court, however, are not
moot because the parties seek attorneys fees. Compare Texas Dept. of Health v.
Hejl, 607 S.W.2d 34, 35-36 (Tex. App.—Austin 1980, no writ) (dismissing claim
for injunctive relief as moot & leaving the claims on the merits, including a claim
for attorneys fees pending), and Krohn v. Marcus Cable Associates, L.P., 201
S.W.3d 876 (Tex. App.—Waco 2006, pet denied). A “claim for attorneys fees
under the UDJA . . . prevents it from being moot when the substantive claims are
mooted during the pendency of the case.” Orr, at *4 (citing Allstate Ins. Co. v.
Hallman, 159 S.W.3d 640, 642-43 (Tex. 2005); Labrado v. County of El Paso, 132
S.W.3d 581, 589-590 (Tex. App.—El Paso 2004, no pet.).
The City of San Marcos’ interlocutory appeal of the denial of its plea to the
jurisdiction regarding Appellees’ mandamus claims should be dismissed for lack of
jurisdiction.
5
II. TRIAL COURTS HAVE CONCURRENT JURISDICTION WITH
APPELLATE COURTS OVER MANDAMUS PROCEEDINGS.
Alternatively, in the event that the Court determines that this appeal is not
moot, Appellees contend that the Hays County trial court had original jurisdiction
over Appellees’ claims for mandamus relief.
The Texas Supreme Court has consistently recognized the right to bring
original mandamus proceedings in district court against a governmental entity or
government officials. In Vondy v. Commissioners Court of Uvalde County, the
Supreme Court upheld the right to bring an original mandamus proceeding in
district court against a County Commissioners Court. 620 S.W.2d 104, 109 (Tex.
1981). “[O]riginal mandamus jurisdiction . . . is vested in the district court.” Id.
The “performance of a clear statutory duty which is ministerial and
nondiscretionary should be mandated by the district court. Even in matters
involving some degree of discretion,” a government entity “may not act
arbitrarily.” Id. (citations omitted).
In Anderson v. City of Seven Points, the Supreme Court upheld the original
jurisdiction of a district court over a lawsuit where a writ of mandamus was sought
against a City and its Mayor over the refusal to order an election requested by a
citizen petition. 806 S.W.2d 791, 792-794 (Tex. 1991).
And as recently as July of this year, the Texas Supreme Court ruled that “a
mandamus proceeding to compel public officials to put something on the ballot
6
may start in district court” and “may also originate in the appellate courts.” In re
Woodfill, 2015 WL 4498229 *6 (Tex. 2015).
For this reason, if the Court does not dismiss the City’s interlocutory appeal
for lack of jurisdiction, Appellees request that the District Court order denying the
City’s Plea to the Jurisdiction be affirmed.
III. MANDAMUS PROCEEDINGS MAY BE BROUGHT AGAINST THE
CITY OF SAN MARCOS.
In the alternative, in the event that the Court determines it has jurisdiction
over the City’s appeal, Appellees contend that the City was the proper Defendant
in its suit for a writ of mandamus.
The City of San Marcos filed suit against Appellees asserting it was the
proper party in the dispute over whether Appellees’ measure should be put on the
ballot and subjecting itself to the trial court’s jurisdiction on that issue. Appellees
filed counterclaims against the City, including a claim for a writ of mandamus. The
City of San Marcos now claims that no mandamus may issue against it or any other
cities to mandate compliance with the law. It claims that only individual officials
can be defendants in a claim for mandamus relief.
There are many examples of Texas courts issuing writs of mandamus against
cities. See, e.g., Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex.
1991) (the “trial court granted the petition for writ of mandamus and ordered the
mayor … and the city of Seven Points ‘to perform all legal requirements for the
7
holding of a valid election’”); City of Corpus Christi v. Unitarian Church of
Corpus Christi, 436 S.W.2d 923, 925 & 930 (Tex. Civ. App.—Corpus Christi
1969, writ ref’d n.r.e.) (after City Council of Corpus Christi refused to approve a
plat, Court of Civil Appeals affirmed trial court’s issuance of a writ of mandamus
against the City of Corpus Christi); City of Austin v. Gregory, 616 S.W.2d 329
(Tex. Civ. App.—Austin 1981, no writ) (affirming writ of mandamus against the
City of Austin based on error committed by Civil Service Commission); City of
San Antonio v. Routledge, 102 S.W. 758, 759 & 773 (Tex. Civ. App. 1907, writ
ref’d) (in case where only the City of San Antonio was municipal defendant,
appellate court upheld part of mandamus against the City and reversed part of
mandamus).
“Texas law authorizes mandamus relief to compel a public official or body
to either perform a ministerial duty or to correct a clear abuse of discretion.”
Olenick v. City of Austin, 2015 WL 4077245 *1 (Tex. App.—Austin 2015, no pet.
h.) (emphasis added). Similar language in section 552.321 the Public Information
Act authorizing a suit for a writ of mandamus against “a government body” has
been interpreted to authorize suits against cities. See, e.g., City of El Paso v.
Abbott, 444 S.W.3d 315, 322 (Tex. App.—Austin 2014, pet. denied).
It is the City Council on whom the Local Government Code imposes a duty
in response to Appellees’ submission of a signed petition.
8
The governing body shall submit a proposed charter amendment to
the voters for their approval at an election if the submission is
supported by a petition signed by a number of qualified voters of the
municipality equal to at least five percent of the number of qualified
voters of the municipality or 20,000, whichever number is the
smaller.
Tex. Loc. Gov’t Code § 9.004(a). Appellees’ suit for mandamus relief was
properly directed to the City.
For this reason, if the Court does not dismiss the City’s interlocutory appeal
for lack of jurisdiction, Appellees ask that the District Court order denying the
City’s Plea to the Jurisdiction be affirmed.
PRAYER
Appellees Kathleen O’Connell, Communities for Thriving Water – Fluoride-
Free San Marcos, and Morgan Knecht ask the Court to dismiss as moot the City of
San Marcos’ interlocutory appeal of the denial of its Plea to the Jurisdiction. If the
Court does not dismiss the City’s interlocutory appeal for lack of jurisdiction,
Appellees ask that the District Court’s denial of the City’s Plea to the Jurisdiction
be affirmed.
Respectfully submitted,
/s/ Brad Rockwell
Brad Rockwell
SBT No. 17129600
FREDERICK, PERALES, ALLMON
& ROCKWELL, P.C.
9
707 Rio Grande, Ste. 200
Austin, Texas 78701
(512) 469-6000
(512) 482-9346 (facsimile)
COUNSEL FOR APPELLEES
COMMUNITIES FOR THRIVING
WATER – FLUORIDE-FREE SAN
MARCOS, and KATHLEEN
O’CONNELL
/s/ Craig Young
Craig Young
SBT No 00786367
108 San Antonio
San Marcos, Texas 78666
(512) 847-7809
(512) 353-1219 facsimile
COUNSEL FOR MORGAN
KNECHT
10
CERTIFICATE OF COMPLIANCE
I certify that this document is in compliance with Tex. R. App. P. 9.4 (e) and
(i). It contains 2,054 words excluding the exempted parts of the document. The
body text is in 14 point font, and the footnote text is in 12 point font.
CERTIFICATE OF SERVICE
By my signature, below, I certify that on October 20, 2015, a true and correct copy
of the foregoing document was served upon the parties below by email.
/s/ Brad Rockwell
Brad Rockwell
FOR THE CITY OF SAN MARCOS:
WILLIAM M. McKAMIE
941 Proton Rd.
San Antonio, Texas 78258
210.546.2122
210.546.2130 (Fax)
mick@mckamiekrueger.com
Michael J. Cosentino
San Marcos City Attorney
630 East Hopkins
San Marcos, Texas 78666
(512) 393- 8151
(855) 759- 2846 fascimile
mcosentino@sanmarcostx.gov
FOR SAM BRANNON:
Lynn Peach
174 S. Guadalupe Street, No. 101
(512) 393-9991
(888) 428-0468 facsimile
lynn@lynnpeachlaw.com
11
APPENDIX A
JUDGE BOYER LETTER
APPENDIX B
EMERGENCY PETITION FOR WRIT
OF MANDAMUS
No. ______________
IN THE SUPREME COURT
OF THE STATE OF TEXAS
In re Shannon Dorn et al.
Original Proceeding pursuant to Election Code § 273.061
EMERGENCY PETITION FOR WRIT OF MANDAMUS
OF SHANNON DORN, KATHLEEN O’CONNELL,
COMMUNITIES FOR THRIVING WATERS – FLOURIDE-FREE SAN
MARCOS, AND MORGAN KNECHT
EXPEDITED CONSIDERATION REQUESTED
Brad Rockwell
State Bar No. 17129600
FREDERICK, PERALES,
ALLMON & ROCKWELL, P.C.
707 Rio Grande, Suite 200
Austin, Texas 78701
Telephone (512) 469-6000
Facsimile (512) 482-9346
ATTORNEYS FOR RELATORS
SHANNON DORN, KATHLEEN
O’CONNELL, and COMMUNITIES
FOR THRIVING WATERS –
FLUORIDE-FREE SAN MARCOS.
i
Craig Young
State Bar No 00786367
108 San Antonio
San Marcos, Texas 78666
(512) 847-7809
(512) 353-1219 facsimile
cyoung@lawyer.com
ATTORNEY FOR MORGAN
KNECHT
August 20, 2015
ii
IDENTITY OF PARTIES AND COUNSEL
Parties Name & Address of counsel
Brad Rockwell
Frederick, Perales, Allmon &
Relators Shannon Dorn, Rockwell, P.C.
Communities for Thriving Waters – 707 Rio Grande, Ste. 200
Fluoride-Free San Marcos, and Austin, TX 78701
Kathleen O’Connell. Telephone: 512-469-6000
Facsimile: 512-482-9346
Brad@lf-lawfirm.com
Craig Young
108 San Antonio
San Marcos, Texas 78666
Relator Morgan Knecht (512) 847-7809
(512) 353-1219 facsimile
cyoung@lawyer.com
Respondent Mayor Daniel Guerrero Michael J. Cosentino
City Attorney
City of San Marcos
630 E. Hopkins
San Marcos, TX 78666
(512) 393- 8151
(855) 759- 2846 facsimile
mcosentino@sanmarcostx.gov
Michael J. Cosentino
City Attorney
Respondents Lisa Prewitt, Jude
City of San Marcos
Prather, John Thomaides, Jane
630 E. Hopkins
Hughson, Ryan Thomason, and
San Marcos, TX 78666
Shane Scott
(512) 393- 8151
(855) 759- 2846 facsimile
mcosentino@sanmarcostx.gov
Michael J. Cosentino
Respondent City Clerk Jamie Lee
City Attorney
Pettijohn
City of San Marcos
iii
630 E. Hopkins
San Marcos, TX 78666
(512) 393- 8151
(855) 759- 2846 facsimile
mcosentino@sanmarcostx.gov
iv
TABLE OF CONTENTS
1. Table of Contents .................................................................................. v
2. Index of Authorities ............................................................................. vi
3. Statement of the Case ........................................................................ viii
4. Statement of Jurisdiction ...................................................................... x
5. Issues Presented .................................................................................... x
6. Statement of Facts................................................................................. 2
7. Argument .......................................................................................... 5
I. Mandamus ..................................................................................... 5
II. The San Marcos City Charter Does Not Require an Oath or
Affirmation in Charter Amendment Petitions .............................. 6
III. Other Requirements of State Law Have Been Met by Relators. 11
IV. A Circulator’s Oath Would be Unconstitutional as Applied
Here………………. .................................................................... 11
8. Prayer .................................................................................................. 12
9. Certification ........................................................................................ 13
v
INDEX OF AUTHORITIES
Cases
In re Bell, 91 S.W.3rd 784 (Tex. 2002) .............................................................. 10
Blume v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999). ......................................... 10
Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980) ...... 9, 11
Cook v. Tom Brown Ministries, 385 S.W.3d 592, 608 (Tex. App. – El Paso 2012,
pet. denied) .................................................................................................... 11
Edwards v. Murphy, 256 S.W.2d 470 475 (Tex. Civ. App. – Fort Worth 1953, writ
dism’d ) ............................................................................................................6
In re Gamble, 71 SW.3d 313, 318 (Tex. 2002); ................................................ 10
Green v. City of Lubbock, 627 S.w.2d 868, 871 (Tex. App. – Amarillo 1982, writ
ref’d n.r.e.) .................................................................................................... 12
Pilcher v. Rains, 853 F.2d 334, 337 (5th Cir. 1988) ........................................... 12
Quick v. City of Austin, 7 S.W.3d 109, 124 (Tex. 1998) ............................... 9, 11
Withers v. Commissioners Court of Bandera County, 75 S.W.3d 528, 530-531
(Tex. App. – San Antonio 2002, orig. proceeding) .........................................9
In re Woodfill, 2015 WL 4498229 (Supreme Court July 24, 2015). ....................x
Statutes
ELECTION CODE § 3.005(c)(2) ............................................................ viii, xi, 4
ELECTION CODE § 273.061…………………………………………..viii, x, 5
ELECTION CODE § 273.081………………………………………viii, x, 6, 10
ELECTION CODE § 277.002……………………………………………..x, 3, 7
vi
ELECTION CODE § 277.021………………………………………………….3
LOCAL GOVERNMENT CODE § 9.004 ........................ x, 3, 4, 6, 7, 10, 11, 12
Constitutions
TEXAS BILL OF RIGHTS §§ 2, 8, & 27 ......................................................... 12
UNITED STATES CONSTITUTION First Amendment ................................ 12
Other
SAN MARCOS CITY CHARTER § 6.01……………………………………7, 8
SAN MARCOS CITY CHARTER § 6.02 ……………………………………...9
SAN MARCOS CITY CHARTER § 6.03 ……………….……..3, 5, 8, 9, 11, 12
SAN MARCOS CITY CHARTER § 12.11................................... x, 5, 7, 8, 9, 11
vii
STATEMENT OF THE CASE
By this petition for writ of mandamus, Relators Shannon Dorn, Communities
for Thriving Waters – Fluoride-Free San Marcos (“Communities”), Kathleen
O’Connell, and Morgan Knecht seek an order pursuant to Election Code sections
273.061 and 273.081 and Local Government Code section 9.004(a) & (b) to
compel Respondents (City of San Marcos, San Marcos City Clerk Jamie Lee
Pettijohn, San Marcos Mayor Daniel Guerrero, and San Marcos City Council
members Lisa Prewitt, Jude Prather, John Thomaides, Jane Hughson, Ryan
Thomas, and Shane Scott ) to order an election placing Relators’ City Charter
Amendment measure on the November 3, 2015 ballot. Pursuant to Election Code
section 3.005(c)(2), the order for this election must occur on or before August 24,
2015. In addition, Relators seek an order compelling San Marcos City Clerk
Jamie Lee Pettijohn, the San Marcos City Clerk, to review the petition submitted
by Relators and certify that the requisite number of signatures have been
submitted for the petition for the City Charter Amendment.
This mandamus petition is related to another lawsuit filed by the City of San
Marcos seeking declaratory relief and attorneys fees against Relators
Communities, O’Connell, and Knecht: City of San Marcos v. Sam Brannon et al.,
Cause No. 15-1266 in the 22nd Judicial District Court in Hays County. Those
Relators who were defendants in that lawsuit counterclaimed for mandamus,
viii
declaratory, and injunctive relief, seeking identical and nearly identical relief to
what is sought here. On an expedited hearing on summary judgment, District
Judge Bruce Boyer ruled in favor of Counterclaimants/Defendants who included
all but one of the Relators here, ordering
the City of San Marcos, through its appropriate official, to review the
submitted petition to ascertain if it contains the original signatures of
the percentage of qualified voters required by Section 9.004(a) of the
Local Government Code. The Codes do not require or prescribe a
particular form of verification or affirmation, only that the signatures
not be copies or reproductions.
If the petition qualifies, the City of San Marcos shall be required to
follow the ministerial duty of calling for an election on the issues.
Exhibit 1 to Record. The District Court also denied San Marcos’ Plea to
the Jurisdiction.1 San Marcos then immediately filed an interlocutory
appeal which stayed all proceedings in the District Court.2
The District Court stay invoked by the City of San Marcos will prevent
Relators from securing the relief they are entitled to under the District Court’s
ruling and under the law. Relator’s here seek a writ of mandamus issued against
Respondent City of San Marcos, Respondent Jamie Lee Pettijohn, and
Respondents Mayor and City Council members of San Marcos so that relief can be
granted in a manner timely enough for an election on the measure to be held on
November 3, 2015.
1
Exhibit 2 to Record.
2
Exhibit 3 to Record.
ix
STATEMENT OF JURISDICTION
This Court has jurisdiction to grant the requested relief under the Texas
Election Code sections 273.081 and 273.061. Section 273.061 provides: “The
supreme court or a court of appeals may issue a writ of mandamus to compel the
performance of any duty imposed by law in connection with the holding of an
election or a political party convention, regardless of whether the person
responsible for performing the duty is a public officer.”
Relators complain of the actions of the City of San Marcos, the City Clerk
and the City Council of San Marcos, from which there is no timely remedy by
appeal. In re Woodfill, 2015 WL 4498229 (Supreme Court July 24, 2015).
Because of this same urgency and deadline, Relators have a compelling
reason to submit this petition to the Supreme Court to secure finality now rather
than first going to the Austin Court of Appeals for mandamus relief.
ISSUES PRESENTED
1. Does the Mayor and City Council members have a duty pursuant to Local
Government Code section 9.004(a) to submit Relators’ proposed charter
amendment to the voters for their approval at an election on November 3,
2015?
x
2. Pursuant to Local Government Code section 9.004, San Marcos City Charter
section 12.11, and Election Code section 277.002, does the City of San
Marcos and in particular its Respondents City Clerk Pettijohn and/or Mayor
and City Council members, have a duty to consider signatures valid even
though they are not accompanied by a circulator’s oath and to count the
number of qualified voters who have signed Relators’ petition for a charter
amendment to determine whether these qualified voters equal at least five
percent of the number of qualified voters of the municipality?
3. And as a possible alternative issue, is it appropriate in this instance for the
Supreme Court to override the deadline in Election Code section 3.005(c)(2)
for ordering an election on Relators’ charter amendment, and compel
Respondents’ to call a November 3, 2015 election on Relators’ ballot
measure after August 24, 2015?
xi
TO THE HONORABLE JUSTICES OF THE TEXAS SUPREME COURT
Relators who submitted and/or signed a petition for an amendment to the
Charter for the City of San Marcos containing more than 50% more valid
signatures than necessary to trigger a duty on the part of Relators to call an election
on November 3, 2015 for the matter. Relators, however, have failed and refused to
put the measure on the ballot. Relators sought emergency relief in Hays County
District Court and the court issued a ruling ordering Respondent City of San
Marcos to count the number of valid signatures on the petition and order an
election on the measure if the number of signatures is sufficient. The District
Court specifically rejected all of the arguments advanced by Respondent City of
San Marcos as to why the signatures were invalid. Respondent City of San Marcos
initiated an interlocutory appeal of the District Court’s ruling on jurisdiction
thereby staying the District Court proceedings.
For the reasons given below, Relators ask that the Texas Supreme Court
uphold and protect their rights to a City Charter amendment election provided by
the Texas Constitution, the San Marcos City Charter and the laws of Texas in the
same manner those rights were recognized by the Hays County District Court and
grant Relators a remedy that the District Court was stymied to provide due to
procedural maneuvers of Respondents.
.
1
STATEMENT OF FACTS
On April 2, 2015, Relators Communities for Thriving Water—Fluoride Free
San Marcos (“Communities”), Kathleen O’Connell, and Morgan Knecht submitted
to Respondent Pettijohn, City Clerk of the City of San Marcos, a petition signed by
about 2000 people including Relator, Shannon Dorn, who is a resident of San
Marcos and a qualified voter.3 The petition sought an election on the amendment
of the San Marcos City Charter to prevent the fluoridation of the City of San
Marcos water supply. The Petition was titled a “PETITION to BAN
FLOURIDATION in CITY OF SAN MARCOS WATER.” The Charter language
proposed by the Petition reads:
The City of San Marcos … shall not fluoridate the public
water supply or accept any fluoridated water for use in the
San Marcos water system, including but not limited to the
addition of Hydrofluorosilicic Acid, Hexafluorosilicic Acid,
Sodium Silicofluoride, or any other fluoride derivative. The
City of San Marcos shall not purchase, install, or allow the
installation of fluoridation equipment to be used in relation to
the San Marcos municipal water supply or its distribution
system.4
Before submitting the petition, Relators conducted three verifications of the
signatures using voter registration lists of San Marcos, and determined that at least
1634 of the signatures on this petition were valid – i.e. of registered San Marcos
3
Exhibit 4 to Record & exhibit B to Exhibit 4.
4
Id.
2
voters.5 Respondent Pettijohn informed Relators that the requisite number of
signatures required under Local Government Code section 9.004(a) was 1090.6
After delivering the petitions, Respondent Jamie Lee Pettijohn as City Clerk
refused to count or verify any of the signatures on the petition because none of the
signatures contained an oath or affirmation that “the statements were true, that each
signature … is the genuine signature of the person whose name purports to be
signed thereto, and that such signatures were placed thereon in the person’s
presence” – all requirements for petitions for ordinances and referenda on City
Council legislation found in section 6.03 of the San Marcos City Charter.7
Respondents Communities and O’Connell made demand on the City to count the
number of signatures by qualified voters pursuant to Local Government Code
section 9.004(a) and Election Code sections 277.021 and 277.002 and place the
measure on the ballot.8 In response, the City of San Marcos filed suit against
Relators O’Connell, Communities, and Morgan seeking declaratory relief and
attorneys fees against them.9
Relators Communities, O’Connell, and Morgan filed counterclaims seeking
declaratory, mandamus, and injunctive relief asking for a declaration that no
5
Exhibit 4 to Record & Exhibit C to Exhibit 4.
6
Exhibit 4 to Record and Exhibit B to Exhibit 4.
7
Exhibit 18 to Record and Exhibit A to Exhibit 14.
8
Exhibit 4 to Record and Exhibit F and G to Exhibit 4.
9
Exhibit 10 to Record.
3
verification or oath was required and asking that the City be ordered to put the
measure on the November 3, 2015 ballot. See Tex. Loc. Gov’t Code § 9.004(a) &
(b).10
Election Code section 3.005(c)(2) establishes a deadline of August 24, 2015
for the City to order an election for November 3, 2015, if one is to occur. Yet after
filing its lawsuit, the City did nothing to resolve its claims in a timely manner.
Relators, however, filed a Motion for Summary Judgment requesting a hearing on
an expedited schedule.11 The expedited hearing was granted and the District Court
also heard the City of San Marcos’ Plea to the Jurisdiction.
The District Court issued a letter ruling on August 14, granting relief to
Relators and rejecting the arguments made by the City of San Marcos.12 The
District Court also denied the City’s Plea to the Jurisdiction.13 By August 15, the
City had filed a notice of appeal, thereby staying all proceedings in the district
court.14 The Court of Appeals sent notice on August 18 that the City would have
until August 28 to make arrangements for the Record and pay the filing fee.15 This
would be four days past the deadline for the City to comply with the Election Code
and afford Relators the rights they are entitled to under the law. By filing the
10
Exhibit 11 to Record.
11
Exhibit 13 to Record.
12
Exhibit 1 to Record.
13
Exhibit 2 to Record.
14
Exhibit 3 to Record.
15
Exhibit 17 to Record.
4
notice of interlocutory appeal, the City has deprived Relators of the possibility of
getting the relief granted them by the trial court and to which they are entitled.
On August 18, the City Council set elections on City Charter amendments
for November 3, 2015. On the ballot on these elections was not the anti-fluoride
measure contained in Relators’ petition and which the District Court had ordered to
be on the ballot. What the City put on the ballot was its own loophole-filled
fluoride measure and an amendment to the City Charter that would alter the charter
amendment process.16 The City Council seeks to amend the City Charter
amendment section of the charter, section 12.11, and add a provision that makes
the circulator’s oath requirements of section 6.03 applicable to future petitions to
amend the city charter. This act was all but an admission that Relators’
interpretation and understanding of section 12.11 and 6.03 of the existing Charter
is correct.
ARGUMENT
I. Mandamus
This is an original proceeding under section 273.061 of the Election Code
which authorizes the Supreme Court to issue a writ of mandamus to compel the
performance of any duty imposed by law in connection with the holding of an
election. Relators submitted a petition with more than 1634 valid signatures of
16
Exhibit 18 to the Record and exhibit B to Exhibit 18.
5
people registered to vote in San Marcos.17 Five percent of the number of San
Marcos citizens registered to vote on April 2, 2015 is 1090.18 The City has refused
to call an election on the measure requested by the petition as required by section
9.004 of the Local Government Code and instead filed suit in District Court.19
Relators seek to compel the holding of the election on November 3, 2015 as
required by law.
Time constraints and the City’s filing of an interlocutory notice of appeal
renders inadequate any remedy at law. As an auxiliary remedy, Relators invoke
Texas Election Code section 271.083.
II. The San Marcos City Charter Does Not Require an Oath or Affirmation
in Charter Amendment Petitions.
When the voters of a city take action to amend their charters, this is the
“exercise by the people of a power reserved to them, and not the exercise of a right
granted.” Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980).
In “order to protect the people of the city in the exercise of this reserved legislative
power, such charter provisions should be liberally construed in favor of the power
reserved.” Id. Accord Quick v. City of Austin, 7 S.W.3d 109, 124 (Tex. 1998);
Edwards v. Murphy, 256 S.W.2d 470 475 (Tex. Civ. App. – Fort Worth 1953, writ
dism’d ).
17
Exhibit 4 to Record.
18
Exhibit 4 to Record and Exhibit E to Exhibit 5.
19
Exhibit 10 to Record.
6
Only one section of the City Charter defines the Charter Amendment
process. Section 12.11 is titled “Amending the Charter.”20 It says simply that
“Amendments to the Charter may be framed and submitted to the voters of the city
in the manner provided by state law.” There is no reference to other sections of the
Charter and no indication that other sections of the charter relate to Charter
Amendments. The only relevant provisions are to be found in state law.
Section 9.004(a) of the State Local Government Code requires the
“governing body to submit a proposed charter amendment to the voters for their
approval at an election if the submission is supported by a petition signed by a
number of qualified voters of the municipality equal to at least five percent of the
number of qualified voters of the municipality….” This state law regarding
charter amendments is in contrast to the San Marcos Charter provisions regarding
ordinances by citizen initiatives, which require petitions for ordinances to be
“signed by at least ten per cent of the qualified voters of the city.” Sec. 6.01.
The state law provision regarding validity of petition signatures is
section 277.002 of the Election Code. This section enumerates specific
requirements for a petition signature to be valid. It must be accompanied by the
signers printed name, the signer’s date of birth or voter registration number, the
20
Exhibit 7 to Record.
7
signer’s residential address, and the date of signing. No other specific requirement
is enumerated. No circulator’s affidavit is required.
The City of San Marcos has never claimed that Relators failed to meet these
requirements laid out in state law. San Marcos and Relator Pettijohn instead have
contended that the petition signatures are invalid because they are not accompanied
by a circulators’ affidavit.21 Specifically, San Marcos claims that section 6.03 of
the City Charter governs the City Charter Amendment process (among other
things) and this section requires an oath or affirmation that “the statements were
true, that each signature … is the genuine signature of the person whose name
purports to be signed thereto, and that such signatures were placed thereon in the
person’s presence.”
This of course is not a requirement found in state law which the Charter
Amendment section of the City Charter, section 12.11, said defines the process and
requirements involved in a Charter amendment. This is a requirement that Relator
Pettijohn and the City of San Marcos pulled out of section Article VI of the City
Charter.
Article VI does not reference charter amendments at all but instead is titled
“Initiative, Referendum and Recall.” Each of these terms is defined within Article
VI. Section 6.01 is titled: “Power of initiative” and 6.01 defines “initiative” to be
21
Exhibit 10 to Record.
8
the power to “propose any ordinance or repeal any ordinance not in conflict with
this Charter.” Thus, as the term “initiative” is used in the Charter it does not have
to do with a charter amendment but rather an ordinance that complies with the pre-
existing Charter. Section 6.02 is titled “Power of referendum.” Referendum is
defined narrowly as the “power to approve or reject at the polls any legislation
enacted by the council.” Referendum petitions are said to require a petition signed
by at least ten per cent of the qualified voters. This is in contrast to the state law
governing Charter Amendments, which only require signatures of 5% of the voters.
Section 6.03 of the “Initiative, Referendum and Recall” Article of the
Charter expressly refers to “Initiative petition papers” and “Referendum petition
papers,” just as one would expect. It is in this paragraph that the requirement of a
circulator’s oath is found and it is this paragraph which San Marcos contends
governs the City Charter Amendment process. There is no reference to City
Charter amendments in section 6.03 or anywhere else in Article VI. The one
section of the City Charter that lays out the requirements for City Charter
amendments, section 12.11, makes no reference to section 6.03, but only to the
requirements of state law.
An interpretation that would impose Charter section 6.03 circulator’s oath
requirements on a petition for a Charter Amendment (when no such requirement is
found under state law) would violate common sense rules of construction. Cf. In
9
re Bell, 91 S.W.3rd 784 (Tex. 2002); Withers v. Commissioners Court of Bandera
County, 75 S.W.3d 528, 530-531 (Tex. App. – San Antonio 2002, orig.
proceeding) . It would also contravene the rule that Charter provisions are to be
construed liberally in favor of the right and power of citizens to amend their own
city charters. Coalson, 610 S.W.2d at 747; Quick, 7 S.W.3d at 124.
Respondents as a whole violated their duties under the City Charter and
section 9.004(a) and (b) of the Local Government Code, when they failed and
refused to count the signatures on the petition submitted to it by Relators and when
it failed and refused to place the anti-fluoridation charter amendment proposed by
Relators on the ballot for the November 3, 2015 election. Relators ask for a
mandamus consistent with the ruling of the District Court requiring Respondents to
count the signatures and place their proposed charter amendment on the November
3, 2015 election ballot. . “When the requisite number of qualified signatures sign
such a petition, the municipal authority must put the measure to a popular vote.”
Blume v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999).
In the alternative and only if necessary, Relators ask the Court to grant
modest relief from the August 24 statutory guideline and extend the deadline for
the City Council to order an election with Relators’ measure on the ballot. Texas
Election Code § 273.081; see In re Gamble, 71 SW.3d 313, 318 (Tex. 2002);
10
Cook v. Tom Brown Ministries, 385 S.W.3d 592, 608 (Tex. App. – El Paso 2012,
pet. denied).
III. Other Requirements of State Law Have Been Met by Relators.
As the District Court ruled, the proposed Charter Amendment addresses one
subject, the fluoridation of San Marcos’ public water supply. Thus it satisfied
Local Government Code section 9.004(d).
As the District Court ruled, there is no requirement that the ordinance calling
the election must be included within the charter amendment petition. The
enactment of an ordinance setting the election is a duty of Respondents, not
Relators.
And as the District Court ruled, it is Respondents who have the duty to
include a fiscal note in the Charter Amendment election notice, and there is no
requirement that it be in the charter amendment petition.
IV. A Circulators’ Oath Would Be Unconstitutional as Applied Here.
Even if it were possible to construe the obligation for a circulator’s oath
found in section 6.03 to be a requirement added to section 12.11 delineation of the
Charter Amendment process, and Relators contend it is not possible, such a
construction as applied to Relators would be unconstitutional. Relators initially
followed Respondents’ misleading legal advice with respect to the requirement of
the circulator’s oath and in two previous petition drives failed to collect enough
11
signatures. The circulator’s oath therefore imposed a significant burden on
Relators’ constitutional rights under sections 2, 8 and 27 of the Texas Bill of
Rights and the First Amendment to the United States Constitution. This burden is
not overcome by any showing of necessity in this circumstance and so is
unconstitutional. See Pilcher v. Rains, 853 F.2d 334, 337 (5th Cir. 1988); Green v.
City of Lubbock, 627 S.w.2d 868, 871 (Tex. App. – Amarillo 1982, writ ref’d
n.r.e.) (“All political power is inherent in the people.”).
PRAYER
For the reasons described above, Relators respectfully ask the Court to issue a
writ of mandamus against Respondent City of San Marcos, Respondent Jamie Lee
Pettijohn who is City Clerk for San Marcos, and Respondents Mayor and City
Council members of San Marcos, requiring them by August 24, 2015 (or by some
other date chosen by the Court that would provide sufficient time for the
November 3, 2015 election): to review the submitted petition to ascertain whether
it contains the original signatures of the percentage of qualified voters required by
section 9.004(a) of the Local Government Code without concern as to whether
there is compliance with section 6.03 of the City Charter; and issue an ordinance
setting an election on November 3, 2015 on the measure set forth in the petition.
Relators additionally seek any other relief to which they may be entitled including
but not limited to injunctive relief that would extend the August 24, 2015 deadline.
12
Respectfully submitted,
/s/ Brad Rockwell
Brad Rockwell
SBT No. 17129600
LOWERRE, FREDERICK,
PERALES, ALLMON &
ROCKWELL
707 Rio Grande., Ste. 200
Austin, Texas 78701
(512) 469-6000 / 482-9346
(facsimile)
COUNSEL FOR RELATORS
SHANNON DORN,
COMMUNITIES FOR THRIVING
WATERS – FLUORIDE-FREE SAN
MARCOS, and KATHLEEN
O’CONNELL.
Craig Young
SBT No 00786367
108 San Antonio
San Marcos, Texas 78666
(512) 847-7809
(512) 353-1219 facsimile
ATTORNEY FOR MORGAN
KNECHT
13
CERTIFICATION
By my signature, below, I certify that I have reviewed this petition for writ
of mandamus and concluded that every factual statement in this petition is
supported by competent evidence included in the appendix or record.
/s/Brad Rockwell
Brad Rockwell
14
CERTIFICATE OF SERVICE
By my signature, below, I certify that on August 20, 2015, a true and correct copy
of the foregoing document was served upon the parties below by hand delivery.
/s/ Brad Rockwell
Brad Rockwell
FOR THE CITY OF SAN MARCOS:
Michael J. Cosentino
San Marcos City Attorney
630 East Hopkins
San Marcos, Texas 78666
(512) 393- 8151
(855) 759- 2846 fascimile
mcosentino@sanmarcostx.gov
FOR MORGAN KNECHT:
Craig Young
108 San Antonio
San Marcos, Texas 78666
(512) 847-7809
(512) 353-1219 facsimile
1
APPENDIX C
SUPREME COURT DENIAL ON
PETITION FOR WRIT OF
MANDAMUS
IN THE SUPREME COURT OF TEXAS
444444444444
NO . 15-0632
444444444444
IN RE SHANNON DORN ET AL., RELATORS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR WRIT OF MANDAMUS
4444444444444444444444444444444444444444444444444444
JUSTICE DEVINE , joined by JUSTICE LEHRMANN , dissenting from the denial of the petition
for writ of mandamus.
I would have granted the writ of mandamus. The City of San Marcos disregarded its own
laws regarding charter amendments, ignoring the legislative prerogative of the people through
citizen-initiated petitions. This is a power protected by our laws,1 our precedent,2 and the City’s own
Charter.3 Here, the City Clerk of San Marcos refused to review the signatures on a petition calling
for a charter amendment. The Clerk reasoned that the petition was invalid because the signatures
were not accompanied by any oath or affirmation confirming their authenticity. Because neither the
City Charter nor Texas law imposes this requirement, I believe the City Clerk should have been
directed to review the signatures on the petition.
1
See T EX . E LEC . C O D E § 277.001–.004.
2
See, e.g., In re Woodfill, __ S.W .3d __, __, 2015 W L 4498229, at *1 (Tex. 2015) (per curiam).
3
See San Marcos, Charter, art. XII, § 11 (“Amendments to this Charter may be framed and submitted to the
voters of the city in the manner provided by state law.”).
The City claims the petition does not satisfy section 6.03 of the City’s Charter. This section,
however, pertains exclusively to petitions regarding ordinances:
Initiative petition papers shall contain the full text of the proposed legislation in the
form of an ordinance, including a descriptive caption. Referendum petition papers
shall contain a sufficient description of the ordinance sought to be referred to identify
it, or if the ordinance has been passed by the council, the full text of the ordinance
sought to be referred shall be included in such papers. Before signatures on any
petition paper may be counted, one of the signers of such petition paper, a qualified
voter, shall make oath or affirmation before the city clerk or any other officer
competent to administer oaths or affirmations, that the statements made therein are
true, that each signature to the paper appended is the genuine signature of the person
whose name purports to be signed thereto, and that such signatures were placed
thereon in that person’s presence.
San Marcos, Charter, art. VI, § 3 (emphasis added). Any requirement that signatures on petitions
be verified applies only to citizen-initiated legislation on ordinances. Indeed, the Charter does not
contemplate these provisions applying to anything else. Just one example: under the Charter, if an
initiative petition calls for the adoption of the ordinance, the City may choose between passing the
ordinance itself or submitting it to a vote. Id. art. VI, § 4(a). If a referendum petition calls for the
repeal of an ordinance, the City may either repeal the ordinance itself, or call an election. Id. art. VI,
§ 4(b). But because charter amendments always require an election—the City cannot amend the
charter on its own—this section obviously does not apply to charter amendments. TEX . ELEC. CODE
§ 9.004; San Marcos, Charter, art. XII, § 11.
When it comes to Charter amendments, the Charter relies solely on state law to define the
proper procedure: “Amendments to this Charter may be framed and submitted to the voters of the
city in the manner provided by state law.” San Marcos, Charter, art. XII, § 11. State law, however,
does not require the verification the City Clerk demands. “The governing body shall submit a
2
proposed charter amendment to the voters for their approval at an election if the submission is
supported by a petition signed by a number of qualified voters of the municipality equal to at least
five percent of the number of qualified voters of the municipality . . . .” TEX . LOC. GOV ’T CODE
§ 9.004(a). The Election Code, in turn, specifies the requirements “[f]or a petition signature to be
valid.” TEX . ELEC. CODE § 277.002. The verification requirement the City argues for is not one of
the statutorily-imposed requirements.
In other words, state law does not impose these verification requirements, and the City
Charter relies solely on state law for the charter-amendment process. No literal reading of the
Charter allows the criteria of section 6.03 to be applied to charter amendments. Indeed, mere months
ago, the Court recognized a distinction exists between city charter requirements for citizen-initiated
charter amendments as opposed to ordinances. See Dacus v. Parker, __ S.W.3d __, __, 2015 WL
3653295, at *6 (Tex. 2015) (“[A]lthough the Houston charter provides no means for amending the
charter, the Texas Local Government Code does.”).
The Court has long held that laws regarding citizen-initiated legislation “should be liberally
construed in favor of the power reserved” to the people. In re Woodfill, __ S.W.3d at __, 2015 WL
4498229, at *6 (quoting Taxpayers’ Ass’n of Harris Cnty. v. City of Houston, 105 S.W.2d 655, 657
(Tex. 1937)). This case is no different. Moreover, the Election Code disfavors local technicalities
that hamper the people’s right to amend their charter: “Any requirements for the validity or
verification of petition signatures in addition to those prescribed by this chapter that are prescribed
by a home-rule city charter provision or a city ordinance are effective only if the charter provision
or ordinance was in effect September 1, 1985.” TEX . ELEC. CODE § 277.004. Simply put, the City
3
cannot amend its charter to impose the requirements the City Clerk demands, let alone impose them
here.
Though the deadline for ordering elections passed, see TEX . ELEC. CODE § 3.005(c); In re
Woodfill, __ S.W.3d at __ n.11, 2015 WL 4498229, at *5 n.11, the people of San Marcos were not
without a remedy. The City should not be able to avoid its duty under the Charter—indeed, under
Texas law—merely because it failed to timely order the election. If, as the Election Code states,
“[f]ailure to order a general election does not affect the validity of the election,” TEX . ELEC. CODE
§ 3.007, then neither should a late order in this case.
Here, a district court determined the City Clerk must review the petition signatures and
perform her ministerial duty. Rather than comply, the City initiated an interlocutory appeal, assuring
that the deadline would pass before relief could be obtained. I would not permit a city to use a
directory deadline in the Election Code in this manner to either avoid a ministerial duty or thwart the
will of the people. When the Texas Election Code and Local Government Code, as well as the City’s
own Charter, require the City to act, the City may not hide behind the statutory deadline. Indeed,
“[t]he right to vote is so fundamental in our form of government that it should be as zealously
safeguarded as are our natural rights,” and election statutes must be interpreted “in favor of that
right.” Thomas v. Groebl, 212 S.W.2d 625, 630 (Tex. 1948). In Woodfill, we required a city to
comply with its duties before the deadline, see In re Woodfill, __ S.W.3d at __ , 2015 WL 4498229,
at *1, and I would have required compliance here as well.
Though the deadline does not remove a remedy, it does foreclose any adequate remedy by
appeal. See In re Williams, __ S.W.3d __, at __, 2015 WL 4931372, at *3 (Tex. 2015) (per curiam);
4
In re Woodfill, __ S.W.3d at __ , 2015 WL 4498229, at *6. Because we did not act, the voters were
denied any timely relief.
As we have held before, a City’s “refusal to submit the proposed amendment[] to the vote
of the people thwarts not only the legislative mandate” of the Local Government Code, but also “the
will of the public.” Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980). This
case is no different. I would have granted the petition for mandamus relief and directed the City
Clerk to count the signatures. Accordingly, I respectfully dissent from the denial of the petition for
writ of mandamus.
________________________
John P. Devine
Justice
Opinion Delivered: September 4, 2015
5