                                                                                      ACCEPTED
                                                                                  03-15-00518-CV
                                                                                          7144477
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                             9/30/2015 1:05:10 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
      _______________________________________________________
                                                   9/30/2015 1:05:10 PM
                                                            JEFFREY D. KYLE
                     CITY OF SAN MARCOS, TEXAS                   Clerk
                                    Appellant

                                     v.

     SAM BRANNON, COMMUNITIES FOR TEXAS THRIVING
  WATER FLUORIDE-FREE SAN MARCOS, MORGAN KNECHT AND
                    KATHLEEN O’CONNELL
                                   Appellee
    ________________________________________________________
     On Appeal from the 274th Judicial District Court of Hays County, Texas
                  Honorable R. Bruce Boyer, Judge Presiding
                     Trial Court Cause Number 15-1266
_________________________________________________________________

                       APPELLANT’S BRIEF
__________________________________________________________________
                                     MCKAMIE KRUEGER, LLP
                                     941 Proton Rd.
                                     San Antonio, Texas 78258
                                     210.546.2122
                                     210.546.2130 (Fax)

                                     William M. McKamie
                                     State Bar No. 13686800
                                     mick@mckamiekrueger.com

                                     CITY ATTORNEY
                                     CITY OF SAN MARCOS, TEXAS
                                     512.393.8153
                                     Fax 512.393.3983

ORAL ARGUMENT REQUESTED
Michael J. Cosentino
State Bar No. 04849600
mcosentino@sanmarcostx.gov
ATTORNEYS FOR APPELLANT




ii
                   IDENTITY OF PARTIES & COUNSEL

      In order that the members of this Court may determine disqualification and
recusal under the Texas Rules of Appellate Procedure, Appellant certifies that the
following is a complete list of the parties, attorneys, and other persons with a
financial interest in the outcome of this lawsuit:

Appellant:                                    Attorneys for Appellant:
City of San Marcos, Texas                     William M. McKamie
                                              State Bar No. 13686800
                                              McKamie Krueger, LLP
                                              941 Proton Road
                                              San Antonio, Texas 78258
                                              210.546.2122
                                              210.546.2130 (Fax)

                                              Michael J. Cosentino
                                              State Bar No. 04849600
                                              City Attorney’s Office
                                              630 East Hopkins Street
                                              San Marcos, Texas 78666
                                              512.393.8150
                                              855.749.2846 (Fax)

Appellees:                                    Attorneys for Appellees:
Morgan Knecht                                 Craig F. Young
                                              108 E. San Antonio
                                              San Marcos, Texas 78666
                                              512.847.7809
                                              512.393.1212 (Fax)
                                              cyoung@lawyer.com

Sam Brannon                                   Lynn Peach
                                              147 S. Guadalupe, Suite 101
                                              San Marcos, Texas 78666
                                              512.393.9991
                                              888.428.0468 (Fax)



                                        iii
Kathleen O’Connell and Communities          Brad Rockwell
for Thriving Water-Fluoride Free San        707 Rio Grande, Ste. 200
Marcos                                      Austin, Texas 78701
                                            SBN 17129600
                                            brad@LF-lawfirm.com
                                            512-469-6000
                                            512-482-9346 (fax)




                                       iv
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL ................................................................ iii

INDEX OF AUTHORITIES................................................................................... vii

STATEMENT OF THE CASE ..................................................................................1

STATEMENT REGARDING ORAL ARGUMENT ............................................... 3

ISSUES PRESENTED FOR REVIEW ..................................................................... 3

         Issue 1: The trial court’s denial of the City’s Plea to the Jurisdiction is
                  error, because mandamus relief related to elections must be
                  presented to the appellate courts in original proceeding, not a trial
                  court.

         Issue 2: The trial court’s denial of the City’s Plea to the Jurisdiction is
                  error, because a public official is a necessary party to mandamus,
                  and Appellees failed to name a public official as a party.

STATEMENT OF FACTS ........................................................................................3

SUMMARY OF THE ARGUMENT ........................................................................ 3

ARGUMENT & AUTHORITIES ............................................................................. 4

Issue 1: The trial court’s denial of the City’s Plea to the Jurisdiction is error,
because mandamus relief related to elections must be presented to the appellate
courts in original proceeding, not a trial court ........................................................... 4

Issue 2: The trial court’s denial of the City’s Plea to the Jurisdiction is error,
because a public official is a necessary party to mandamus, and Appellees failed to
name a public official as a party. ...............................................................................6

PRAYER ....................................................................................................................8

CERTIFICATE OF COMPLIANCE ......................................................................... 9

CERTIFICATE OF SERVICE ..................................................................................9
                                                             v
APPENDIX ..............................................................................................................11




                                                           vi
                                         INDEX OF AUTHORITIES

Cases
Bejarano v. Moody, 901 S.W. 2d 570 (Tex. App.—El Paso 1995, orig.
  proceeding), at page 571.........................................................................................5
Brooks v. Northglen Ass’n, 141 S.W. 3d 158 (Tex. 2004) ........................................7
In re Dorn, 2015 Tex. LEXIS 835, 58 Tex. Sup. Ct. J. 1629 (Tex. 2015) ................5
In re Dupont, 142 S.W.3d 528, 532 (Tex. App.—Fort Worth 2004, orig.
  proceeding) .............................................................................................................4
In re Link, 45 S.W.3d 149, 156 (Tex. App.—Tyler 2000, orig. proceeding) ............4
In re Palomo, 366 S.W.3d 193, 194 (Tex. 2012) (orig. proceeding) ........................5
In re Triantaphyllis, 68 S.W.3d 861, 869–70 (Tex. App.—Houston [14th Dist.]
  2002, orig. proceeding [mand. denied]) .................................................................4
In re Vela, 399 S.W.3d 265, 266 (Tex. App.—San Antonio 2012, orig. proceeding)
   ................................................................................................................................4
In re Woodfill, 2015 Tex. LEXIS 686, 58 Tex. Sup. Ct. J. 1525 (Tex. 2015, orig.
  proceeding) .............................................................................................................4
Sears v. Bayoud, 786 S.W.2d 248, (Tex. 1990).........................................................5
Strachan v. Lanier, 867 S.W.2d 52 (Tex.App.—Houston [1st Dist.] 1993, orig.
  proceeding...............................................................................................................5

Rules
Tex. R. Civ. P. 39 .......................................................................................................7
Statutes
Local Government Code §9.004 ...............................................................................6
Texas Election Code § 277.003 .................................................................................6
Texas Election Code Section 273.061 .......................................................................4




                                                                vii
                            CASE NO. 03-15-00518-CV

                  IN THE THIRD COURT OF APPEALS
                           AUSTIN, TEXAS
       _______________________________________________________

                        CITY OF SAN MARCOS, TEXAS
                                       Appellant

                                           v.

     SAM BRANNON, COMMUNITIES FOR TEXAS THRIVING
  WATER FLUORIDE-FREE SAN MARCOS, MORGAN KNECHT AND
                    KATHLEEN O’CONNELL
                                   Appellee
    ________________________________________________________
     On Appeal from the 274th Judicial District Court of Hays County, Texas
                  Honorable R. Bruce Boyer, Judge Presiding
                     Trial Court Cause Number 15-1266
_________________________________________________________________

                       APPELLANT’S BRIEF
__________________________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

      NOW COMES Appellant, CITY OF SAN MARCOS, TEXAS (“City”), and

submits this appellant’s brief. For clarity, unless otherwise noted, the Appellant

shall be referred to as the “City,” the Appellees shall retain that reference.

                          STATEMENT OF THE CASE

      This case concerns a dispute regarding the validity of a petition filed with

the City of San Marcos City Clerk on April 2, 2015 to place a proposed

amendment to the City Charter on the ballot in a special election on November 3,

                                           1
2015. On May 5, 2015, the City Clerk advised the City Council, sitting in Regular

Meeting, that the petition could not be certified as having the requisite number of

verified signatures of qualified voters of the City.

       San Marcos filed this case in district court, seeking a declaratory judgment

that a petition circulated and filed by Defendants and Counter-claimants to place

a proposed amendment to the San Marcos City Charter on the ballot at an

election in November 2015 is void (CR:4).

       A month later, Sam Brannon, Kathleen O’Connell, and Communities For

Thriving Water – Fluoride Free San Marcos (“Communities”) filed their Original

Answers and Counterclaims requesting, among other things, a writ of mandamus

to compel the City to place the proposed charter amendment on the ballot at the

November 3, 2015 municipal election (CR:20, 35).

       All pending counterclaims for mandamus relief in this case are based on

the contention that the City of San Marcos has a non-discretionary duty imposed

by law -- Section 9.004 of the Texas Local Government Code -- to place their

proposed charter amendment on the November 3, 2015 ballot. The City Clerk

was not named as a respondent, was not served with process, and had no

opportunity to appear as a party in the case. No other public official was named

as a respondent.

       On July 29, the City filed its Plea to the Jurisdiction primarily based upon

                                           2
the ground that in election matters, the Texas appellate courts, not the district

court, have exclusive jurisdiction over mandamus in election matters. (CR:49).

       After hearing on the Plea to Jurisdiction on August 5, 2015, the Court

denied the Plea by Order dated August 12. (CR:120).

       The City timely filed Notice of Accelerated Appeal. (CR:121)

              STATEMENT REGARDING ORAL ARGUMENT

      Oral argument may edify the Court, and is requested by Appellant.

However, the issues before the Court are neither novel nor complex.

                     ISSUES PRESENTED FOR REVIEW

      Issue 1: The trial court’s denial of the City’s Plea to the Jurisdiction is
               error, because mandamus relief related to elections must be
               presented to the appellate courts in original proceeding, not a trial
               court.

      Issue 2: The trial court’s denial of the City’s Plea to the Jurisdiction is
               error, because a public official is a necessary party to mandamus,
               and Appellees failed to name a public official as a party.

                            STATEMENT OF FACTS

      Relevant facts appear in the Statement of the Case. The issues presented are

based in law, as there are few if any disputed material facts.

                       SUMMARY OF THE ARGUMENT

      The trial court lacks subject matter jurisdiction over Appellees’

Counterclaim seeking mandamus against the City of San Marcos because (1)

jurisdiction to consider mandamus involving elections lies solely with the appellate
                                          3
courts, not a trial court, and (2) a public official is a necessary party-respondent in

a mandamus action, and Appellees failed to name a public official as a party in this

case. The trial court’s denial of the City’s timely presented Plea to the Jurisdiction

is error, and the Counterclaim for mandamus must be dismissed.

                       ARGUMENT AND AUTHORITIES

Issue 1:        The trial court’s denial of the City’s Plea to the Jurisdiction is
                error, because mandamus relief related to elections must be
                presented to the appellate courts in original proceeding, not a
                trial court.

      Section 273.061 of the Texas Election Code expressly authorizes both the

Supreme Court and the Courts of Appeals to 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.” These appellate courts

have granted mandamus relief in numerous cases where the duties related to

elections have not been performed. See, e.g., In re Vela, 399 S.W.3d 265, 266

(Tex. App.—San Antonio 2012, orig. proceeding); In re Dupont, 142 S.W.3d 528,

532 (Tex. App.—Fort Worth 2004, orig. proceeding); In re Triantaphyllis, 68

S.W.3d 861, 869–70 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding

[mand. denied]); In re Link, 45 S.W.3d 149, 156 (Tex. App.—Tyler 2000, orig.

proceeding); In re Woodfill, 2015 Tex. LEXIS 686, 58 Tex. Sup. Ct. J. 1525 (Tex.

2015, orig. proceeding).
                                          4
      Also, appellate courts have exercised jurisdiction in original proceedings

seeking mandamus in election matters, yet denied relief. See, e.g., In re Palomo,

366 S.W.3d 193, 194 (Tex. 2012) (orig. proceeding); In re Dorn, 2015 Tex. LEXIS

835, 58 Tex. Sup. Ct. J. 1629 (Tex. 2015).

      Appellees’ filed their counterclaim in the district court, which although a

court of general jurisdiction, is not mentioned in the Election Code or elsewhere as

having the express authority to issue mandamus. While it is true that there are

some reported examples of district courts assuming jurisdiction in election-related

mandamus actions, jurisdiction was not challenged in those cases.

      To the contrary, the El Paso Court of Appeals held in Bejarano v. Moody,

901 S.W. 2d 570 (Tex. App.—El Paso 1995, orig. proceeding), at page 571:

      “Mandamus relief lies exclusively with the appellate courts of our state, not

with its district courts,” citing Sears v. Bayoud, 786 S.W.2d 248, (Tex. 1990) and

Strachan v. Lanier, 867 S.W.2d 52 (Tex.App.—Houston [1st Dist.] 1993, orig.

proceeding.

      The Appellees simply sought mandamus in the wrong court, and jurisdiction

fails. [Apparently having discovered their error, on August 20, 2015, three of

Appellees joined Shannon Dorn as Relators in an original proceeding seeking

mandamus in the Texas Supreme Court.          The application was denied by the

Supreme Court on September 4.] See Appendix “G”.


                                         5
      Please note that each of the above-cited mandamus cases are brought against

an individual official, named as the responding party.

Issue 2:        The trial court’s denial of the City’s Plea to the Jurisdiction is
                error, because a public official is a necessary party to mandamus,
                and Appellees failed to name a public official as a party.

      On April 2, 2015, a petition was submitted to the City of San Marcos,

seeking an amendment to the City’s Home Rule Charter. Local Government Code

§9.004 (a) provides for an election on such a petition if it is “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 smaller.” In

San Marcos, it is undisputed that the requisite number of valid signatures on such a

petition is 1,090 (CR: 19).

      The City Clerk is responsible for verifying the signatures on a charter

amendment petition. On May 5, 2015, the City Clerk reported to the City Council

that the petition was insufficient and could not be certified as being signed by a

sufficient number of qualified voters of the city. It is most common that the City

Clerk or City Secretary perform that function, due to that office’s many statutory

responsibilities involving elections and voting procedures. This is acknowledged

in Election Code § 277.003, which reads in part: “. . . the city secretary or other

authority responsible for verifying the signatures . . . .” (emphasis added). In San

Marcos, there is no “authority” other than the City Clerk.


                                          6
      The duty of the governing body to submit a proposed charter amendment to

the voters under Local Government Code §9.004 does not arise unless and until a

petition for such amendment has been signed by the required number of verified

signatures of qualified voters of the City.

      In the Counterclaim, Appellees allege that the City Clerk’s failure to certify

to the City Council the requisite number of verified signatures to have the charter

amendment election go forward was improper, and request the trial court to order

the election. The gravamen of their claim is that the City Clerk must be compelled

to certify to the City Council that the signatures are valid.

      Because the only official upon whom a duty in connection with the charter

amendment petition has been placed is the City Clerk, the City Clerk is the only

party subject to mandamus. Therefore, the City Clerk is the necessary party-

respondent to the attempted counterclaim. Tex. R. Civ. P. 39.

      Appellees did not name the City Clerk as a respondent to the Counterclaim

for mandamus relief. The City Clerk was not served with process, nor given the

opportunity to appear.       Therefore, the only necessary party to Appellees’

mandamus action was not sued. See, Brooks v. Northglen Ass’n, 141 S.W. 3d 158

(Tex. 2004).

      Further, Appellees failed to name the Mayor and Members of the City

Council as respondents to the Counterclaim for mandamus. As discussed above,


                                              7
the governing body’s duties with regard to submission of a charter amendment to

the electorate do not arise unless and until the City Clerk has certified that the

petition has been verified as signed by a sufficient number of qualified voters.

Nonetheless, to obtain the mandamus relief sought (an order of charter amendment

special election on November 3, 2015), the Councilmembers are necessary parties-

respondent. This argument was presented directly to the trial court at the hearing

conducted on August 12, 2015. (RR3: 5-6 & 10-15)

      The Court lacks jurisdiction.

                                      PRAYER

      The City prays this Honorable Court reverse and render in favor of the City

and against Appellees, and dismiss Appellees’ counterclaim for lack of

jurisdiction.

                                        Respectfully submitted,

                                        MCKAMIE KRUEGER, LLP
                                        941 Proton Rd.
                                        San Antonio, Texas 78258
                                        210.546.2122
                                        210.546.2130 (Fax)

                                        /s/: William M. McKamie
                                        WILLIAM M. McKAMIE
                                        State Bar No. 13686800
                                        mick@mckamiekrueger.com

                                        and

                                        CITY ATTORNEY
                                         8
                                         CITY OF SAN MARCOS, TEXAS
                                         512.393.8153
                                         Fax 512.393.3983

                                         /s/: Michael J. Cosentino
                                         Michael J. Cosentino
                                         State Bar No. 04849600
                                         mcosentino@sanmarcostx.gov

                                         ATTORNEYS FOR DEFENDANT
                                         CITY OF SAN MARCOS, TEXAS

                        CERTIFICATE OF COMPLIANCE
I certify that this document is in compliance with Tex. R. App. P. 9.4 (e) and (i). It
contains 1,157 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.

                                       /s/ William M. McKamie______________
                                       WILLIAM M. McKAMIE

                         CERTIFICATE OF SERVICE

      I certify that a copy of Appellant’s Brief was served in accordance with the
Texas Rules of Appellate Procedure as indicated below on September 30, 2015
addressed to:

Craig F. Young
108 E. San Antonio
San Marcos, Texas 78666
512.847.7809
512.393.1212 (Fax)
cyoung@lawyer.com
Attorney for Morgan Knecht

Lynn Peach
147 S. Guadalupe, Suite 101
San Marcos, Texas 78666
512.393.9991
888.428.0468 (Fax)
lynn@lynnpeachlaw.com
                                          9
Attorney for Sam Brannon

Brad Rockwell
707 Rio Grande, Ste. 200
Austin, Texas 78701
SBN 17129600
brad@LF-lawfirm.com
512-469-6000
512-482-9346 (fax)
Attorney for Kathleen O'Connell and
Communities for Thriving Water-Fluoride
Free San Marcos

                                   /s/ William M. McKamie____
                                   WILLIAM M. McKAMIE




                                     10
                          CASE NO. 03-15-00518-CV

                   IN THE THIRD COURT OF APPEALS
                            AUSTIN, TEXAS
        _______________________________________________________

                       CITY OF SAN MARCOS, TEXAS
                                      Appellant

                                        v.

        SAM BRANNON, COMMUNITIES FOR TEXAS THRIVING
     WATER FLUORIDE-FREE SAN MARCOS, MORGAN KNECHT AND
                       KATHLEEN O’CONNELL
                                      Appellee
       ________________________________________________________
     On Appeal from the 274th Judicial District Court of Hays County, Texas
                  Honorable R. Bruce Boyer, Judge Presiding
                     Trial Court Cause Number 15-1266
__________________________________________________________________

                     APPELLANT’S APPENDIX
__________________________________________________________________

A.   Counterclaims of Communities for Thriving Water-Fluoride Free San
Marcos, and Kathleen O’Connell filed July 17, 2015(CR: 20)

B.     Counterclaims filed on behalf of Sam Brannon, filed July 17, 2015 (CR: 35)

C.    First Amended Counterclaims of Communities for Thriving Water-Fluoride
Free San Marcos, and Kathleen O’Connell, filed August 4, 2015 (CR: 56)

D.   Counter-Defendant City of San Marcos’ Plea to the Jurisdiction on
Counterclaims for Mandamus Relief, filed July 29, 2015 (CR: 49)

E.     Response of Counterclaimants Communities for Thriving Water-Fluoride
Free San Marcos, and Kathleen O’Connell to the City of San Marcos’ Plea to the
Jurisdiction, filed August 5, 2015 (CR: 72)


                                        11
F.   Order Denying City’s Plea to the Jurisdiction on Counterclaims for
Mandamus Relief, dated August 12, 2015

G.     Case No. 15-0632; In re Shannon Dorn, Kathleen O’Connell, Communities
for Thriving Waters-Fluoride-Free San Marcos, and Morgan Knecht, Supreme
Court of Texas Denial of Petition for Writ of Mandamus; Concurring Opinion by
Justice Brown and Justice Green, dated September 4, 2015

H.     Reporter’s Record, Volume 3, Pages 5-6 and 10-15; excerpts from the Plea
to Jurisdiction Hearing held August 12, 2015; 274th Judicial District Court, Hays
County.




                                       12
                                                                  FILED
                                                                  7/17/2015 4:30:22 PM
                                                                  Beverly Crumley
                                                                  District Clerk
                                                                  Hays County, Texas
                                  CASE NO. 15-1266

CITY OF SAN MARCOS, TEXAS,                     §
   Plaintiff and Counter-Defendant,            §
                                               §   IN THE DISTRICT COURT
v.                                             §
                                               §
COMMUNITIES FOR THRIVING                       §
WATER-FLUORIDE FREE SAN                        §
MARCOS, AND KATHLEEN                           §   OF HAYS COUNTY, TEXAS
O’CONNELL                                      §
  Defendants and Counter-claimants,            §
                                               §
and                                            §
                                               §   274TH JUDICIAL DISTRICT
SAM BRANNON and MORGAN                         §
KNECHT,                                        §
  Defendants.                                  §


                       COUNTERCLAIMS
             OF COMMUNITIES FOR THRIVING WATER-
      FLUORIDE FREE SAN MARCOS, AND KATHLEEN O’CONNELL

EXPEDITED CONSIDERATION IS REQUESTED.

TO THE HONORABLE JUDGE OF THE COURT:

       COME NOW Communities for Thriving Water Fluoride-Free San Marcos

(“Communities”), and Kathleen O’Connell (collectively “Defendants” or

“Counterclaimants”), and file these Counterclaims against Plaintiff and Counter-

Defendant City of San Marcos, and in support therewith, respectfully offer the following:




                                      Appendix - A
                                                                                    000020
                               I.
          NATURE OF THE CASE AND DISCOVERY CONTROL PLAN

    1.   Counterclaimants intend that discovery be conducted under Level 3, Texas

         Rule of Civil Procedure 190.4.

    2.   Communities and Kathleen O’Connell submitted to Plaintiff and Counter-

         Defendant City of San Marcos a Petition for an amendment to the Charter of

         the City of San Marcos to bar the addition of fluoride to the San Marcos public

         water supply (“Petition”) on April 1, 2015. Substantially more than 5% of the

         voters within the City of San Marcos signed this Petition. The City of San

         Marcos, however, has refused to submit the proposed charter amendment to the

         voters as required by section 9.004(a) of the Texas Local Government Code.

    3.   The San Marcos City Clerk has refused to even count the signatures for the

         Petition, taking the position that all the signatures are “invalid” because “none

         of the petition papers contains an oath or affirmation.” As a matter of Texas

         statute and the San Marcos City Charter, there is no requirement that petitions

         for a City Charter amendment contain an oath or affirmation. Such a

         requirement in this situation would be a violation of Article I, Section 2 and

         Article XI Section 5 of the Texas Constitution as well as a violation of the First

         and Fourteenth Amendments of the United States Constitution.

    4.   The City of San Marcos has filed a hysterical and punitive lawsuit against the

         Defendants, and made allegations that are known to the City to be false. San

                                            2
 
                                                                                   000021
         Marcos has asked the Court to award it attorney’s fees for the costs San

         Marcos has incurred filing suit against Defendants.

    5.   Communities and Kathleen O’Connell as Counterclaimants seek a writ of

         mandamus and injunction ordering the Counter-Defendant to place the charter

         amendment on the ballot for the November 3, 2015 election. They also seek

         related declaratory relief.

    6.   Under the authority of §37.008 of the Texas Civil Practice and Remedies Code,

         Counterclaim Plaintiffs hereby sue to recover their costs and reasonable and

         necessary attorney’s fees in both the trial of this case and in connection with

         any subsequent appeal.

    7.   Counterclaimants seek monetary relief of $100,000 or less and nonmonetary

         injunctive, declaratory and mandamus relief.

    8.   The Texas Election Code requires general elections to be ordered not later than

         the 78th day before Election Day. Applied here, the deadline for San Marcos to

         order an election for the proposed Charter amendments is August 17, 2015, one

         month from today.

    9.   For this reason, expedited consideration is requested.


                                         II.
                                       PARTIES

10.      Counterclaimant Communities for Thriving Waters Fluoride-Free San Marcos

         is an association created to cause Counter-Defendant San Marcos to stop

         adding fluoride to its public water supply. Communities submitted the Petition

                                            3
 
                                                                                    000022
      to amend the San Marcos charter to prohibit fluoridation. Most of

      Communities members are residents of San Marcos, registered and qualified

      voters, and have signed the Petition. Most of the members of Communities

      wish to vote for the Charter amendment in an election. Most of the members

      are customers of San Marcos’ public water system. San Marcos initiated the

      instant lawsuit by filing suit against Communities.

11.   Counterclaimant Kathleen O’Connell is a member of Communities and has

      submitted the Petition to San Marcos and she has been sued by San Marcos for

      doing so. San Marcos initiated the instant lawsuit by filing suit against

      Kathleen O’Connell.

12.   Counter-Defendant City of San Marcos is a home rule Texas City and is

      represented by the City Attorney in this lawsuit. San Marcos is the initial

      Plaintiff in this lawsuit, having sued its citizens for submitting a City Charter

      Amendment petition and asking the Court to judge these citizens liable for the

      attorney’s fees resulting from the City’s lawsuit.

                                        III.
                              JURISDICTION AND VENUE


13.   This Court has subject matter jurisdiction pursuant to Texas Civil Practice and

      Remedies Code section 32.003, Texas Government Code section 24.008, and

      Article V, section 8 of the Texas Constitution.

14.   Venue is proper in Hays County, Texas, under Sections 15.002 and 15.004 of

      the Texas Civil Practice and Remedies Code.

                                         4
 
                                                                                  000023
                                              IV.
                                             FACTS

15.   Counterclaimants are aware of scientific research indicating that fluoridation of

      the public water supply is detrimental to human health. Hundreds of cities

      agree and have decided to stop adding fluoride to their public drinking water.

      Among the Texas cities that have stopped adding fluoride to their waters are:

      College Station, Alamo Heights, Elgin, and Lago Vista. Other cities who no

      longer fluoridate their public water supply include Albuquerque, New Mexico;

      Honolulu, Hawaii; Colorado Springs, Colorado; Spokane, Olympia, and

      Bellingham, Washington; Davis, Redding, Santa Barbara, and Santa Cruz,

      California; Portland, Oregon; Fairbanks and Juneau, Alaska; and Quebec City,

      Windsor, and Calgary, Canada.

16.   The City of College Station estimated a savings to its taxpayers of about

      $40,000 attributable to the discontinuation of fluoridation.

17.   Counterclaimants began discussions with San Marcos city officials in the year

      2013 in an attempt to convince them to discontinue fluoridation of San Marcos

      water.

18.   On August 13, 2013, the San Marcos Executive Director of Public Services,

      Tom Taggart, sent a memo to the San Marcos Mayor, City Council, and City

      Clerk summarizing the requests being made by Counterclaimants. Among

      other things, the Mayor, City Council, and City Clerk were informed by their

      staff that Counterclaimant O’Connell’s and Communities’ goal was to “cease


                                         5
 
                                                                               000024
      fluoridation of the drinking water supply in San Marcos” and to stop “the

      addition of fluoride to the Public Drinking water supply.” Mr. Taggart also

      informed the Mayor, City Council and City Clerk that Counterclaimants

      wished to see the “Fluoride feed equipment.”

19.   On August 13, 2013, the San Marcos Executive Director of Public Services

      also informed the Mayor, City Council, and City Clerk that “a policy change

      could result in the discontinuation of the treatment at any time” and that the

      effect on the budget would be a savings in the annual cost to San Marcos of

      fluoridation which amounted to $14,000.

20.   Counterclaimants have never asked San Marcos to remove naturally-occurring

      fluoride in the drinking water.

21.   On April 12, 2015, Counterclaimants submitted to San Marcos a Petition with

      over 2,000 signatures for a Charter Amendment to be placed on the ballot for

      the consideration of voters. Counterclaimants pre-verified that at least 1,634 of

      these signatures were of valid San Marcos voters. This number of voters

      significantly exceeds 5% of the number of San Marcos registered voters.

22.   If approved by the voters, the Charter Amendment would preclude San Marcos

      from adding fluoride to its public water supply. The Petition was titled a

      “PETITION to BAN FLOURIDATION in CITY OF SAN MARCOS

      WATER.” The Charter language proposed by the Petition read:

            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

                                         6
 
                                                                                000025
               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.

23.   Nowhere in the Petition was there any request or requirement that San Marcos

      remove naturally-occurring fluoride that sometimes is found in its source of

      water.

24.   On April 7, 2015, Counterclaimant O’Connell and Defendant Brannon met

      with San Marcos City Manager Jared Miller. Mr. Miller asked multiple

      questions about removing naturally-occurring fluoride. O’Connell and

      Brannon responded to each of his questions, explaining carefully that neither

      they nor Communities, nor the Petition ever mentioned or requested that

      naturally-occurring fluoride be removed from San Marcos water.

25.   The San Marcos City Clerk refused to even count the signatures on the Petition

      submitted to her. On May 6, she announced that “none of the petition papers

      contains an oath or affirmation [and therefore] none of the signatures may be

      counted.”

26.   On May 18, Communities and O’Connell sent a letter 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.

27.   This request was again made on June 16, 2015.



                                           7
 
                                                                                   000026
28.   Counterclaimants made demand on the City of San Marcos to submit the

      proposed charter amendment to the voters as required by section 9.004(a) of

      the Texas Local Government Code. But the City of San Marcos has refused.

29.   On or about June 18, 2015, the City of San Marcos filed suit against

      Counterclaimants, Sam Brannon, and Morgan Knecht seeking declaratory

      relief and a judgment asking Kathleen O’Connell, Sam Brannon, Morgan

      Knecht, and Communities for Thriving Waters – Fluoride Free San Marcos to

      pay the City’s attorney’s fees.

30.   The City seeks a declaration validating the position it took with regard to the

      alleged oath or affidavit requirement for City charter petitions.

31.   The City also alleged that the Petitioned charter amendment

            would prohibit the City of San Marcos from accepting …
            naturally fluoridated surface water and groundwater … forcing
            the City to find, finance and develop a new raw water supply or to
            design and install equipment at its surface water treatment plant
            and ground water wells in an attempt to remove all fluoride
            derivatives….

      San Marcos further alleged that the cost to the City of doing this would exceed

      $97 million.

32.   As a result of the filing of this lawsuit, these knowingly false allegations have

      been repeated by the news media as if they were true.

33.   The effect of these legally and factually baseless claims has been to cast the

      Counterclaimants and their work in a false light, harm their reputations, and




                                         8
 
                                                                                000027
      falsely prejudice the voters of San Marcos against this proposed Charter

      amendment.

                                    V.
                                 MANDAMUS

34.   Counterclaimants submitted to Counterdefendant City of San Marcos a Petition

      for a Charter amendment containing more than 1,634 valid signatures of

      qualified voters of the City of San Marcos, pursuant to section 277.002(a) of

      the Texas Election Code and section 9.004(a) of the Texas Local Government

      Code.

35.   The number of these qualified signatures exceeded the requirements of section

      9.004(a). Five percent of the number of qualified San Marcos voters is

      approximately 964.

36.   “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).

37.   The City of San Marcos had a non-discretionary ministerial duty to put the

      Charter amendment requested by the Petition on the ballot.

38.   By refusing to place the Charter amendment on the ballot, San Marcos abused

      its discretion.

39.   Counterclaimants are entitled to immediate mandamus relief. Without the

      issuance of a mandamus, Counterclaimants may not have a remedy at law.




                                        9
 
                                                                               000028
                                     VI.
                    INJUNCTION AGAINST VIOLATIONS
      OF ART. I, § 2 AND ART. IX, § 5 OF THE TEXAS CONSTITUTION

40.     The city charter petition process implements Article I, section 2 of the Texas

        Bill of Rights, which states that “All political power is inherent in the people.”

        Green v. City of Lubbock, 627 S.w.2d 868, 871 (Tex. App. – Amarillo 1982,

        writ ref’d n.r.e.).

41.     The system of petitioning for a charter amendment “has its historical roots in

        the people’s dissatisfaction with officialdom’s refusal to enact laws.” Green,

        627 S.W.2d at 871. It is “the exercise by the people of a power reserved to

        them.” Taxpayers’ Ass’n of Harris County v. City of Houston, 105 S.W.2d

        655, 657 (Tex. 1937).

42.     As a matter of constitutional law, all rights relating to submitting petitions for a

        vote on a charter amendment should be liberally construed in favor of the

        power reserved to the people. Taxpayers’ Ass’n, 105 S.W.2d at 657.

43.     The law has long been that city charter requirements for amending a charter by

        petition are different than the requirements for passing ordinances by initiative

        and referendum. See Edwards v. Murphy, 256 S.W.2d 470 (Tex. Civ. App. –

        Fort Worth 1953, dism’d).

44.     The San Marcos City Charter has only one section, 12.11, expressly defining

        the process for amending the City Charter. It is titled “Amending the City

        Charter” and reads in its entirety:



                                              10
 
                                                                                    000029
              Amendments to this Charter may be framed and submitted to the
              voters of the City in the manner provided by state law.

      (emphasis supplied).

45.   This section 12.11 Charter provision is consistent with Art. XI § 5 of the

      Texas Constitution which says the “amendment of charters is subject to such

      limitations as may be prescribed by the Legislature.”

46.   San Marcos has transgressed this constitutional provision by imposing

      signature validation requirements that are more onerous than what is

      specifically prescribed by the Legislature – e.g. which are more restrictive than

      and not consistent with Election Code section 277.002(a).

47.   With respect to the Counterclaimants’ fluoridation petition, San Marcos has

      taken the position that the criteria for establishing the validity of Charter

      amendment petitions is not found in state law, but rather in a section of the San

      Marcos Charter, section 6.03, which is not even mentioned by the Charter

      section 12.11 entitled “Amending the City Charter.” Section 6.03 references

      petitions for ordinances rather than Charter amendments.

48.   Because the submission of signatures verified under oath is required to place a

      citizen-initiated ordinance on the ballot, San Marcos takes the position that a

      similar oath or verification is required for a petition to amend the Charter.

49.   By adding this onerous requirement that State statutes do not prescribe, San

      Marcos violates Art. XI, § 5 of the Texas Constitution. By imposing onerous

      oath and verification requirements for signatures on petitions to amend the City


                                         11
 
                                                                                  000030
      Charter, San Marcos is diminishing the powers reserved to the people in

      violation of Article I, section 2 of the Texas Constitution.

50.   Counterclaimants ask that San Marcos be enjoined from denying their

      Constitutional right to seek amendment of the Charter by petition and that San

      Marcos be ordered to place Counterclaimants’ Charter amendment regarding

      fluoride on the ballot. See Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex.

      2011).


                                 VII.
                          DECLARATORY RELIEF


51.   Pleading in the alternative, if as San Marcos contends, City Charter section

      6.03 and/or Texas Election Code section 277.004 are correctly interpreted to

      require Counterclaimants to submit charter petitions that are affirmed under

      oath in order to establish the right to get a proposed charter amendment on the

      ballot, Counterclaimants seek a declaration pursuant to Chapter 37 of the Texas

      Civil Practice and Remedies Code that section 6.03 and section 277.004 as

      applied to Counterclaimants are invalid as inconsistent with the First and

      Fourteenth Amendments to the United States Constitution.

52.   There is no indication of fraud or invalidity of the 1,634 already-verified

      signatures that were submitted. In this context, to require these signatures to

      be submitted under oath would serve no rational purpose. A requirement for

      an oath or affirmation is not narrowly tailored to advance a compelling state

      interest.
                                         12
 
                                                                                000031
53.       Counterclaimants in addition seek a declaration that an ordinance putting the

          anti-fluoride charter amendment on the ballot would be valid.

54.       Counterclaimants in addition seek recovery from San Marcos of attorney’s fees

          and costs incurred before this Court and any appellate court pursuant to

          Chapter 37 of the Texas Civil Practice and Remedies Code.


                                        PRAYER


       For the reasons given above, Counterclaimants Communities for Thriving Waters

– Fluoride-Free San Marcos and Kathleen O’Connell respectfully ask the Court to grant

them the following: a writ of mandamus and injunction ordering Counter-Defendant City

of San Marcos to place Counterclaimants’ proposed Charter amendment on the

November 2015 election ballot. Additionally, but only in the event that the Court agrees

with San Marcos’ contention that City Charter section 6.03 and Texas Election Code

section 277.004 require Charter Petition signatures to be verified under oath,

Counterclaimants seek a declaration that Charter section 6.03 and Texas Election Code

section 277.004 are invalid as applied to Counterclaimants’ petition; attorney’s fees under

Texas Civil Practice and Remedies Code section 37.008; and any other relief to which

they may be entitled.

                                                        Respectfully submitted,


                                                        /s/ Brad Rockwell
                                                        Brad Rockwell
                                                        SBT No. 17129600

                                                        FREDERICK, PERALES,
                                            13
 
                                                                                     000032
         ALLMON & ROCKWELL, P.C.
         707 Rio Grande St., Ste. 200
         Austin, Texas 78701
         (512) 469-6000
         (512) 482-9346 facsimile
         brad@LF-lawfirm.com

         ATTORNEYS FOR KATHLEEN
         O’CONNELL AND
         COMMUNITIES FOR
         THRIVING WATER –
         FLOURIDE FREE SAN
         MARCOS




    14
 
                                   000033
                            CERTIFICATE OF SERVICE

By my signature, below, I certify that on July 17, 2015, a true and correct copy of the
foregoing document was served upon the City of San Marcos via e-mail, as indicated, and
by deposit in the U.S. mail, in accordance with the Texas Rules of Civil Procedure, on the
other parties.

                                                       /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 SAM BRANNON:
Lynn Peach
174 S. Guadalupe Street, No. 101
(512) 393-9991
(888) 428-0468 facsimile
lynn@lynnpeachlaw.com

FOR MORGAN KNECHT:
Morgan Knecht
235 Craddock Avenue
Unit B
San Marcos, Texas 78666
 




                                           15
 
                                                                                  000034
               FILED
               7/17/2015 3:35:28 PM
               Beverly Crumley
               District Clerk
               Hays County, Texas




Appendix - B

                                 000035
000036
000037
000038
000039
000040
000041
000042
000043
000044
000045
000046
000047
000048
                                                                 FILED
                                                                 8/4/2015 5:21:59 PM
                                                                 Beverly Crumley
                                                                 District Clerk
                                                                 Hays County, Texas
                                  CASE NO. 15-1266

CITY OF SAN MARCOS, TEXAS,                    §
   Plaintiff and Counter-Defendant,           §
                                              §    IN THE DISTRICT COURT
v.                                            §
                                              §
COMMUNITIES FOR THRIVING                      §
WATER-FLUORIDE FREE SAN                       §
MARCOS, AND KATHLEEN                          §    OF HAYS COUNTY, TEXAS
O’CONNELL                                     §
  Defendants and Counter-claimants,           §
                                              §
and                                           §
                                              §    274TH JUDICIAL DISTRICT
SAM BRANNON and MORGAN                        §
KNECHT,                                       §
  Defendants.                                 §


                FIRST AMENDED COUNTERCLAIMS
             OF COMMUNITIES FOR THRIVING WATER-
      FLUORIDE FREE SAN MARCOS, AND KATHLEEN O’CONNELL

EXPEDITED CONSIDERATION IS REQUESTED.

TO THE HONORABLE JUDGE OF THE COURT:

       COME NOW Communities for Thriving Water Fluoride-Free San Marcos

(“Communities”), and Kathleen O’Connell (collectively “Defendants” or

“Counterclaimants”), and file these First Amended Counterclaims against Plaintiff and

Counter-Defendant City of San Marcos, and in support therewith, respectfully offer the

following:




                                        Appendix - C
                                                                                   000056
                           I.
      NATURE OF THE CASE AND DISCOVERY CONTROL PLAN

1.   Counterclaimants intend that discovery be conducted under Level 3, Texas

     Rule of Civil Procedure 190.4.

2.   Communities and Kathleen O’Connell submitted to Plaintiff and Counter-

     Defendant City of San Marcos a Petition for an amendment to the Charter of

     the City of San Marcos to bar the addition of fluoride to the San Marcos public

     water supply (“Petition”) on April 1, 2015. Substantially more than 5% of the

     voters within the City of San Marcos signed this Petition. The City of San

     Marcos, however, has refused to submit the proposed charter amendment to the

     voters as required by section 9.004(a) of the Texas Local Government Code.

3.   The San Marcos City Clerk has refused to even count the signatures for the

     Petition, taking the position that all the signatures are “invalid” because “none

     of the petition papers contains an oath or affirmation.” As a matter of Texas

     statute and the San Marcos City Charter, there is no requirement that petitions

     for a City Charter amendment contain an oath or affirmation. Such a

     requirement in this situation would be a violation of Article I, Section 2 and

     Article XI Section 5 of the Texas Constitution as well as a violation of the First

     and Fourteenth Amendments of the United States Constitution.

4.   The City of San Marcos has filed a hysterical and punitive lawsuit against the

     Defendants, and made allegations that are known to the City to be false. San

                                        2

                                                                               000057
         Marcos has asked the Court to award it attorney’s fees for the costs San

         Marcos has incurred filing suit against Defendants.

    5.   Communities and Kathleen O’Connell as Counterclaimants seek a writ of

         mandamus and injunction ordering the Counter-Defendant to place the charter

         amendment on the ballot for the November 3, 2015 election. They also seek

         related declaratory relief.

    6.   Under the authority of §37.008 of the Texas Civil Practice and Remedies Code,

         Counterclaim Plaintiffs hereby sue to recover their costs and reasonable and

         necessary attorney’s fees in both the trial of this case and in connection with

         any subsequent appeal.

    7.   Counterclaimants seek monetary relief of $100,000 or less and nonmonetary

         injunctive, declaratory and mandamus relief.

    8.   The Texas Election Code requires general elections to be ordered not later than

         the 71st day before Election Day. Applied here, the deadline for San Marcos

         to order an election for the proposed Charter amendments is August 24, 2015.

    9.   For this reason, expedited consideration is requested.


                                         II.
                                       PARTIES

10.      Counterclaimant Communities for Thriving Waters Fluoride-Free San Marcos

         is an association created to cause Counter-Defendant San Marcos to stop

         adding fluoride to its public water supply. Communities submitted the Petition

         to amend the San Marcos charter to prohibit fluoridation. Most of

                                            3
 
                                                                                    000058
      Communities members are residents of San Marcos, registered and qualified

      voters, and have signed the Petition. Most of the members of Communities

      wish to vote for the Charter amendment in an election. Most of the members

      are customers of San Marcos’ public water system. San Marcos initiated the

      instant lawsuit by filing suit against Communities.

11.   Counterclaimant Kathleen O’Connell is a member of Communities and has

      submitted the Petition to San Marcos and she has been sued by San Marcos for

      doing so. San Marcos initiated the instant lawsuit by filing suit against

      Kathleen O’Connell.

12.   Counter-Defendant City of San Marcos is a home rule Texas City and is

      represented by the City Attorney in this lawsuit. San Marcos is the initial

      Plaintiff in this lawsuit, having sued its citizens for submitting a City Charter

      Amendment petition and asking the Court to judge these citizens liable for the

      attorney’s fees resulting from the City’s lawsuit.

                                        III.
                              JURISDICTION AND VENUE


13.   This Court has subject matter jurisdiction pursuant to Texas Civil Practice and

      Remedies Code section 32.003, Texas Government Code section 24.008, and

      Article V, section 8 of the Texas Constitution.

14.   Venue is proper in Hays County, Texas, under Sections 15.002 and 15.004 of

      the Texas Civil Practice and Remedies Code.

                                              IV.

                                         4
 
                                                                                  000059
                                             FACTS

15.   Counterclaimants are aware of scientific research indicating that fluoridation of

      the public water supply is detrimental to human health. Hundreds of cities

      agree and have decided to stop adding fluoride to their public drinking water.

      Among the Texas cities that have stopped adding fluoride to their waters are:

      College Station, Alamo Heights, Elgin, and Lago Vista. Other cities who no

      longer fluoridate their public water supply include Albuquerque, New Mexico;

      Honolulu, Hawaii; Colorado Springs, Colorado; Spokane, Olympia, and

      Bellingham, Washington; Davis, Redding, Santa Barbara, and Santa Cruz,

      California; Portland, Oregon; Fairbanks and Juneau, Alaska; and Quebec City,

      Windsor, and Calgary, Canada.

16.   The City of College Station estimated a savings to its taxpayers of about

      $40,000 attributable to the discontinuation of fluoridation.

17.   Counterclaimants began discussions with San Marcos city officials in the year

      2013 in an attempt to convince them to discontinue fluoridation of San Marcos

      water.

18.   On August 13, 2013, the San Marcos Executive Director of Public Services,

      Tom Taggart, sent a memo to the San Marcos Mayor, City Council, and City

      Clerk summarizing the requests being made by Counterclaimants. Among

      other things, the Mayor, City Council, and City Clerk were informed by their

      staff that Counterclaimant O’Connell’s and Communities’ goal was to “cease

      fluoridation of the drinking water supply in San Marcos” and to stop “the

                                         5
 
                                                                               000060
      addition of fluoride to the Public Drinking water supply.” Mr. Taggart also

      informed the Mayor, City Council and City Clerk that Counterclaimants

      wished to see the “Fluoride feed equipment.”

19.   On August 13, 2013, the San Marcos Executive Director of Public Services

      also informed the Mayor, City Council, and City Clerk that “a policy change

      could result in the discontinuation of the treatment at any time” and that the

      effect on the budget would be a savings in the annual cost to San Marcos of

      fluoridation which amounted to $14,000.

20.   Counterclaimants have never asked San Marcos to remove naturally-occurring

      fluoride in the drinking water.

21.   On April 2, 2015, Counterclaimants submitted to San Marcos a Petition with

      over 2,000 signatures for a Charter Amendment to be placed on the ballot for

      the consideration of voters. Counterclaimants pre-verified that at least 1,634 of

      these signatures were of valid San Marcos voters. This number of voters

      significantly exceeds 5% of the number of San Marcos registered voters.

22.   If approved by the voters, the Charter Amendment would preclude San Marcos

      from adding fluoride to its public water supply. The Petition was titled a

      “PETITION to BAN FLUORIDATION in CITY OF SAN MARCOS

      WATER.” The Charter language proposed by the Petition read:

            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

                                         6
 
                                                                                000061
               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.

23.   Nowhere in the Petition was there any request or requirement that San Marcos

      remove naturally-occurring fluoride that sometimes is found in its source of

      water.

24.   On April 7, 2015, Counterclaimant O’Connell and Defendant Brannon met

      with San Marcos City Manager Jared Miller. Mr. Miller asked multiple

      questions about removing naturally-occurring fluoride. O’Connell and

      Brannon responded to each of his questions, explaining carefully that neither

      they nor Communities, nor the Petition ever mentioned or requested that

      naturally-occurring fluoride be removed from San Marcos water.

25.   The San Marcos City Clerk refused to even count the signatures on the Petition

      submitted to her. On May 6, she announced that “none of the petition papers

      contains an oath or affirmation [and therefore] none of the signatures may be

      counted.”

26.   On May 18, Communities and O’Connell sent a letter 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.

27.   This request was again made on June 16, 2015.




                                           7
 
                                                                                  000062
28.   Counterclaimants made demand on the City of San Marcos to submit the

      proposed charter amendment to the voters as required by section 9.004(a) of

      the Texas Local Government Code. But the City of San Marcos has refused.

29.   On or about June 18, 2015, the City of San Marcos filed suit against

      Counterclaimants, Sam Brannon, and Morgan Knecht seeking declaratory

      relief and a judgment asking Kathleen O’Connell, Sam Brannon, Morgan

      Knecht, and Communities for Thriving Waters – Fluoride Free San Marcos to

      pay the City’s attorney’s fees.

30.   The City seeks a declaration validating the position it took with regard to the

      alleged oath or affidavit requirement for City charter petitions.

31.   The City also alleged that the Petitioned charter amendment

            would prohibit the City of San Marcos from accepting …
            naturally fluoridated surface water and groundwater … forcing
            the City to find, finance and develop a new raw water supply or to
            design and install equipment at its surface water treatment plant
            and ground water wells in an attempt to remove all fluoride
            derivatives….

      San Marcos further alleged that the cost to the City of doing this would exceed

      $97 million.

32.   As a result of the filing of this lawsuit, these knowingly false allegations have

      been repeated by the news media as if they were true.

33.   The effect of these legally and factually baseless claims has been to cast the

      Counterclaimants and their work in a false light, harm their reputations, and




                                         8
 
                                                                                000063
      falsely prejudice the voters of San Marcos against this proposed Charter

      amendment.

                                    V.
                                 MANDAMUS

34.   Counterclaimants submitted to Counterdefendant City of San Marcos a Petition

      for a Charter amendment containing more than 1,634 valid signatures of

      qualified voters of the City of San Marcos, pursuant to section 277.002(a) of

      the Texas Election Code and section 9.004(a) of the Texas Local Government

      Code.

35.   The number of these qualified signatures exceeded the requirements of section

      9.004(a). Five percent of the number of qualified San Marcos voters is

      approximately 964.

36.   “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).

37.   The City of San Marcos had a non-discretionary ministerial duty to put the

      Charter amendment requested by the Petition on the ballot.

38.   By refusing to place the Charter amendment on the ballot, San Marcos abused

      its discretion.

39.   Counterclaimants are entitled to immediate mandamus relief. Without the

      issuance of a mandamus, Counterclaimants may not have a remedy at law.




                                        9
 
                                                                               000064
                                     VI.
                    INJUNCTION AGAINST VIOLATIONS
      OF ART. I, § 2 AND ART. IX, § 5 OF THE TEXAS CONSTITUTION

40.     The city charter petition process implements Article I, section 2 of the Texas

        Bill of Rights, which states that “All political power is inherent in the people.”

        Green v. City of Lubbock, 627 S.w.2d 868, 871 (Tex. App. – Amarillo 1982,

        writ ref’d n.r.e.).

41.     The system of petitioning for a charter amendment “has its historical roots in

        the people’s dissatisfaction with officialdom’s refusal to enact laws.” Green,

        627 S.W.2d at 871. It is “the exercise by the people of a power reserved to

        them.” Taxpayers’ Ass’n of Harris County v. City of Houston, 105 S.W.2d

        655, 657 (Tex. 1937).

42.     As a matter of constitutional law, all rights relating to submitting petitions for a

        vote on a charter amendment should be liberally construed in favor of the

        power reserved to the people. Taxpayers’ Ass’n, 105 S.W.2d at 657.

43.     The law has long been that city charter requirements for amending a charter by

        petition are different than the requirements for passing ordinances by initiative

        and referendum. See Edwards v. Murphy, 256 S.W.2d 470 (Tex. Civ. App. –

        Fort Worth 1953, dism’d).

44.     The San Marcos City Charter has only one section, 12.11, expressly defining

        the process for amending the City Charter. It is titled “Amending the City

        Charter” and reads in its entirety:



                                              10
 
                                                                                    000065
              Amendments to this Charter may be framed and submitted to the
              voters of the City in the manner provided by state law.

      (emphasis supplied).

45.   This section 12.11 Charter provision is consistent with Art. XI § 5 of the

      Texas Constitution which says the “amendment of charters is subject to such

      limitations as may be prescribed by the Legislature.”

46.   San Marcos has transgressed this constitutional provision by imposing

      signature validation requirements that are more onerous than what is

      specifically prescribed by the Legislature – e.g. which are more restrictive than

      and not consistent with Election Code section 277.002(a).

47.   With respect to the Counterclaimants’ fluoridation petition, San Marcos has

      taken the position that the criteria for establishing the validity of Charter

      amendment petitions is not found in state law, but rather in a section of the San

      Marcos Charter, section 6.03, which is not even mentioned by the Charter

      section 12.11 entitled “Amending the City Charter.” Section 6.03 references

      petitions for ordinances rather than Charter amendments.

48.   Because the submission of signatures verified under oath is required to place a

      citizen-initiated ordinance on the ballot, San Marcos takes the position that a

      similar oath or verification is required for a petition to amend the Charter.

49.   By adding this onerous requirement that State statutes do not prescribe, San

      Marcos violates Art. XI, § 5 of the Texas Constitution. By imposing onerous

      oath and verification requirements for signatures on petitions to amend the City


                                         11
 
                                                                                  000066
      Charter, San Marcos is diminishing the powers reserved to the people in

      violation of Article I, section 2 of the Texas Constitution.

50.   San Marcos has violated Counterclaimants’ constitutional rights by failing and

      refusing to count the signatures on the submitted P for tition, and by failing and

      refusing to place Counterclaimants’ petitioned Charter Amendment on the

      November 3, 2015 election ballot.

51.   The City’s failure to count the signatures on the Petition and its failure to place

      the Charter Amendment on the ballot before August 24, 2014 tends to render

      any other judgment for declaratory relief ineffectual.

52.   Counterclaimants are entitled to injunction under principles of equity and the

      law of Texas relating to injunctions.

53.   Without injunctive relief, Counterclaimants will suffer irreparable injury by:

      losing their right to vote on a Charter Amendment on November 3, 2015;

      losing their rights to associate with others for the purpose of securing passage

      of the proposed charter amendment on November 3, 2015; and all value of

      their petition which was created, circulated and secured at great dedication of

      irreplaceable time and significant cost.

54.   Counterclaimants’ losses cannot be recovered in damages against San Marcos

      because: a) San Marcos retains sovereign immunity from suits for damages;

      and b) these losses cannot be fully measured by any certain pecuniary standard.

55.   Counterclaimants ask that San Marcos be enjoined from denying their

      Constitutional right to seek amendment of the Charter by petition and that San

                                         12
 
                                                                                 000067
      Marcos be ordered to place Counterclaimants’ Charter amendment regarding

      fluoride on the ballot. See Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex.

      2011).


                                 VII.
                          DECLARATORY RELIEF


56.   Pleading in the alternative, if as San Marcos contends, City Charter section

      6.03 and/or Texas Election Code section 277.004 are correctly interpreted to

      require Counterclaimants to submit charter petitions that are affirmed under

      oath in order to establish the right to get a proposed charter amendment on the

      ballot, Counterclaimants seek a declaration pursuant to Chapter 37 of the Texas

      Civil Practice and Remedies Code that section 6.03 and section 277.004 as

      applied to Counterclaimants are invalid as inconsistent with the First and

      Fourteenth Amendments to the United States Constitution.

57.   There is no indication of fraud or invalidity of the 1,634 already-verified

      signatures that were submitted. In this context, to require these signatures to

      be submitted under oath would serve no rational purpose. A requirement for

      an oath or affirmation is not narrowly tailored to advance a compelling state

      interest.

58.   Counterclaimants in addition seek a declaration that an ordinance putting the

      anti-fluoride charter amendment on the ballot would be valid.




                                        13
 
                                                                                000068
59.       Counterclaimants in addition seek recovery from San Marcos of attorney’s fees

          and costs incurred before this Court and any appellate court pursuant to

          Chapter 37 of the Texas Civil Practice and Remedies Code.


                                        PRAYER


       For the reasons given above, Counterclaimants Communities for Thriving Waters

– Fluoride-Free San Marcos and Kathleen O’Connell respectfully ask the Court to grant

them the following: a writ of mandamus and injunction ordering Counter-Defendant City

of San Marcos to place Counterclaimants’ proposed Charter amendment on the

November 3, 2015 election ballot. Additionally, but only in the event that the Court

agrees with San Marcos’ contention that City Charter section 6.03 and Texas Election

Code section 277.004 require Charter Petition signatures to be verified under oath,

Counterclaimants seek a declaration that Charter section 6.03 and Texas Election Code

section 277.004 are invalid as applied to Counterclaimants’ petition; attorney’s fees under

Texas Civil Practice and Remedies Code section 37.008; and any other relief to which

they may be entitled.

                                                        Respectfully submitted,


                                                        /s/ Brad Rockwell
                                                        Brad Rockwell
                                                        SBT No. 17129600

                                                        FREDERICK, PERALES,
                                                        ALLMON & ROCKWELL, P.C.
                                                        707 Rio Grande St., Ste. 200
                                                        Austin, Texas 78701
                                                        (512) 469-6000
                                            14
 
                                                                                     000069
         (512) 482-9346 facsimile
         brad@LF-lawfirm.com

         ATTORNEYS FOR KATHLEEN
         O’CONNELL AND
         COMMUNITIES FOR
         THRIVING WATER –
         FLUORIDE FREE SAN
         MARCOS




    15
 
                                    000070
                            CERTIFICATE OF SERVICE

By my signature, below, I certify that on August 4, 2015, a true and correct copy of the
foregoing document was served upon counsel to all parties City of San Marcos via e-
service e-mail in accordance with the Texas Rules of Civil Procedure

                                                       /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 facsimile
mcosentino@sanmarcostx.gov

FOR SAM BRANNON:
Lynn Peach
174 S. Guadalupe Street, No. 101
(512) 393-9991
(888) 428-0468 facsimile
lynn@lynnpeachlaw.com

FOR MORGAN KNECHT:
Craig Young
108 E. San Antonio St.
San Marcos, Texas 78666
(512) 847-7809
(512) 353-1219 facsimile
cyoung@lawyer.com
 




                                            16
 
                                                                                   000071
                                                                        FILED
                                                                        7/29/2015 4:09:20 PM
                                                                        Beverly Crumley
                                                                        District Clerk
                                                                        Hays County, Texas
                                         CAUSE NO. 15-1266



CITY OF SAN MARCOS, TEXAS                         §           IN THE DISTRICT COURT
                                                  §
                                                  §
     Plaintiff and Counter-Defendant              §
                                                  §
v.                                                §
                                                  §
SAM BRANNON, COMMUNITIES FOR                      §
THRIVING WATER-FLUORIDE FREE                      §        OF HAYS COUNTY, TEXAS
SAN MARCOS, AND                                   §
KATHLEEN O’CONNELL                                §
                                                  §
      Defendants and Counter-claimants            §
                                                  §
And                                               §
                                                  §
MORGAN KNECHT                                     §
                                                  §
      Defendant                                   §           274TH JUDICIAL DISTRICT
                                                  §

 COUNTER-DEFENDANT CITY OF SAN MARCOS’ PLEA TO THE JURISIDICTION
            ON COUNTERCLAIMS FOR MANDAMUS RELIEF

TO THE HONORABLE JUDGE OF THIS COURT:

         The City of San Marcos, Plaintiff and Counter-Defendant, presents this Plea To The

Jurisdiction in response to the requests for mandamus relief presented in the Counterclaims of

Sam Brannon, Kathleen O’Connell and Communities For Thriving Water and in the Motion For

Summary Judgment filed by Defendants and Counterclaimants Kathleen O’Connell and

Communities For Thriving Waters-Fluoride Free San Marcos. The City of San Marcos hereby

requests the entry of an order granting this Plea to the Jurisdiction and dismissing those claims,

in their entirety, for want of jurisdiction.




                                                  1
                                               Appendix - D                               000049
                                        1. BACKGROUND

        The City of San Marcos filed this case on June 18, 2015 seeking a declaratory judgment

that a petition circulated and filed by Defendants and Counter-claimants to place a proposed

amendment to the San Marcos City Charter on the ballot at an election in November 2015 is

void.

        After waiting a month to do so, Sam Brannon, Kathleen O’Connell, and Communities

For Thriving Water – Fluoride Free San Marcos (Communities) filed their original answers and

counterclaims requesting, among other things, a writ of mandamus to compel Plaintiff and

Counter-Defendant, the City of San Marcos, to place their proposed charter amendment on the

ballot. On July 23, 2015, Communities and Kathleen O’Connell filed a motion for summary

judgment on all of their counterclaims including their counter-claim for mandamus relief. On the

same day, they filed a motion requesting the Court to set and hear their motion for summary

judgment on an expedited basis on August 5, 2015 with less than 21 days notice to the City.

        All pending counterclaims for mandamus relief in this case are based on the contention

that the City of San Marcos has a non-discretionary duty imposed by law -- Section 9.004 of the

Texas Local Government Code -- to place their proposed charter amendment on the ballot.

                     2. LIMITS ON DISTRICT COURT JURISDICTION

        Article 5, §8 of the Texas Constitution, provides, in pertinent part, that:

               “District Court jurisdiction consists of exclusive, appellate, and original

               jurisdiction of all actions, proceedings, and remedies, except in cases

               where exclusive, appellate, or original jurisdiction may be conferred by

               this Constitution or other law on some other court, tribunal, or

               administrative body.” [Emphasis not in original text].



                                                  2

                                                                                         000050
               3. MANDAMUS JURISDICTION IN ELECTION MATTERS

       Section 273.061 of the Texas Election Code grants original jurisdiction to the Texas

Supreme Court or a court of appeals to issue a writ of mandamus in election matters. It provides

as follows:

       §273.061. Jurisdiction

       “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.”

       In this case, Counter-claimants are seeking a writ of mandamus based upon their

contention that the City of San Marcos has a duty imposed by Section 9.004 of the Texas Local

Government Code to place their proposed charter amendment on the ballot. Because original

jurisdiction to issue such a writ has been granted to the Texas Supreme Court or a court of

appeals by the Texas Election Code, this Court has no jurisdiction to grant such relief and it

would act in violation of Article 5, §8 of the Texas Constitution if it were to do so. Mandamus

relief in such election matters lies exclusively in the appellate courts of this state and not in the

district courts. See, Bejarano v. Moody, 901 S.W.2d 570, 571 (Tex. App. – El Paso 1995,

original proceeding).

    4. ALL COUNTERCLAIMS FOR MANDAMUS RELIEF MUST BE DISMISSED

        This Court cannot reach or consider the merits of the pending counterclaims for

mandamus relief because it lacks subject matter jurisdiction regarding those claims. Subject

matter jurisdiction is essential to a court’s power to decide a case. Texas Association of Business



                                                 3

                                                                                            000051
v. Texas Air Control Board, 852 S.W.2d 440, 443 (Tex. 1993). The absence of subject-matter

jurisdiction may be raised by a plea to the jurisdiction or by a motion for summary judgment.

Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A court must not

act without determining that it has subject-matter jurisdiction to do so. Bland, Id. In this case, it

appears from the face of the pleadings that this Court does not have subject matter jurisdiction to

issue a writ of mandamus as requested in the counterclaims filed herein by Sam Brannon,

Kathleen O’Connell, and Communities For Thriving Water – Fluoride Free San Marcos. The

only appropriate action for this Court to take with regard to those counterclaims is to enter an

order dismissing them for want of jurisdiction.

       WHEREFORE, PREMISES CONSIDERED, Counter-Defendant City of San Marcos,

Texas requests that this Plea To The Jurisdiction be set for hearing and considered before any

hearing is conducted on the merits of any pending counterclaims for mandamus relief including

those contained in the Motion For Summary Judgment filed by Communities For Thriving Water

– Fluoride Free San Marcos and Kathleen O’Connell. Counter-Defendant requests the entry of

the attached order granting this plea and dismissing all counterclaims for mandamus relief filed

in this case by Sam Brannon, Communities For Thriving Water-Fluoride Free San Marcos, and

Kathleen O’Connell for lack of jurisdiction.

                                               Respectfully submitted,

                                               SAN MARCOS CITY ATTORNEY’S OFFICE

                                               Sam Aguirre: Bar No. 00937520
                                               Jacque Cullom: Bar No. 05212050

                                               Assistant City Attorneys

                                               By:    /s/ Michael J. Cosentino
                                                      Michael J. Cosentino, City Attorney
                                                      mcosentino@sanmarcostx.gov

                                                  4

                                                                                            000052
                                                   Texas Bar No. 04849600
                                                   630 East Hopkins
                                                   San Marcos, Texas 78666
                                                   Telephone: (512) 393-8151
                                                   Facsimile: (855) 759-2846

                                            Attorneys for Plaintiff and Counter-Defendant
                                            City of San Marcos, Texas


                                CERTIFICATE OF SERVICE

By my signature, below, I certify that on July 29, 2015 a true and correct copy of the foregoing
document was served upon counsel for all parties listed below via e-file e-mail in accordance
with Texas Rules of Civil Procedure.


                                                   /s/ Michael J. Cosentino
                                                   Michael J. Cosentino

FOR COMMUNITIES FOR THRIVING WATERS – FLUORIDE FREE SAN MARCOS AND
KATHLEEN O’CONNELL

Brad Rockwell
700 Rio Grande, Ste. 200
Austin, Texas 78701
(512) 469-6000
(512) 482-9346 facsimile
Brad@LF-Lawfirm.com

FOR SAM BRANNON

Lynn Peach
174 S. Guadalupe Street, No. 101
San Marcos, Texas 78666
(512) 393-9911
(888) 428-0468 facsimile
lynn@lynnpeach.com




                                               5

                                                                                       000053
FOR MORGAN KNECHT

Craig Young
108 E. San Antonio Street
San Marcos, Texas 78666
(512) 847-7809
(512) 353-1219 facsimile
cyoung@lawyer.com




                            6

                                000054
7

    000055
                                                                FILED
                                                                8/5/2015 7:04:35 AM
                                                                Beverly Crumley
                                                                District Clerk
                                                                Hays County, Texas
                                 CASE NO. 15-1266

CITY OF SAN MARCOS, TEXAS,                    §
   Plaintiff and Counter-Defendant,           §
                                              §   IN THE DISTRICT COURT
v.                                            §
                                              §
COMMUNITIES FOR THRIVING                      §
WATER-FLUORIDE FREE SAN                       §
MARCOS, KATHLEEN                              §   OF HAYS COUNTY, TEXAS
O’CONNELL, and SAM                            §
BRANNON                                       §
   Defendants and Counter-claimants,          §
                                              §
and                                           §   274TH JUDICIAL DISTRICT
                                              §
MORGAN KNECHT,                                §
  Defendant.                                  §


                           RESPONSE
                    OF COUNTERCLAIMANTS
              COMMUNITIES FOR THRIVING WATER-
      FLUORIDE FREE SAN MARCOS, AND KATHLEEN O’CONNELL
                  TO THE CITY OF SAN MARCOS’
                   PLEA TO THE JURISDICTION

TO THE HONORABLE JUDGE OF THE COURT:

       COME NOW Communities for Thriving Water Fluoride-Free San Marcos

(“Communities”), and Kathleen O’Connell (collectively “Defendants” or

“Counterclaimants”), and files this response to Counter-Defendant City of San Marcos’

Plea to the Jurisdiction.




                                       Appendix - E
                                                                                  000072
                                   I.
                    DISTRICT COURTS HAVE JURISDICTION
             TO ISSUE WRITS OF MANDAMUS IN ELECTION DISPUTES

       The City of San Marcos contends that the Court has no jurisdiction over

Counterclaimants’ claim for a writ of mandamus. The sole authority cited by the City is

Bejarano v. Moody, 901 S.W.2d 570 (Tex. App. – El Paso 1995, orig. proceeding).

Bejarano, however, is an outlier, without precedent, that contradicts the rulings of the

Supreme Court and other courts. Bejarno relied on Election Code § 273.061, which

simply says a court of appeal or the Supreme Court “may issue a writ of mandamus . . . in

connection with the holding of an election.” Bejarno interpreted the option provided by

section 273.061 as a grant of exclusive jurisdiction, even though the language of the

statute does not say the grant of discretionary authority to the appellate courts is

exclusive.

       The Supreme Court has recognized the right to bring original mandamus

proceedings in district court against a governmental entity or government officials. In

Vondy v. Comm’ners 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




                                              2

                                                                                       000073
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 citizens

petition. 806 S.W.2d 791, 792-794 (Tex. 1991). “A writ of mandamus will issue to

compel a public official to perform a ministerial act [or] to correct a clear abuse of

discretion by a public official.” Id. at 793.

       The fact that the Election Code also grants appellate courts original jurisdiction in

election cases does not deprive the District Court of jurisdiction.


                                          PRAYER


       For the reasons given above, Counterclaimants Communities for Thriving Waters

– Fluoride-Free San Marcos and Kathleen O’Connell ask the Court to deny Counter-

Defendant City of San Marcos’ Plea to the Jurisdiction.

                                                         Respectfully submitted,


                                                         /s/ Brad Rockwell
                                                         Brad Rockwell
                                                         SBT No. 17129600

                                                         FREDERICK, PERALES,
                                                         ALLMON & ROCKWELL, P.C.
                                                         707 Rio Grande St., Ste. 200
                                                         Austin, Texas 78701
                                                         (512) 469-6000
                                                         (512) 482-9346 facsimile

                                                3

                                                                                     000074
    brad@LF-lawfirm.com

    ATTORNEYS FOR KATHLEEN
    O’CONNELL AND
    COMMUNITIES FOR
    THRIVING WATER –
    FLUORIDE FREE SAN
    MARCOS




4

                          000075
                            CERTIFICATE OF SERVICE

By my signature, below, I certify that on August 5, 2015, a true and correct copy of the
foregoing document was served via e-file e-mail and by hand delivery on the parties
below.

                                                       /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 facsimile
mcosentino@sanmarcostx.gov

FOR SAM BRANNON:
Lynn Peach
174 S. Guadalupe Street, No. 101
(512) 393-9991
(888) 428-0468 facsimile
lynn@lynnpeachlaw.com

FOR MORGAN KNECHT:
Craig Young
108 E. San Antonio St.
San Marcos, Texas 78666
(512) 847-7809
(512) 353-1219 facsimile
cyoung@lawyer.com




                                            5

                                                                                   000076
Appendix - F
               000120
                                                                                     FILE COPY


                      THE SUPREME COURT OF TEXAS
                      Post Office Box 12248
                      Austin, Texas 78711
                                                                            (512) 463-1312



                                      September 04, 2015

Mr. Michael John Cosentino                       Mr. Craig F. Young
City of San Marcos                               The Young Law Firm
630 E. Hopkins                                   108 E. San Antonio
San Marcos, TX 78666                             San Marcos, TX 78666

Mr. Brad Rockwell                                Mr. William M. (Mick) McKamie
Lowerre Frederick Perales                        McKamie Krueger LLP
Allmon & Rockwell                                941 Proton Road
707 Rio Grande, Suite 200                        San Antonio, TX 78258
Austin, TX 78701

RE:    Case Number: 15-0632
       Court of Appeals Number:
       Trial Court Number:

Style: IN RE SHANNON DORN, KATHLEEN O'CONNELL, COMMUNITIES FOR
       THRIVING WATERS - FLOURIDE-FREE SAN MARCOS, AND MORGAN
       KNECHT


Dear Counsel:

       The Supreme Court of Texas denied the petition for writ of mandamus on August 28,
2015. See TEX. R. APP. P. 52.3(e). Justice Brown, joined by Justice Green, delivered a
concurring opinion in the denial of the petition for writ of mandamus. Justice Devine, joined by
Justice Lehrmann, delivered a dissenting opinion from the denial of the petition for writ of
mandamus in the above-referenced case


                                                   Sincerely,



                                                   Blake A. Hawthorne, Clerk

                                                   by Claudia Jenks, Chief Deputy Clerk




                                        Appendix -G
                                     FILE COPY


THE SUPREME COURT OF TEXAS
Post Office Box 12248
Austin, Texas 78711
                             (512) 463-1312
                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 BROWN , joined by JUSTICE GREEN , concurring in the denial of the petition for writ
of mandamus.


       On August 28, 2015, the Court issued an order denying the relators’ petition for writ of

mandamus in this case. I write to provide some explanation for that denial and to distinguish this

case from a seemingly similar matter on which we recently ruled.

       This case concerns the relators’ effort to amend the city charter of San Marcos to prohibit the

city from using fluoridated water. On April 2, 2015, the relators submitted a petition seeking that the

proposed amendment be included on the city’s general-election ballot for November 3, 2015. Under

section 3.005(c)(2) of the Election Code, the latest date any proposed city charter amendments could

be added to the November ballot was August 24, 2015.

       On May 5, 2015, the city clerk informed the relators that the petition was invalid because it

did not include 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.” The parties dispute whether the city charter requires

such an oath or affirmation in this instance.

        The relators sent letters to the city on May 18 and June 16 insisting that city officials had

improperly refused to perform ministerial duties regarding the petition and demanding that they do

so immediately. But the relators took no legal action to force the city’s hand. Instead, on June 18 the

city filed a declaratory-judgment action in district court in Hays County. Despite the looming

deadline, the relators waited until July 17 to answer the city’s lawsuit and counterclaim for

declaratory, injunctive, and mandamus relief—more than ten weeks after the city had refused the

petition.

        On August 14, the trial court ruled for the relators and ordered the city to review their petition

without requiring any affirmation or verification of the signatures. The city filed a notice of appeal

the next day, staying any further action by the trial court. On August 21, six days after the city filed

its notice of appeal, the relators sought mandamus relief in this Court.

        We deploy mandamus as an extraordinary and discretionary remedy, not as a matter of right.

Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (citing Callahan v. Giles, 137 Tex.

571, 575, 155 S.W.2d 793, 795 (1941)). And though mandamus is not an equitable remedy, equitable

principles govern its issuance. Id. (citations omitted). “One such principle is that ‘[e]quity aids the

diligent and not those who slumber on their rights.’” Id. (quoting Callahan, 137 Tex. at 576, 155

S.W.2d at 795).

        The relators knew on May 5 that the city had refused to consider their petition. Yet with the

August 24 statutory deadline less than 16 weeks away, the relators waited more than ten weeks

                                                    2
before seeking mandamus relief from the district court. Even then, the relators sought mandamus

only in response to the city’s request for declaratory relief, and only after the city’s lawsuit had been

on file for nearly a month. To top it off, it took the relators almost a week to ask for a mandamus

from this Court once the city had appealed the trial court’s ruling. By then the statutory deadline was

just three days away.

        The relators have offered no explanation for their failure to diligently pursue the remedies

available to them. Instead, they blame the city for employing “procedural maneuvers” and “doing

nothing to resolve its claims in a timely manner” once it had filed its lawsuit. But nothing the city

did or did not do absolves the relators from their duty to diligently pursue their rights. We will not

grant extraordinary remedies to litigants who “slumber on their rights” and then demand expedited

relief. Callahan, 137 Tex. at 576, 155 S.W.2d at 795; see also In re Int’l Profit Assocs., 274 S.W.3d

672, 676 (Tex. 2009) (per curiam) (“delaying the filing of a petition for mandamus relief may waive

the right to mandamus unless the relator can justify the delay”).

        The relators’ failure to diligently pursue relief likewise belies their justification for not first

seeking mandamus in the court of appeals. The rules provide that “[i]f [a] petition is filed in the

Supreme Court without first being presented to the court of appeals, the petition must state the

compelling reason why the petition was not first presented to the court of appeals.” Tex. R. App. P.

52.3(e). In this case, the relators assert that because of the impending statutory deadline, they “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.” Yet as the urgency the relators face is of their own

making, it is no excuse for skipping past the court of appeals. Moreover, the fourteen courts of

                                                    3
appeals have mandamus jurisdiction for a reason. This Court cannot be the sole arbiter of expedited

extraordinary relief in a state of nearly 30 million people spread out across 254 counties.

        The dissent draws some comparisons between this case and In re Woodfill, ___ S.W.3d ___,

2015 WL 4498229 (Tex. July 24, 2015) (per curiam). In Woodfill, we granted mandamus relief to

order the City of Houston to either repeal an ordinance or submit it to the voters for approval in the

next general election. Id. at *7. But Woodfill is easily distinguished from this case. For instance, the

petition organizers in Woodfill gathered their signatures and submitted their petition over a year

before the statutory deadline—not less than six months before as the relators in this case. Id. at *2.

The Woodfill petition organizers also sued the city in district court for declaratory and injunctive

relief immediately upon its rejection of their petition. Id. at *3. In addition, within a week of the city

rejecting the petition, the petition organizers filed an original mandamus proceeding in the court of

appeals. Id. The same day the court of appeals denied that mandamus, the petition organizers filed

a supplemental petition in district court, requesting a writ of mandamus from that court. Id. These

early attempts at extraordinary relief were denied in light of the appellate remedy the petition

organizers could pursue once they had obtained a final judgment in their action for declaratory and

injunctive relief. See id. It was only after that appellate remedy later proved inadequate, and—unlike

this case—after we had received full briefing from the petition organizers and the city, that this Court

granted mandamus on July 24, 2015. Id. at *6–7. The relatively short-lived and sporadic activity in

the case at bar bears little resemblance to the protracted and relentless litigation that finally resulted

in a mandamus in Woodfill.



                                                    4
        Process matters. Regardless of the merits of their claims, the relators in this case have failed

to show, under this Court’s well-established rules, principles, and expectations, that they are entitled

to the extraordinary relief they seek.



                                                        ______________________________
                                                        Jeffrey V. Brown
                                                        Justice

OPINION DELIVERED: September 4, 2015




                                                   5
                             03-15-00518-CV                                  1




 1                        REPORTER'S RECORD
                        VOLUME 3 OF 3 VOLUMES
 2                  TRIAL COURT CAUSE NO. 15-1266
                                                 FILED IN
              COURT OF APPEALS CASE NO. 03-15-00518-CV
                                                      3rd COURT OF APPEALS
 3                                                        AUSTIN, TEXAS
                                                      8/27/2015 9:16:48 AM
 4   CITY OF SAN MARCOS, TEXAS,           ) IN THE    DISTRICT COURT
                                          )             JEFFREY D. KYLE
                                                              Clerk
 5                                        )
                Plaintiff,                )
 6                                        )
     VS.                                  )
 7                                        )
                                          ) HAYS COUNTY, TEXAS
 8   SAM BRANNON, COMMUNITIES             )
     FOR THRIVING                         )
 9   WATER-FLUORIDE FREE SAN              )
     MARCOS, MORGAN KNECHT AND            )
10   KATHLEEN O'CONNELL,                  )
                                          )
11                                        )
                Defendants.               ) 274TH JUDICIAL DISTRICT
12

13

14

15                   ------------------------------

16                       PLEA TO THE JURISDICTION

17                   ------------------------------

18

19

20

21         On the 12th day of August, 2015, the following

22   proceedings came on to be heard in the above-entitled

23   and numbered cause before the Honorable R. Bruce Boyer,

24   Judge presiding, held in San Marcos, Hays County, Texas;

25         Proceedings reported by machine shorthand.

                              Appendix- H

                    GRACE C. DUNCAN, CSR 4278     (512) 393-7705
           712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX   78666
                                                                           2




 1                        A P P E A R A N C E S

 2   FOR THE PLAINTIFF:

 3       Mr. Michael J. Cosentino
         City Attorney - City of San
 4       Marcos
         630 East Hopkins
 5       San Marcos, Texas 78666
         SBOT: #04849600
 6       Phone: (512) 393-8153
         Fax: (512) 393-3983
 7       mcosentino@sanmarcostx.gov

 8
     FOR THE DEFENDANTS, COMMUNITIES FOR THRIVING
 9   WATER-FLUORIDE FREE SAN MARCOS AND KATHLEEN O'CONNELL:

10       Mr. Bradley L. Rockwell
         FREDERICK, PERALES, ALLMON &
11       ROCKWELL, P.C.
         707 Rio Grande
12       Suite 200
         Austin, Texas 78701
13       SBOT: #17129600
         Phone: (512) 469-6000
14       Fax: (512) 482-9346
         Brad@LF-Lawfirm.com
15

16   FOR THE DEFENDANT, SAM BRANNON:

17       Ms. S. Lynn Peach
         LAW OFFICE OF LYNN PEACH
18       174 S. Guadalupe Street
         No. 101
19       San Marcos, Texas 78666
         SBOT: #00792746
20       Phone: (512) 393-9991
         Fax: (888) 428-0468
21       Lynn@lynnpeachlaw.com

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                   GRACE C. DUNCAN, CSR 4278     (512) 393-7705
          712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX   78666
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 1   FOR THE DEFENDANT, MORGAN KNECHT:

 2       Mr. Craig F. Young
         THE YOUNG LAW FIRM
 3       108 E. San Antonio Street
         San Marcos, Texas 78666
 4       SBOT: #00786367
         Phone: (512) 847-7809
 5       Fax: (512) 353-1219
         Cyoung@lawyer.com
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                   GRACE C. DUNCAN, CSR 4278     (512) 393-7705
          712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX   78666
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 1                     (Proceedings had which are not herein

 2                     transcribed)

 3                     MR. COSENTINO:        All right.      Your Honor, if

 4   the Court has concluded ruling on the evidentiary

 5   matters and the affidavits, may we be heard as to

 6   questions of jurisdiction in this case?

 7                     THE COURT:      Yes, sir.

 8                     MR. COSENTINO:        All right.      Your Honor,

 9   we -- we did present our original plea to the

10   jurisdiction on July the 29th.             We've -- we've had some

11   correspondence with the Court about the particular

12   holding -- or whether there's a holding in the case --

13   the Seven Points case.

14                     Mister -- Mr. Rockwell has asserted that

15   somehow the -- a statement in a footnote in the

16   In Re Woodfill case has arisen to a holding in that

17   case.     We -- we contend that it's not.             But -- so we do

18   stand behind our plea to the jurisdiction.

19                     We've also reserved, Your Honor, the right

20   to object further about jurisdictional issues as to

21   mandamus only, Your Honor, in our -- in our reply.

22                     And, Your Honor, the pleadings in this case

23   are all about the City of San Marcos has a ministerial

24   duty; the City of San Marcos refused to put it on the

25   ballot.     And, Your Honor, every one of the cases that



                      GRACE C. DUNCAN, CSR 4278     (512) 393-7705
             712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX   78666
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 1   have been cited here by the counter-claimants in this

 2   case where a mandamus issued were cases that were

 3   properly filed against public officials.

 4                  There's no public official in this case.

 5   The city clerk isn't a party in this case.              The city

 6   council members aren't parties in this case.

 7                  So in Coalson, in In Re Roof, in the Blum

 8   versus Lanier case, and in the Woodfill case decided by

 9   the Supreme Court on July the 24th, the parties before

10   the Court, whether it was in the trial court or the --

11   or the Supreme Court or the Court of Appeals, were

12   public officers.

13                  They've cited a case, the Vondy case, last

14   week which -- which involved a request by a constable to

15   set a reasonable salary.        But the parties in that case,

16   Your Honor, were the commissioners court of Uvalde

17   County and three out of four of the county

18   commissioners.

19                  You have no city council members joined in

20   this case.   The city clerk isn't in this case.

21                  So, Your Honor, we -- we still contend that

22   where this case sits right now, that this court has no

23   jurisdiction to issue a writ of mandamus against the

24   City of San Marcos.      And that's the only party that's

25   before the Court today.



                   GRACE C. DUNCAN, CSR 4278     (512) 393-7705
          712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX   78666
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 1   misspoke, Your Honor.       That particular section -- we

 2   have it verbatim, Judge, in our plea to the

 3   jurisdiction.    We copied it as we quoted it.

 4                   THE COURT:     Subchapter D:       Mandamus by

 5   Appellate Court, 27 -- excuse me -- 273.061:

 6   Jurisdiction.

 7                   "The supreme court or a court of appeals

 8   may issue a writ of mandamus to compel the performance

 9   of any duty imposed by law in connection with the

10   holding of an election or a political party convention,

11   regardless of whether the person responsible for

12   performing the duty is a public officer."

13                   Last time I checked, "may" meant

14   discretionary.     "Shall" would be required.

15                   MR. COSENTINO:       Understood, Your, Honor.

16                   THE COURT:     You're arguing this section

17   makes it exclusive jurisdiction to the appellate courts?

18                   MR. COSENTINO:       We're -- we're -- that

19   is -- that is our argument based on the Constitution.

20   But moreover, Your Honor, the reason why that

21   language -- if you look at the last -- the last -- the

22   last phrase of that, regardless of whether the person is

23   a public officer.

24                   District court jurisdiction to issue

25   mandamus generally, right -- generally, is to compel a



                   GRACE C. DUNCAN, CSR 4278     (512) 393-7705
          712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX   78666
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 1   public officer to -- to perform a duty required by law.

 2                   There are no public officers before this

 3   court.     So independent of the -- of the matter raised

 4   last week, what we've raised in our -- in our response

 5   today, Your Honor, they want a mandamus issued against

 6   the City of San Marcos, which, undisputed, is a

 7   home-rule municipal corporation.           It's not a public

 8   officer.

 9                   So independent of 273.061, Your Honor, we

10   would -- we would -- we would contend that the Court

11   doesn't have jurisdiction to issue a mandamus in this

12   case against these parties at this time.

13                   MR. ROCKWELL:      Your Honor, I'm --

14   apologize.     I have to rely on my memory, but I believe

15   it was Friday.     We dropped off a one-page brief and a

16   couple cases specifically addressing the mandamus issue.

17                   One case was Anderson.         And there was a

18   more recent case -- I can't remember the name of it, but

19   I think it might have come out this year -- from the

20   Texas Supreme Court.       And the Texas Supreme Court case

21   was directly on point.       They both were, and they both

22   recognize that trial courts have authority to order

23   mandamus relief over election issues, and that the

24   provision that was cited by opposing counsel for

25   appellate court jurisdiction was in addition to the



                   GRACE C. DUNCAN, CSR 4278     (512) 393-7705
          712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX   78666
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 1   trial court jurisdiction, which also exists, the

 2   difference being a trial court can make findings of fact

 3   and -- and decide disputed fact issues, where an

 4   appellate court cannot do that in a mandamus proceeding.

 5                     And I believe at least one of those cases,

 6   if not both of them, involved a city as a -- as a

 7   defendant -- yeah, here it is.             I'm sorry.      It was

 8   brought to me.

 9                     The -- I believe the 2015 case was against

10   a city council.        And the -- which is a governmental

11   body.

12                     And the -- and the Anderson case --

13                     THE COURT:      That's the City of Seven

14   Points, is it not?

15                     MR. ROCKWELL:       Pardon?

16                     THE COURT:      City of Seven Points, is it

17   not?

18                     MR. ROCKWELL:       Yeah, City of Seven Points.

19                     So that was also -- the City was a party,

20   and the mandamus was what was requested and granted.

21   And both those cases acknowledged that a mandamus is a

22   relief available in trial court for exactly these kinds

23   of election issues.

24                     MR. COSENTINO:        And, Your Honor, the

25   counterclaims that are on file in this case allege that



                      GRACE C. DUNCAN, CSR 4278     (512) 393-7705
             712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX   78666
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 1   the City of San Marcos refused to put it on the ballot.

 2   They complain about the city clerks not counting the --

 3   the signatures on the ballot, but they're not seeking

 4   any mandamus relief against the city clerk in this case,

 5   either, Your Honor.

 6                  So, you know, the -- the Woodfill case

 7   is -- is remarkable in a couple of -- couple of ways.

 8   In that case, Your Honor, the Supreme Court disregarded

 9   the findings of a jury as to the number of valid

10   signatures, disregarded the findings of the trial court

11   regarding the number of signatures, and pretty much held

12   that -- that because the city secretary or city clerk in

13   the City of Houston said that there were enough

14   signatures, that -- that that was dispositive.                And that

15   was the grounds for the mandamus issued in that case.

16                  Here, we don't have those facts.               We have a

17   city clerk who -- who certified that none of the

18   signatures may be counted.

19                  So I don't think the Woodfill case is

20   authoritative here, Your Honor.          And I -- we just -- we

21   would like this court to -- to issue a ruling that --

22   you know, that is -- that's binding and final.                But we

23   don't think that because there's not been a suit filed

24   against the city clerk or the city council members here

25   that a mandamus issues here.         We don't think the trial



                   GRACE C. DUNCAN, CSR 4278     (512) 393-7705
          712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX   78666
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 1   court's jurisdiction to issue a mandamus extends to a

 2   situation where there's not a public officer before it.

 3                  And, Your Honor, they -- there's no secret

 4   here about -- about the city clerk's certification.                   It

 5   happened on May the 5th.

 6                  They've had since May the 5th or May

 7   the 6th to -- to seek mandamus relief in the appropriate

 8   court, and they -- and to join the right parties, and

 9   they have not done so.

10                  MR. ROCKWELL:       Your Honor, the primary

11   section that we're seeking relief under is Local

12   Government Code Section 9.004.          And the duty imposed

13   there is on the governing body, not an individual clerk

14   or not individual city council members.             It's the City

15   itself that has the duty to put the charter amendment on

16   the ballot.

17                  And that's what -- that's the request we're

18   asking for pursuant to 9.004, that the -- the City put

19   the measure on the ballot, not -- not a specific request

20   just to the clerk.

21                  MR. COSENTINO:        Begging Mr. Rockwell's

22   pardon, Your Honor, the statute in question says "the

23   governing body."     And he hasn't sued the governing body.

24                  THE COURT:      He has not sued the government

25   body by naming the City of San Marcos?



                   GRACE C. DUNCAN, CSR 4278     (512) 393-7705
          712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX   78666
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 1                     MR. COSENTINO:        Correct, Your Honor.             The

 2   mandamus lies against a public officer to perform the

 3   non-discretionary duty.           And he -- you know, he didn't

 4   bring the city council members here as council members.

 5   He didn't sue the city clerk here.

 6                     All those other cases that the Supreme

 7   Court has ruled on have been cases where there was a

 8   suit against a public officer.             And even the case that

 9   they cited last week, that Uvalde case, they sued the

10   commissioners court of Uvalde County and three out of

11   the four commissioners.

12                     Now, the court in that -- in that case said

13   three out of four commissioners is enough, but they had

14   the county commissioners [sic] and three county

15   commissioners named in the case.

16                     They're not before the Court.             They can't

17   be -- they can't be served.            They can't be sued and

18   served in time for -- for the August 24th deadline

19   here.

20                     That's not a situation we created, Your

21   Honor.     This -- this is -- on the face of the pleadings,

22   the Court doesn't have jurisdiction to issue a mandamus

23   here.

24                     MR. ROCKWELL:       And, Your Honor, this is a

25   situation they created.           It was the City that brought



                      GRACE C. DUNCAN, CSR 4278     (512) 393-7705
             712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX   78666
