                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-14-00341-CV

                IN RE MILTON JOHNSON, HAZEL EMBRA,
                JOYCE RATTLER, AND LASHUNDA WHITE


                                Original Proceeding



                          MEMORANDUM OPINION

      The Election Code provides a remedy through mandamus “to compel the

performance of any duty imposed by law in connection with the holding of an

election[.]” TEX. ELEC. CODE ANN. § 273.061 (West 2010). In this original proceeding, the

Relators seek a writ of mandamus directing the council members of the City of Hearne

to order a recall election of Council Member Maxine Vaughn. See generally In re Stewart,

No. 09-11-00467, 2011 WL 3847449 (Tex. App.—Beaumont Aug. 21, 2011, orig.

proceeding); In re Jones, 335 S.W.3d 772 (Tex. App.—Beaumont 2011, orig. proceeding);

Duffy v. Branch, 828 S.W.2d 211 (Tex. App.—Dallas 1992, orig. proceeding). We will

conditionally grant mandamus relief.
       The Relators are a former mayor (Milton Johnson) and three city-council

members (Hazel Embra, Joyce Rattler, and Lashunda White) of the City of Hearne. The

Respondents are Vaughn, the City of Hearne, the current mayor (Ruben Gomez),

Council Member Michael Werlinger, and City Secretary Anna Florida.

       Hearne is a home-rule municipality operating under a home-rule charter. See

TEX. LOC. GOV’T CODE ANN. § 5.004 (West 2008). The Charter reserves to the qualified

voters of Hearne the power to recall any elected official of the City “on grounds of

incompetency, misconduct or malfeasance in office.” Hearne, Tex., Home Rule Charter

art. 6, § 6.01 (May 18, 1964, as amended). That power may be exercised by filing with

the city secretary a petition demanding the removal of the elected officer. Id. at § 6.02.

The petition must “be signed by qualified voters of the City equal in number to at least

30% of the number of votes cast at the last regular municipal election of the City, but in

no event less than 150 such petitioners.” Id. When the city secretary presents the recall

petition to the city council, the officer whose removal is sought may, within five days

request a public hearing, which must be held not less than five nor more than fifteen

days after receiving the request for a hearing. Id. at §§ 6.05–6.06. If the officer does not

resign, “it shall become the duty of the city council to order an election and fix a date for

holding such recall election[.]” Id. at § 6.07.

       Johnson and others gathered 397 petition signatures seeking the recall of

Vaughn, and the two petitions with accompanying signatures appear to have been

submitted to Florida on or around July 29, 2014; they each reflect that they were

“issued” to her as City Secretary, and they purport to bear her signature. In a letter


In re Johnson                                                                          Page 2
dated August 6, 2014, the Robertson County Elections Administrator certified that the

petitions bore 349 qualified signatures.    Because 1,041 votes were cast at the last

municipal election on May 10, 2014, the recall proponents presented signatures totaling

more than 30% of the number of votes cast at the last regular municipal election.

       Vaughn requested a public hearing and declined to resign in a letter dated

August 15, 2014. According to the Relators, the petition was scheduled to be discussed

at city-council meetings on August 12, 16, and 18, but those meetings were canceled

because Gomez, Werlinger, and Vaughn were absent, resulting in the lack of a quorum.

The minutes for the August 18 meeting confirm that allegation for that date. At the

August 19 meeting, the council voted 3-3 on the motion to place Vaughn’s recall

election on the ballot for the November 4, 2014 general election; the motion thus failed.

Gomez, Werlinger, and Vaughn voted against scheduling the election. Vaughn’s public

hearing was scheduled for an August 29, 2014 special called council meeting, but when

she did not attend, the meeting was adjourned.

       To date the council has failed to pass a motion that schedules the recall election.

The Charter requires that the recall election be held “not less than twenty-five nor more

than thirty-five days from the date such petition was presented to the City Council or

from the date of the public hearing if one was held.” Id.

       The Relators argue that the Respondents deliberately delayed the process of

scheduling the recall election so that it could not be scheduled for the November 4, 2014

general election. The Respondents reply that the Relators have not shown that the

Respondents will not schedule the recall election for the next uniform election date—the


In re Johnson                                                                       Page 3
May 2015 municipal election. See TEX. ELEC. CODE ANN. § 41.001(a)(1) (West Supp.

2014), § 41.004(a) (West 2010). The Relators note that Vaughn’s term expires in May

2015 and that holding the recall election then will have allowed the Respondents to

“run out the clock” and to thwart the Charter’s recall provisions; they also note that the

uniform election dates in the Election Code do not apply to an election held under a

court order. TEX. ELEC. CODE ANN. § 41.001(b)(3).

        The Respondents argue secondly that, because there is a pending declaratory-

judgment counterclaim1 in a lawsuit in district court in Robertson County that

challenges the sufficiency of the allegations against Vaughn, Hearne has no ministerial

duty to schedule the recall election before the next uniform election date. We disagree;

the pendency of the declaratory-judgment counterclaim has no bearing on the city

council’s ministerial duty under the Charter to order the recall election and to fix a date

for holding it. Duffy, 828 S.W.2d at 214; Burns, 658 S.W.2d at 733-34.

        In a similar case, the Beaumont court stated:

                A writ of mandamus will issue to compel a public official to
        perform a ministerial act. Anderson v. City of Seven Points, 806 S.W.2d 791,
        793 (Tex. 1991). “An act is ministerial when the law clearly spells out the
        duty to be performed by the official with sufficient certainty that nothing
        is left to the exercise of discretion.” Id. … The Charter provides no
        discretion for a council member who is not disqualified to refuse to vote to
        order the recall election. The duty to call the election does not depend on
        whether a council member agrees or disagrees with the advisability of a

1
  The Counterplaintiff is identified as the “City Council of the City of Hearne.” We express no opinion on
the declaratory-judgment counterclaim. See Burns v. Kelly, 658 S.W.2d 731, 733-34 (Tex. App.—Fort
Worth 1983, orig. proceeding). And, we express no opinion on whether the “City Council of the City of
Hearne” is the proper party to contest the sufficiency of the recall petition. See Duffy, 828 S.W.2d at 214
n.3 (citing Burns, 658 S.W.2d at 733 (suit filed by council member); and Blanchard v. Fulbright, 633 S.W.2d
617, 620 (Tex. App.—Houston [14th Dist.] 1982, orig. proceeding) (suit filed by city in and through
individual council members who were the subject of recall petitions)).


In re Johnson                                                                                       Page 4
        recall election. See Duffy, 828 S.W.2d at 213; see also In re Porter, 126 S.W.3d
        708, 711 (Tex. App.—Dallas 2004, orig. proceeding [mand. denied]) (“The
        city council is bound by the terms of the charter as written.”). When the
        petition is properly certified, as provided by the Charter, the Charter
        permits only one action by the City Council: it must “order and hold an
        election within forty-five (45) days to determine whether such officer[s]
        shall be recalled.” Cleveland, Tex., Home Rule Charter art. IX, § 9.08. See
        In re Porter, 126 S.W.3d at 711 (City council had ministerial duty to call the
        recall election once the secretary presented a certificate of sufficiency.).

Jones, 335 S.W.3d at 775-76 (footnote omitted); see also Stewart, 2011 WL 3847449, at *3.

        We likewise hold that, in this case, the Charter permitted only one action by the

Hearne City Council, and that was to order and hold the recall election of Vaughn on

November 4, 2014, as required by the Charter and sections 41.004(a) and 41.001(a)(1) of

the Election Code. Because of the three “nay” votes of Gomez, Werlinger, and Vaughn

at the August 19 council meeting, that action did not occur, and we agree with the

Relators that, under the circumstances of this case, the recall election should not be

further delayed by holding it in May 2015.

        Accordingly, this Court directs Council Members Hazel Embra, Joyce Rattler,

Lashunda White, and Michael Werlinger,2 within seven days of the date of this opinion,

to order the recall election of Council Member Maxine Vaughn and to fix the date for

the recall election, which shall be held within thirty-five days of the date of this opinion.

        After the recall election has been ordered and the date for holding the recall

election has been fixed, Respondent Anna Florida, the City Secretary, shall immediately



2
  The parties have advised us that Mayor Ruben Gomez votes on council matters only if his vote affects
the result. Because of our directive to the Council Members, Mayor Gomez’s vote would not affect the
result, and he therefore is not being directed to vote to order and fix a date for the recall election. Also
because of our directive, Council Member Vaughn’s vote would be moot.


In re Johnson                                                                                        Page 5
file with the Clerk of this Court a certified copy of the City Council’s official action

ordering the recall election.

       We conditionally grant the petition for writ of mandamus. If Respondents do

not comply with this Court’s directives, the writ shall issue.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Petition conditionally granted
Opinion delivered and filed February 2, 2015
[OT06]




In re Johnson                                                                     Page 6
